"Right Of A Person In Detention To Consult Lawyer Of His Choice Is A Constitutional Right,State Can't Dilute It": Delhi HC Grants Relief To Shifa Ur Rehman

Observing that it is the constitutional right of a person in detention to consult with the lawyer of his choice which cannot be diluted by the State, the Delhi High Court has last week granted relief to Shifa Ur Rehman, President of the Alumni Association of the Jamia Milia Islamia, arrested charged under UAPA in connection with the Delhi Riots that broke out in the national capital last year.

A single judge bench comprising of Justice Vibhu Bakhru observed thus:

"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."

The observation came after Rehman challenged the order passed by a Sessions Court dated 13th August 2020 allowing prosecution's application under sec. 43D of UAPA and extended the period of investigation and his detention till 17th September 2020. It was therefore claimed by Rehman that he was not afforded adequate opportunity to oppose the application for extension of period for completion of the investigation as he was not granted access to legal assistance and that despite orders passed by the concerned courts, he was not provided any opportunity to consult or instruct his lawyers.

Furthermore, Rehman also challenged the order dated 14th August 2020 remanding him to police custody thereby praying from the High Court that his custody beyond the period of 24th August 2020, which was the last date for completing the investigation in terms of the earlier orders passed by the concerned court, be declared as illegal.

An FIR was registered against Rehman under sec. 147, 148, 149, 120B of IPC on 6th March last year wherein subsequently further offences under sec. 302, 307, 124A, 153A, 186, 353, 395, 427, 435, 436, 452, 454, 109 and 114 of the IPC; sec. 3 and 4 of the Prevention of Damage of Public Property Act, 1984; and sec. 25 and 27 of the Arms Act, 1959 were added. Thereafter, on 19th April offences under sec. 13, 16, 17 and 18 of the UAPA were also included.

Rehman was later arrested on 26th April and was remanded to police custody for a period of 10 days till 6th May 2020. Another application was moved by the prosecution seeking extension of the police custody for a further period of 10 days which was allowed by a Delhi Court. He was then remanded to judicial custody.

On 24th July last year, an application was moved by the State for extension of time for completion of investigation which was partly allowed and the IO was directed to conclude the pending investigation till 24th August 2020. The same was contested by Rehman on the ground that the extension of time should not be allowed unless he had an effective opportunity to oppose the same.

It was also the case of Rehman that despite various requests made by his counsel to the jail authorities for granting facility of VC consultations, the same was denied repeatedly.

It was submitted on behalf of Rehman in the High Court that the impugned order was passed in violation of principles of natural justice as he was deprived of his right to consult his lawyer and make any meaningful submissions to oppose the State's application for extension of time to complete the investigation. Moreover, it was also submitted that he had not been granted a fair opportunity to be heard.

In addition, it was also submitted that that the reasons for extending time for completion of the investigation as recorded in the impugned order are not specific reasons as contemplated under Section 43-D of UAPA.

On the other hand, the aforesaid submissions were refuted by ASG Raju by arguing that Rehman had no right to be heard to oppose the application seeking extension of time for completion of investigation and consequently, extending the period of custody. Moreover, it was also submitted that even assuming that Rehman was entitled to consultation with his advocate, the impugned order could not be interfered with Rehman had not shown that any prejudice was caused to him.

Analyzing the status report by the Jail Superintendent filed in the matter, the Court opined that the same was incorrect and that Rehman was granted any opportunity to consult with his lawyer at the material time.

"Undeniably, the petitioner has a right to consult a legal practitioner of his choice. As discussed above, the petitioner was effectively denied this constitutional right to consult with his advocate." Observed the Court.

Furthermore, the Court went ahead to observe thus:

"The principle that a person against whom an adverse order may be passed, is required to be provided full material on the basis of which such order may be premised, is required to be curtailed to the aforesaid extent but no further. 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 contention that the petitioner has no right to oppose the extension of time for completion of investigation is not persuasive. The conclusion of the learned court to the aforesaid effect is erroneous and therefore set aside."

Title: Shifa Ur Rehman v. NCT of Delhi

Shifa Ur Rehman was represented by Advocates Abhishek Singh, Amit Bhalla and Shreshtha Arya.

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