Judicial Protocol Prevails: Delhi High Court Directs Legal Counsel Disputes back to Sessions Court

In a significant order clarifying the procedural hierarchy for custodial litigation, the Delhi High Court has underscored that petitioners must exhaust all available legal remedies before seeking direct intervention from the High Court. The ruling, delivered by Hon'ble Dr. Justice Swarana Kanta Sharma, addresses the petitioner-accused's plea regarding access to legal counsel ( legal mulaqat ) while in the custody of the National Investigation Agency (NIA).

The Backdrop: A Dispute Over Access

The petitioner, Jasir Bilal Wani, had approached the High Court after his legal team alleged they were denied permission to meet him while he was detained in connection with an NIA-investigated case. The petitioner faced charges under the Bharatiya Nyaya Sanhita, 2023 , the Unlawful Activities (Prevention) Act, 1967 , and the Explosive Substances Act, 1908 .

Counsel for the petitioner argued that despite attempts to seek permission from the District & Sessions Judge at Patiala House Courts, no orders were passed on their application, effectively leaving the petitioner without access to his legal representation. The NIA, however, contended that the petitioner had bypassed the proper legal channels, asserting there was no record of the lower court refusing to entertain the application.

The Court’s Reasoning: Upholding Procedural Propriety

Justice Swarana Kanta Sharma rejected the petitioner's plea for direct intervention, emphasizing that judicial process cannot be circumvented based on apprehension or presumptions. The Court noted that simply alleging that a lower court refused to accept an application—without evidence of filing numbers or formal rejection—is insufficient grounds to approach the High Court.

"The law and procedure cannot be created to suit and satisfy a party’s apprehension or presumption. An application of this nature, therefore, in this Court’s opinion, ought to be decided by the learned Sessions Court at the first instance," the Court observed in its judgment.

Key Observations

• On Procedural Exhaustion: "In the absence of any such material, this Court cannot accept that the petitioner has exhausted all efficacious remedies available in law to him."
• On Judicial Premise: "In case such a plea is accepted, in every case, a person will approach the High Court with an apprehension or presumption that his application will be rejected by the Trial Court."
• On Evidence: "Merely alleging that an application was moved or the case was refused to be taken up by a Sessions Judge or it was orally said that the prayer will not be allowed, cannot be a valid ground in absence of proof of the same."

The Verdict: Redirecting the Path to Justice

Ultimately, the High Court directed the petitioner to return to the sessions court with his pairokar (attorney-in-fact/representative). The Court mandated that upon verification of the identity of the representative, the Sessions Judge must adjudicate the application for a legal mulaqat on its merits without further delay.

By directing the matter back to the trial court, the High Court has reinforced the sanctity of the hierarchy of courts, ensuring that trial judges—who are the first port of call for the accused—retain their authority to manage custodial proceedings and legal consultations in accordance with the Bharatiya Nagrika Suraksha Sanhita .