The Delhi High Court last week granted relief to Shifa Ur Rehman, President of the Jamia Milia Islamia Alumni Association, who was arrested under UAPA in connection with the Delhi Riots that erupted in the national capital last year, stating that it is a fundamental right of a person in custody to consult with the lawyer of his choosing, which cannot be diluted by the State.
Shifa Ur Rehman was represented by Advocates Abhishek Singh, Amit Bhalla and Shreshtha Arya.
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 appealed a Sessions Court order dated August 13, 2020, which allowed the prosecution's application under section 43D of the UAPA and extended his investigation and detention until September 17, 2020. Rehman alleged that he was denied a sufficient opportunity to challenge the application for an extension of time to complete the investigation because he was denied access to legal counsel and that, despite instructions from the courts, he was denied the opportunity to consult or advise his lawyers.
Rehman also challenged the order remanding him to police custody on the 14th of August 2020, requesting from the High Court that his detention beyond the 24th of August 2020, which was the last date for completing the investigation in accordance with the earlier orders passed by the concerned court, be declared illegal.
An FIR was registered against Rehman under sec. 147, 148, 149, 120B of Indian Penal Code on (March 6, 2020) 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 Unlawful Activities (Prevention) Act were also included.
On the 26th of April, Rehman was apprehended and remanded in police custody for ten days, until the 6th of May 2020. The prosecution filed a second application, this time requesting a 10-day extension of police custody, which was granted by a Delhi court. He was then remanded in detention by a judge.
The State filed an application for an extension of time to complete the investigation on July 24, 2018, which was partially granted, and the IO was ordered to complete the pending investigation by August 24, 2020. Rehman objected, claiming that the extension of time could not be granted unless he was given an appropriate opportunity to challenge it. In Rehman's case, despite his counsel's repeated appeals to the jail authorities for VC consultations, the request was repeatedly refused.
In the High Court, it was argued on Rehman's behalf that the impugned order violated natural justice standards because he was denied his right to consult his counsel and make any substantive representations in opposition to the State's application for an extension of time to complete the inquiry. Furthermore, it was said that he had not been given a reasonable chance to be heard. Furthermore, it was argued that the reasons recorded in the impugned order for extending the period for completion of the investigation are not specific reasons as specified by Section 43-D of UAPA.
ASG Raju, on the other hand, denied the aforementioned statements, arguing that Rehman had no right to be heard in opposition to the application for an extension of time to complete the inquiry and, as a result, an extension of the term of custody. Furthermore, it was argued that even though Rehman was entitled to consult with his lawyer, the impugned order could not be overturned because Rehman had not shown that he had been prejudiced. The Court determined that the status report submitted by the Jail Superintendent was false and that Rehman was not given any opportunity to consult with his counsel at the relevant 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," the Court observed.
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."
