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Raid at Mehmood Pracha’s Office: is it an attack on the ethical duty of lawyers?

Dated: December 29, 2020

                                                                                                                                                          - By Megha Bhatia

The Delhi Bar Council wrote to the Union Home Minister Amit Shah, demanding urgent action in connection with the police raid on the office of lawyer Mehmood Pracha and the registration of a case against him.

As Advocate Mehmood Pracha’s office was raided last week by the Special Cell of the Delhi Police, the Indian legal community seems to have experienced its own ‘Hans Litten’ moment.

Now, with India’s the supremacy of right-wingism, does India really need to repeat the history of Germany to understand what is really going on in our country? Do more Hans Littens really need us to risk their lives for speaking the truth to power? And above all, should lawyers who perform their obligation to represent clients not be treated as beyond reproach for representing anything fundamental, i.e. the rule of law?

Even if you are not persuaded that lawyers ought to be beyond reproach, at least the moral responsibility put on them to safeguard privileged contact with their clients cannot be taken away in the way it was done in the case of Mr. Pracha.

Though Mr. Pracha was described as “a lawyer who is also a member of the All India Muslim Personal Law Board” by the news, everyone in the legal community has heard of the name of Mr. Mehmood Pracha, at least in New Delhi. 

This is definitely not the first time in his characteristic activist vein that he has served the poor, vulnerable, Muslims. The question is, why should not all of us, as lawyers, be offended by the fact that the police searched his office as a ‘lawyer’? And so his other identities – ‘Muslim’,’ Activist’ or ‘Part of All India Muslim Personal Law Board’ - are insignificant to the larger problem at hand, which is an attack on the ethical duty of lawyers.

 So, what is this version of the Delhi Police Special Cell? They appear to be searching for ‘incriminating records’ applying a search warrant released in FIR No. 212/2020 on December 22, which reads, “Whereas information has been laid before me of the commission of offences punishable under section 182, 193, 420, 468, 471, 472, 473, 120B and it has been made to appear to me that incriminating data comprising false complaint and meta data of outbox of email account which was used to send incriminating documents are essential to the investigation of FIR 212/20 of Police Station Special Cell, New Delhi”.

The number and content of the FIR is that Mr. Pracha had a document (affidavit) notarized by a lawyer who was already dead, indicating the commission of forgery, when filing a bail petition. It also appears that the Delhi Police have a statement from one Irshad Ali who said that Mr. Pracha instigated him to falsely depose him in court.

The team of Mr. Pracha denied the charges as baseless and said they were ‘harassed’ for representing the customers in the case of the CAA and Delhi riots. 

But this case has thrown bigger questions open. Firstly, can the search warrant against a lawyer or lawyer’s office be so worded that police officers say that, as they claim, they can search any computer/hard disc that requires privileged contact between different customers? Secondly, as there are specific laws that include safeguards for lawyers with respect to all professional contact, what does this ‘raid’ really mean and is it acceptable in the eyes of law?

The applicable legal provisions relating to this topic are well established. Each lawyer has a duty to preserve all contact as privileged with his/her/its clients and cannot reveal it without the express consent of the clients, as set out in Sections 126 and 129 of the Indian Evidence Act, 1872. This is echoed in the Rules of the Bar Council of India, which mandate lawyers not to abuse this right of attorney-client in any way. But the legal problem that arises is, will there be a search warrant based on a single broadly worded FIR that requires any of the files, computer and other privileged records of a lawyer to be searched and confiscated blankly?

The intricate legal questions that emerge are more interesting. Both the Indian Evidence Act and the BCI Rules put the responsibility on the lawyer to protect attorney-client privilege. So, if, under whatever reason, the police or some other agency carries out an action that leads to the breach of that right, what are the legal implications for those third parties? Second, if such attorney-client privilege is infringed, what is the lawyers' legal duty on no fault/mistake of the lawyers? Thirdly, and ideally this one is for pure scholarly interest, can all clients bring a representative suit against the prosecutor and/or the police under Order I, Rule 8 of the Civil Procedure Code (CPC)?

Attorney-Client privilege?

It is necessary to remember that in Mr. Pracha’s case, the existing applicable exceptions to attorney-client privilege might not yet be able to explain the raid and the wording of the search warrant. Sections 126-129 of the Indian Evidence Act, dealing with the right of solicitor-client, specify that only clients can waive the privilege, not the attorney, and that the client's waiver should be 'express' (not necessarily in writing).

But what occurred in the present case can arguably be protected by the exception of 'forced disclosure' where, due to pending civil and criminal proceedings, a lawyer may be forced to reveal confidential correspondence. There is no statute or case/judgment (as far as I am aware) that directly sets out the requirements for a lawyer’s office to be so wide-ranging. There are particular requirements in both the Code of Criminal Procedure and the Code of Civil Procedure for the compulsory processing of records (Section 91 of the CrPC) or for the discovery of documents or for questioning (Section 30, Order XI of the CPC), but it is/should be clearly outside the scope of those provisions to provide a search warrant for the seizure of all the hard drives of a lawyer’s office.

Just to remind ourselves again of the importance attached to the privilege of the attorney-client, it may be appropriate to quote a passage cited in R v. Derby Magistrates’ Court by Lord Bingham from Lord Taylor’s judgement: “The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests.”

It is because of this large problem that is at stake here that it is important for the entire Bar and the Bench invested in the justice administration sector to speak up on this subject. Else, we will probably be questioned by potential members of the Bar, where was your council when another Hans Littens was being hounded?

The Letter

The letter reads, “We notice anguish and anger amongst the legal community, primarily because it goes to the very root and independent discharge of responsibility by an Advocate, as provided under the Constitution of India being integral part of the Justice Dispensation System, the Advocates Act, 1961 and the Bar Council of India Rules.”

The letter was signed by Himal Akhtar, Vice-Chairman of the BCD; Rajiv Khosla, Member of the BCD; and KC Mittal, Former Chairman. 

The Bar Council of Delhi (BCD) highlighted sections 126 to 129 of the Indian Evidence Act without going into the factual matrix of the case, which provides legal practitioners with rights in relation to communication with the clients.

“We think the provisions of law cannot be ignored,” the communication states. 

The letter further notes that there is an agreement that the members of the Bar Association/Bar Council will be notified and taken into trust by the Delhi Police in the event of any case against an advocate. 

“This broader understanding is to maintain the harmony and cordiality between the two wings of the justice delivery system. This seems to have not been followed in the present case. While we do not want to go to various asects of the matter, apparently the action of Delhi Police falls short on these aspects, which is a very serious matter as far as the legal community is concerned,” the letter reads. 

On December 24, Pracha, who represented the accused in Delhi riot cases, was raided by Delhi police. The police believed that Pracha's company was looking for “incriminating documents” and meta data from the outbox of the official email ID.

He later moved to Delhi’s Patiala House court to obtain copies of the video footage of the Delhi police raids at his office on Thursday i.e. December 24th, 2020. 

The Court demanded the reply of the Delhi Police to Pracha’s plea and also ordered the investigating officer to be present at the court on the next hearing date, along with the full video footage of the search on the premises of Pracha’s office.