In a press conference organised in protest of the raids on Delhi riots advocate Mehmood Pracha’s office on 24 December, Justice BG Kolse Patil, former judge, Bombay High Court, senior advocate at Supreme Court Chander Uday Singh and advocate at Supreme Court Prashant Bhushan spoke at Delhi’s Press Club of India on 13 January.
In a release issued by the speakers, they raised “various disturbing” questions about the police’s search of his office premises.
What the Search at Pracha’s Office Was Meant For Vs The Info Seized in 15 Hours
Going on to describe Pracha’s role in aftermath of the Delhi violence of February 2020, the statement reads, “Mehmood Pracha is a prominent lawyer who has been defending several persons accused by the Delhi Police and its special cell, including those accused in the Delhi riots cases. He has also been instrumental in getting FIRs registered against the Delhi Police for their one-sided and malafide investigation resulting in framing the innocent and protecting those guilty in the riots. He has initiated other criminal proceedings against functionaries of the RSS and the BJP for their involvement in recent Delhi riots.”
Coming to 24 December, the day the raid occurred, the statement adds, “On 24th December 2020, the Special Cell of the Delhi Police came to his residence and office ostensibly to execute a search warrant under section 93 of the Criminal Procedure Code, on an FIR no. 212 of 2020 which essentially appears to allege that Mr. Pracha sent emails annexing a complaint of one Sharif Malik, which was signed and thumb marked by Sharif Malik himself, which was fabricated and sent by Pracha to various authorities through his email ID.”
The statement reads that while the search warrant ostensibly authorises the IO to “search for the said incriminating documents and meta data of outbox of email id, ie. mp@legalaxis.net,” in the guise of executing this warrant, the police allegedly wanted to seize the hard disks of his computers.”
Pracha tried to prevent it from happening as it was not authorised by the search warrant, it reads. “However, the police got access to his computer, inserted devices to access and take away whatever information they wanted or could access from his computers, in an operation lasting about 15 hours. Though the search proceedings were ordered to be and were videographed by the police, yet the video of the search operation has not been made available to Mr. Pracha, despite his request. Mr. Pracha has complained that the police officers who came for the search were threatening him by using the name of the Home Minister Amit Shah, and it is therefore imperative that the video recordings be furnished to him without delay,” it adds.
The 3 Disturbing Questions That Arise Out of Police’s Action
“The search/raid of Mr. Pracha’s residence and offices by the special cell raises several very disturbing questions,” the statement read. The three questions are as follows:
1. Why was it necessary to search his computers and information contained in it in order to get access to an email which is stated to have been sent to various authorities including the Commissioner of Police, heading the Delhi Police. That mail would obviously be available to the special cell from the Police Commissioner’s inbox, as well as from all the authorities to whom it was addressed. Obviously therefore the object of the search was to get hold of all the information in his computer systems which not only contained his personal and private information but in particular contained communications between him and his clients which are protected from disclosure by S. 126 of the Indian Evidence Act as well as Rule 17 Part 2 section 2 of the Bar Council of India rules. This is a gross violation of law by the police and totally malafide.
2. Assuming for a moment that it was impossible for the Special Cell to obtain copies of the emails from the recipients, including the Commissioner of Police, why was no summons or order issued under section 91 of the CrPC calling upon Mr. Pracha to produce the allegedly incriminating documents before taking recourse to the drastic remedy of a search and seizure operation? The scheme of the CrPC clearly envisages a summons or order to produce documents or other things before resort is had to search warrants, and this is all the more necessary in a case where the documents are already available on multiple computer systems of the recipients, and there is not even a denial that these were sent from Mr. Pracha’s office.
3. Search warrants under section 93 of the CrPC, can only be obtained:
“(1) (a) Where any Court has reason to believe that a person to whom a summons or order under section 91 or a requisition under sub- section (1) of section 92 has been, or might be, addressed, will not or would not produce the document or thing as required by such summons or requisition, or
(b) where such document or thing is not known to the Court to be the possession of any person, or
(c) where the Court considers that the purposes of any inquiry, trial or other proceeding under this Code will be served by a general search or inspection, it may issue a search- warrant; and the person to whom such warrant is directed, may search or inspect in accordance therewith and the provisions hereinafter contained.
Obviously none of these conditions were satisfied in this case, nor does the Order of the Metropolitan Magistrate record his satisfaction about the existence of these preconditions. If the police wanted a particular email sent by Mr. Pracha to the authorities on behalf of Sharif Malik, they could have asked him to produce that under section 91 of the CrPC. Thus the use of Section 93 to conduct a search and try and take away the hard disks of his computers and/or all information in his computers is not merely illegal and a violation of the evidence Act and Bar Council Rules but is a clearly malafide attempt by the Police to intimidate and harass Mr. Pracha, the statement said.
This illegal search is particularly ominous and sinister in light of the fact that Mr. Pracha has been instrumental in exposing the Delhi Police in its malafide investigation in the Delhi riots and seeking accountability of its officers. The Supreme Court Bar Association and the Bar Association of India have also condemned these raids, as has the Bar Council of Delhi.
(At The Quint, we are answerable only to our audience. Play an active role in shaping our journalism by becoming a member. Because the truth is worth it.)