The Delhi High Court has upheld the right of a detainee to be afforded an opportunity to be heard, and that not having such opportunity would prejudice the detained person. The bench of Justice Vibhu Bakhru was considering a petition filed by Shifa ur Rehman where he challenged an order granting extension of time of investigation and detention to the State which was passed without granting Rehman the opportunity to be heard. The State contended that no purpose would have been served even if such opportunity was granted, however, the court refused to accept this submission and held that the right to consult a legal counsel is guaranteed by the Constitution and cannot be diluted by the State.
Shifa ur Rehman, President of the Alumni Association of the Jamia Millia Islamia, was arrested in April 2020 in the Delhi Violence conspiracy case (FIR No. 59/2020). He filed a petition against the order dated August 8, 2020 passed by Sessions court which allowed extension of period of investigation to the NIA while also extending the period of detention of Rehman and other accused in the FIR.
Rehman, the petitioner, claimed that the order was passed in violation of the principles of natural justice and in violation of his rights under Article 21 of the Constitution. He further contended that he was not afforded adequate opportunity to oppose the respondent‘s application for extension of period for completion of the investigation as he was not granted access to legal assistance. He submitted that despite orders passed by the concerned courts, he was not provided any opportunity to consult or instruct his lawyers.
The petitioner was arrested on April 26, 2020 and on the next day was remanded to police custody and as of May 16, 2020 he was remanded to judicial custody. He contends that the period of ninety days for the completion of investigation as contemplated under Section 167 of CrPC ended on July 26, 2020. On June 15, the court permitted the State to conclude its investigation by August 14, 2020.
The petitioner moved two applications seeking consultation with his legal counsel, which was allowed by the court, however lack of response from jail authorities led to no communication with his counsel. In July, 2020 the IO moved an application seeking extension of the period of investigation and the petitioner‘s detention beyond the period of 90 days up to 180 days. The court partly allowed the same and directed that investigation with respect to the petitioner be completed by August 24, 2020 while also noting down that he was not granted an opportunity to consult with his advocate but was of the view that the same was not a ground to reject the application moved by the IO.
Again, on August 10, application for extension of detention and investigation until September 17, 2020, was filed. The petitioner once again contested the same, inter alia, on the ground that the petitioner was not supplied with a copy of the application and had been denied the opportunity to consult with his lawyer. He further contended that the application was not maintainable since the court had already considered its application for extension earlier and had limited the time until August 24. However, the Sessions court allowed the State’s application for extension of time.
Adv. Abhishek Singh, appearing for Rehman challenged the order on grounds that the impugned order has been passed in violation of the principles of natural justice as the petitioner had been deprived of his right to consult his lawyer; it is violative of Article 21 of the Constitution; the petitioner was not supplied with copy of application; the impugned order amounted to reviewing an earlier order dated July 24, 2020 which is impermissible; the reasons for extending time for completion of the investigation as recorded in the impugned order are not specific reasons and thus not sufficient for extending detention.
The Assistant Solicitor General SV Raju, countered these contentions by stating that the petitioner had no right to be heard to oppose the application seeking extension of time; the impugned order could not be interfered with as the petitioner had not shown that any prejudice was caused to him. He further referred to section 465(1) of CrPC and argued that not granting the petitioner access to his counsel was a mere irregularity and the impugned order could not be interfered with unless it was demonstrated that the same has caused failure of justice.
The court’s findings
At the outset, the court put forth 3 questions that it would address:
(i) Whether the petitioner is entitled to consult with an advocate of his choice and whether his right in this regard has been violated?
(ii) Whether the impugned order is illegal as it amounts to reviewing the earlier order dated 24.07.2020?
(iii) Whether any relief can be granted to the petitioner?
The status report filed by the respondent stated that video conferencing was made available to the petitioner on July 21, 2020 but the same was refused by the petitioner. However, this claim was denied completely and the petitioner submitted that he had not received any intimation regarding the same. The court observed that the status report was thus incorrect, and that the petitioner had not been granted any opportunity to consult with his lawyer. The court observed that It was incumbent on the jail authorities to comply with the court’s orders and arrange for the video-conferencing facility but they completely disregarded both orders.
The court referred to Article 22(1) of the Constitution which states:
“No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.”
The court also cited State of Madhya Pradesh v. Shobharam and Ors. (1966) whereby the apex court held that the right under Article 22(1) of the Constitution extends to any person who is arrested, regardless of the arrest being made under a general or a special statute. “Undeniably, the petitioner has a right to consult a legal practitioner of his choice,” the court observed.
The court then moved on to consider whether the impugned order is illegal as it amounts to review of previous order. The court read into the provision under section 43(2)(b) of UAPA and held that a court is not disabled from considering and allowing multiple applications for extensions, provided it is satisfied with the report regarding the progress of investigation and the specific reasons for detention of the accused.
The court then went on to consider whether violation of principle of natural justice would render the impugned order to be invalid. “The petitioner has to be afforded an opportunity – however truncated it is – to present his reasons why further time for investigation may not be granted,” the court held. The court observed that it may be possible in some cases for the petitioner to bring on record certain facts which may have a bearing on the question regarding the necessity for his detention or the progress of the investigation.
The court thus held that it cannot second guess what view the court might have taken had the petitioner been afforded the opportunity of being heard and thus held that the petitioner was prejudiced due to this.
“This Court is unable to accept that in such cases, it is permissible to not comply with the principles of natural justice on the ground that even if same were complied with, it would serve no useful purpose. The right of a person in detention to consult a legal practitioner of his choice is a right guaranteed by the Constitution of India and it is not open for the State to dilute this constitutional on the ground that no purpose would have been served even if such consultation is permitted,” observed the court.
The court however stated that it was unable to grant any relief since the period of extension sought for in the impugned order had already lapsed and the chargesheet has been filed. Adv. Singh for the petitioner argued that the order be set aside to enable him to get default bail. However, the court did not accept the submission. The only relief the court stated it could grant at this stage is to ensure he has access to legal counsel, which the high court had already ensured.
The petition was accordingly disposed of.