'Prima Facie Compromises Concept Of Fair Trial': Delhi High Court On LG Notification Allowing Cops To Depose From Police Stations

“Prima facie compromises the concept of fair trial,” the Delhi High Court on Wednesday said on the notification issued by the Lieutenant Governor on August 13 designating all police stations in the national capital as places for police personnel to present evidence and depose before courts through video conferencing.

A division bench comprising Chief Justice DK Upadhyaya and Justice Tushar Rao Gedela remarked that while it was not on the LG's power to designate a place, the issue was why specifically police stations were designated as places for deposition of the police officials.

“Right to fair trial emanates from Article 21. This provision may or may not be hit by Article 14. It is a matter of argument. What is fair trial? Whether this right of fair trial of an accused is not being compromised by permitting the prosecution witnesses making their depositions from their own places? We can understand there is some some difficulty in formal witnesses, IOs etc. You have the right to identify designated place, no difficulty in that. We are not challenging your powers to designate a place but why police stations? Thats the only question,” the Court told ASG Chetan Sharma.

The Court was dealing with a PIL filed by lawyer Raj Gaurav challenging the notification on the ground that it undermines fairness and neutrality of criminal trials by allowing examination and cross examination of witnesses “within executive controlled premises.”

The Bench today questioned Gaurav, who was appearing in person, as to whether the notification in question is being acted upon as on date.

To this, the lawyer replied that the notification is “partially acted upon”, and that time and again, various circulars are being issued by the Delhi Police on the issue. He said that one of his prayers would be satisfied if it comes on record that the notification will not come into force.

“Every time they come out with a circular. After PRO statement, another circular came. Again it is withdrawn. This creates a chaotic situation on the ground. The larger issue of the PIL is the proviso of BNSS which has created this notification. It is not about the notification. It is actually about Section 266 sub section 3 proviso 2,” the lawyer said.

To this, the CJ replied: “We are not sitting here to entertain views. You have to assert your rights already available. We are not sitting here to create any right. That proviso you have challenged, it may be right or wrong, its validity has to be tested on the touchstone of testing the legislations.”

“Any legislation or statute can be struck down in judicial review by High Court if you are able to show either of the two things- legislative incompetence and if that statute is violative of any of the provisions of the Constitution. We want to know, proviso is hit by which provision?,” he added.

To this, the counsel responded that the notification runs contrary to Article 14 of the Constitution of India which deals with right to equality.

He reasoned that while the deposition of policemen would be done in the police stations, but examination of other accused and witnesses will be done in court, a situation which is not equal.

“The policemen have an edge when they are being cross examined in the police station. They have an edge over other witnesses examined in the courts…It compromises upon the transparency of the trial. Some policeman deposing on a mobile phone with a screen on behind or if I ask some crucial question and he might not know the answer then he might switch off the VC,” Gaurav said.

At this stage, the Court questioned ASG Chetan Sharma and asked,

“The argument would be right to fair trial emanates from Article 21 and your power to assign designated places is not in question but why to designate place at the police station? State is the prosecutor, State is the investigating agency and thus, some neutrality at the time… because cross examination and deposition is part of trial. It is not the part of prosecution or investigating process. This is the problem which we could see prima facie.”

“You could designate a place which is neutral to your seat, which is away from your seat. Why is this provision that every deposition by the prosecuting witness has to be made in the presence of the accused? Just to ensure fairness. So that accused knows that whatever material is being relied upon, or it is being sought to be relied upon in support of the charge, he comes to know. He has an opportunity to rebut all that. You have to maintain neutrality. And conducting trial is also your responsibility. You have to create an environment where any accused gets an opportunity to face fair trial. This perhaps prima facie compromises the concept of fair trial. These are the concerns,” the CJ added.

On this, ASG responded that he will come back on the issue on the next date of hearing, adding that the concern of the Court is well taken.

The Court listed the matter on December 10, when a similar PIL is also listed.

Title: Raj Gaurav v. Union of India & Ors