Raids on premises of advocates: Delhi High Court dismisses plea for guidelines

The Delhi High Court on Wednesday dismissed a writ petition that called for guidelines to be issued so that "privileged communication" between advocates and clients remain protected if raids, searches, or seizures are conducted on the lawyers' premises. (Nikhil Borwankar v. State).The Court saw no reason to entertain the writ petition, observing that there are enough and adequate procedures under the Code of Criminal Procedure (CrPC) as to the method by which searches can be carried out at the premises..Moreover, if any person feels that there is a violation of his rights or privileges, such person can always approach the concerned trial courts or appellate forums over the alleged breach of his or her rights or privileges, it was observed..The Court of law is a court of evidence and it cannot be argued that whenever a search is carried out in the future, there will be a violation of the rights and privileges, the Bench added..Unless and until prima facie facts are established, we are not ready to presume that whenever a raid or search is carried out there will be violation of the right or privileges of the person, the Court concluded..The Bench comprising Chief Justice DN Patel and Justice Jyoti Singh also opined that it cannot issue a general direction to the effect that all such searches on the premises of advocates should be conducted by a "privilged team" or videographed, as sought for by the petitioner..The Court opinined that how searches or raids are to be conducted would depend on the facts and circumstances. In all cases, it may not be possible to videograph the search, the Court opined. .In several cases, searches have to be carried out immediately or at odd hours and it may not be possible to have it videographed. ."There can be any number of permutations and combinations of facts which may not allow the videography. Therefore, as a general rule, we are not inclined to pass any order that search must be carried by ‘privileged team’ with videography as argued by the party in person", the Court said..The petitioner, appearing party in person, had argued that it is not his case that advocates are a separate class of citizens. Rather, it was contended that the communication between a lawyer and his client is privilged and forms a special class of communication. This principle has been followed for long and is one of the founding principles that guides the system, he argued. .While so, he questioned whether the police can, under the garb of an investigation, conduct raids that may affect such privileged communication. .He clarified that it is not his argument that no advocate should be raided under any circumstances. Rather, it was argued that if such a search occures, it should conform to certain guidelines. In these respects, he also relied on Sections 126-129 of the Indian Evidence Act, which deal with the professional communications between lawyers and their clients. . He went on to suggest that two ways to go about raids on lawyers' premises is to video graph the entire incident and to have a "privileged team" conduct the search. He explained that this meant that the search would not be conducted by the investigating officers themselves, but my a special team acting on the instructions of the investigating officer. Such practices have been followed in certain foreign jurisdictions, he pointed out. .Chief Justice Patel, however, opined that what is being asked for goes beyond the scope of the Court's functions and that the Central government may be approached to draft the law on such issues. ."Criminal law ought to be read in light of the facts. If there is violation of privileged communication, then point out that. You should keep in mind all the law. They are bound to keep in mind all the laws ... We are not even inclined to issue notice", the Chief Justice told the petitioner..In its order, the Court added that if any privileged communication is found during the search, then all care will be taken by the Investigating Officers so that the rights or privileges of the parties are not violated, the Court added. ."... we cannot presume in advance the violation of the right or privileges. Such violation of the right or privileges of the parties must be established in the court of law by proving certain basic facts", the Court said further. .With these, among other, observations, the petition was dismissed.