The Delhi Court recently comprising a bench of Justice Vibhu Bakhru observed that useless Formality theory is an exception and must not be readily resorted in all cases. (Shifa Ur Rehman v. NCT of Delhi)
Facts of the case
The Petitioner is the President of the Alumni Association of the Jamia Milia Islamia. He was arrested in connection with FIR under Sections 147/148/149/120-B of the Indian Penal Code, 1860 registered with the Crime Branch after which offenses under Sections 13/16/17 & 18 of the UAPA were also added. Additional Sessions Judge had allowed the respondent‘s application under Section 43D UAPA and extended the period of investigation and detention.
Contention of the Parties
It was submitted before the High Court on behalf of Rehman that to oppose the request of the State for an extended time to carry out the investigation, in violation of the principles of natural justice. It was because he was deprived of his right to consult the lawyer. It was also alleged that a fair opportunity to be heard was not granted to him.
Furthermore, it was submitted that there are no specific reasons as set out in section 43-D, UAPA, for prolonging the investigation period as stated in the order contested.
The above arguments were, opposed by ASG Raju because Rehman had no right to be heard in objecting to the request to extend the investigation period and consequently to extend the custody period. Furthermore, the contested order could not have interfered with Rehman, even if it had been assumed that Rehman had the right to consultation with his advocate, had shown that there were no prejudices to him.
Courts Observation & Judgment
The bench going through the facts and contention of the parties observed, “It is also necessary to mention that the Supreme Court has, in several decisions, cautioned that the Useless Formality theory is an exception and must not be readily resorted in all cases. The same is applicable in exceptional cases where the court is convinced that on the admitted and undisputed facts, no other decision is possible. In such exceptional cases, the courts may refrain from setting aside the orders or remanding it for consideration afresh as that would be a futile exercise.”
The court referred to the case of Subedar v. State of Uttar Pradesh, wherein the Apex Court made the following observations, “It is well accepted that right of being represented through a counsel is part of due process clause and is referable to the right guaranteed under Article 21 of the Constitution of India. In case the Advocate representing the cause of the accused, for one reason or the other was not available, it was open to the Court to appoint an Amicus Curiae to assist the Court but the cause, in any case, ought not to be allowed to go unrepresented. In the circumstances, we have no other alternative but to set aside the judgment passed by the High Court and to restore Criminal Appeal No.2798 of 1988 to the file of the High Court to be disposed of afresh.”
The court also referred to the case of P.D. Agrawal v. State Bank of India and Ors., wherein it was held that, “…The Court has shifted from its earlier concept that even a small violation shall result in the order being rendered a nullity. To the principle/doctrine of audi alteram partem, a clear distinction has been laid down between the cases where there was no hearing at all and the cases where there was mere technical infringement of the principle. The Court applies the principles of natural justice having regard to the fact situation obtaining in each case. It is not applied in a vacuum without reference to the relevant facts and circumstances of the case. It is no unruly horse. It cannot be put in a straitjacket formula.”
Furthermore, the Court observed: "The principle that a person against whom an adverse order may be passed is required to be provided full material based on which such order may be premised, is required to be curtailed to the aforesaid extent but no further. The petitioner has to be afforded an opportunity – however, truncated it is – to present his reasons why the further time for investigation may not be granted. The contention that the petitioner has no right to oppose the extension of time for completion of the investigation is not persuasive. The conclusion of the learned court to the aforesaid effect is erroneous and therefore set aside."
Considering the facts of the case and keeping in mind the provisions of law applicable. The Court held that it is not feasible to now put back the parties in the same position to be heard afresh. The charge sheet has been filed and the petitioner has been informed of the case against him. Since it is the petitioner‘s case that he had not been granted full opportunity of a hearing as he did not have the benefit of consulting his Advocate, the only relief that could be granted is to ensure that he has such access. Thus disposing of the petition.
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