NIKHIL BORWANKAR Vs. STATE (NCT) OF DELHI

JUDGEMENT

(1.) Present Public Interest Litigation has been preferred seeking the following reliefs:-

(2.) Petitioner appearing in person is aggrieved by the actions and omissions of the Respondents in effecting search and seizure operations at the premises of Advocates. A direction is sought for framing of mandatory procedures / guidelines to be followed by Police / Investigating Agencies while carrying out search and seizure operations on the premises of an Advocate, who is a suspect, subject or target, an Advocate related by blood or married to a suspect or the one who is believed to be in possession of contraband or proceeds of a crime as also related to searches of business organizations where they involve material in possession of individuals serving in the capacity of a legal advisor to the organization.

(3.) The argument put forth by the Petitioner is that the Indian Evidence Act, 1872, provides protection to professional and confidential communications with the legal advisors under Ss. 126 to 129, whereby any person who seeks the services of an advocate, registered under the Advocates Act, 1961 enjoys the attorney-client privilege. In Kalikumar Pal vs. Rajkumar Pal, AIR 1952 Cal 148, the Court ruled that communications between an attorney and a client are privileged even if they contain information pertaining to third parties. It is further submitted that there may arise occasions when Law Enforcement Agencies may require issuance of search warrants for premises of an advocate, who is the subject of an investigation and / or engaged as an attorney for a client who is the subject of investigation. While carrying out such searches, certain safeguards ought to be followed and prior to filing an application for a search warrant in any Court, the Investigating Officer must mandatorily obtain sanction from the Directorate of Prosecution. The search warrant should be drawn in accordance with the requirements of law, minimising the need to search and the Magistrate must direct a search in his own presence in terms of Sec. 103 of Code of Criminal Procedure, 1973 (Cr.P.C.). Petitioner also submits that while passing an order under Sec. 93 Cr.P.C for issuance of search warrants, the provisions of privileged communications enshrined in Ss. 126 to 129 of the Indian Evidence Act be kept in mind.