Undue process

The searches carried out last week by the Special Cell of Delhi Police at the offices of two lawyers — one of them, criminal lawyer, Mehmood Pracha, whose firm Legal Axis is defending persons accused in cases related to the Delhi riots in February this year — raise serious questions. These have to do with the state’s duty, in a constitutional democracy, to protect and uphold the fundamental right of an individual to defend himself or herself, even against the state, and to ensure due process in a criminal trial.

The case against the lawyer stems from a bail hearing in August in a Karkardooma court in riot-related cases in which Irshad Ali, a complainant who turned hostile, claimed that Pracha advised him to combine his complaint with a similar one which had the statement of an eye-witness, in order to bolster his case. Ali’s affidavit seeking to club the cases is allegedly notarised under the signature of a lawyer who died three years ago in 2017. The eye-witness, Sharif Malik, stands accused by the Delhi Police of rioting and attempt to murder and is also a complainant in another case. Malik told the Delhi Police that his complaint was drafted under Pracha’s instructions but denied sending the complaint. These developments led additional sessions judge Vinod Yadav, in a carefully worded order in August, to say that “it would be appropriate if the matter is investigated” by an independent agency. As a report in this paper has brought to light, the eye-witness who turned against Pracha and was said to be “absconding and avoiding his arrest” by the police in August has now been granted bail, after the police told the court that he has joined the investigation. The timing of the bail and the case against Pracha, a lawyer representing several cases related to the riots, could be a mere coincidence. However, taken together with acts of omission and commission of the Delhi Police in the matter of the violence that killed 53 persons, such coincidences test the idea of a free and fair criminal trial.

The sanctity of due process lies in not just hearing the accused in court but in also being fair and appearing to be fair in the justice process. Hostile witnesses are unfortunately a common feature of the criminal justice system in the absence of a strong witness protection framework and part of the right to defend oneself is developing a legal strategy with a lawyer to strengthen one’s case. Lawyers defending their clients in cases against the mighty state should not be required to fight two fronts — a battle for their clients in the court, and another for upholding their own freedom and right to defend their clients.