How can probe, prosecution become one, Delhi govt argues in HC

New Delhi, July 3 While the Centre and Delhi governments' tussle over who will represent the city police in matters concerning the February riots revived before the Delhi High Court on Thursday, counsel for the state government raised concern about the investigation and prosecution joining hands.

"Delhi Police is not an ordinary client, it has no right to choose its own lawyers because if that is so, the investigation and prosecution will become hand in glove and if the same happens, then only god will save the criminal jurisprudence of this country," said Delhi government's senior standing counsel (Criminal) Rahul Mehra.

The remarks came in while he was opposing the stand of the Centre, represented by Additional Solicitor General Aman Lekhi, who had stated that the Delhi Police has the right to choose its own lawyers.

Lekhi had argued that the Delhi Police had a "constitutionally sanctioned" right to choose who would represent it.

However, Mehra opposed this, submitting that the role of a public prosecutor is not to be the mouthpiece of the investigation. "These are checks and balances placed in the Constitution and the Code of Criminal Procedure (CrPC)," said Mehra adding that the Centre can't ignore these just by saying that it "has an interest in these matters".

"Can they put it on an affidavit about what interest they have in these matters," Mehra added. He further questioned the Centre that under which law did it file the said petition.

"Can the Delhi Police initiate a document and say 'I want xyz', tomorrow, a sitting DCP can have his real brother as a prosecutor, will my lords allow that? What is this being argued here... absolute to the extent of unconstitutional arguments being made here?" Mehra submitted.

During the course of the hearing, Lekhi had submitted a letter dated July 1 from the Office of Deputy Secretary, Home Department to the DCP (Legal), Delhi Police mentioning that the names of Solicitor General Tushar Mehta, Lekhi, Standing Counsel Amit Mahajan and Advocate Rajat Nair had been cleared to file petitions and to appear in cases relating to the Delhi riots.

However, the same was opposed by Mehra stating that this is purely illegal and void as the said decision was taken without the aid and advice of the council of ministers of the Delhi Government.

Lekhi countered the same by saying that the said judgments would not be applicable to the present case as they specifically dealt with the power of the state government to appoint a public prosecutor under Section 24 of the Code of Criminal Procedure.

"The present case relates to the appointment of law officers in a bail cancellation matter, which is not under Section 24," Lekhi stated.

At this, Mehra retorted: "Everything has been looked into by the division bench judgment and Constitution Bench judgment though it has not been seen like Mr Lekhi wants to. Power cannot be might, might cannot be the right. This way the CrPC will be blown away to the winds, every state government, every case, you can invoke some particular section and get your own right.

"In Bengal, you can do it, in Maharashtra you can do it... we are in a federal country, you can't enter this territory and you don't have the right to do so and Constitution bench has rightly stated so," he added.

The arguments took place while the court was hearing the petition filed by the Delhi Police seeking cancellation of bail granted to the owner of Rajdhani School owner Faisal Farooq in a case relating to the Delhi riots.

The charge sheet states that Farooq had hatched a conspiracy to precipitate and aggravate riots, in and around Rajdhani School. On his instructions, the adjacent and rival DRP Convent School, two parking lots run by the other party and the building of Anil Sweets was systematically destroyed by a mob.

( With inputs from IANS )