Give documents to Shah -- HC to police

Give documents to Shah -- HC to police
EXPRESS NEWS SERVICE

JANUARY 18: In a judgment of wide significance, the Bombay High Court today held that diamond merchant Bharat Shah is entitled to the First Information Report, (FIR), remand application and legal interview as a fundamental right enjoyed by an accused who is to be communicated the grounds of his arrest.

Justice S S Parkar delivering his order on Shah's bail application directedthat a copy FIR and remand application be furnished by the prosecuting agency ( that is the police) under Section 19 (protection to witnesses) of the Maharashtra Control of Organised Crime Act (MCOCA) 1999 after omitting sensitive portions which disclose identities or addresses of witnesses and which may hamper investigation.

Although the application was for bail, Shah's counsels did not press for the same as they told the court during arguments that they were unable to present his case effectively in the absence of these documents. Justice Parkar said Section 21 (modified application of provisions of the Code) (4) of MCOCA lays down criterion for release of accused on bail.``Since the prayer for bail has not been pressed he is at liberty to move the appropriate court. This liberty was also given to him by the Special Judge but unfortunately after investigations were completed. The application is rejected as not pressed,'' said Justice Parkar.

Justice Parkar said the rights of an accused were enshrined under Article 22 of the Constitution and cannot be overridden by any legislation unless the Article itself is amended.``The accused cannot be expected to make an effective representation unless and until he is made aware or is apprised of the grounds of his arrest in some way if not in full details.'' He said the FIR is a public document and the accused has a right to get a copy of it.``The magistrate is exercising a judicial function and he cannot do so unless he hears both the sides,''he ruled.

He said even the recent SC judgement of D K Basu 1997 while speaking of the right of the accused laid down the corresponding obligations on the part of the prosecuting agency.``The right of the accused also emanates from common law and principles of natural justice. If the provisions of law interpreted by the apex court mandate that the accused is entitled to be apprised of grounds of arrest the prosecuting agency is expected to comply with it.''

The judge said that it is true that neither the courts nor the constitutional provisions provide for written communication. But the State is normally expected to communicate the grounds of arrest in writing which enables the accused to make sufficent representation for restitution of his liberty.``Even if we assume that orally cryptic communication was made it is not sufficient to make effective representation.'' he added.

The judge underlined that while provisions of MCOCA envision stringent punishment for the accused facing prosecution under the law, it is necessary for the prosecuting agency to strictly observe procedure and to ensure that there is no abuse of such powers.``Constitutional provisions, CrPC and MCOCA can be harmonously construed to strike a balance between public interest and individual rights,''he said.

The judge said from the perusal of correspondence it was clear legal interview was sought but denied. He said the right to legal interview is a fundamental right from Article 22 (1) and the minimum that can be done under the rule of law.'' Justice Parkar said Shah is entitled to legal interview which has to be allowed whenever asked for at the convenience of both sides.

The court has agreed to an arrangement whereby Shah's two sons will give a letter of authority to their lawyers intending to meet their father. Public Prosecutor Vijaya Kapase-Tahilramani earlier told the judge it was necessary for security reasons to have proper identification. She said on Wednesday around 10.30 pm a man walked into the Crime Branch office claiming to be Shah's lawyer. She said the police were on their guard against any untoward incidents.

According to a statement faxed on behalf of Shah's family, the``landmark judgment'' of the court was a victory for Shah as the court reaffirmed its commitment to the protection of civil liberties for all citizens. Shah was represented by Ashok Desai, V R Manohar, Shiraz Rahimtoola, M L Ranjit, Amit Desai, Harsh Desai, Vibhav Krishna and Rustom Gagrat. The prosecution was also represented by Special Public Prosecutor Rohini Salian.