Undertrials do not lose fundamental rights in custody: Delhi court

The order was passed by special judge Dig Vijay of Rouse Avenue Court as it allowed former Aam Aadmi Party MLA Naresh Balyan to have five minutes of e-mulakat and phone call with his family once every week.

An undertrial does not lose his fundamental rights while in custody, a Delhi court said on Tuesday as it allowed former Aam Aadmi Party (AAP) MLA Naresh Balyan to have five minutes of e-mulakat and phone call with his family once every week.

AAP MLA Naresh Balyan (FILE)

The order was passed by special judge Dig Vijay of Rouse Avenue Court, in an application moved by Balyan’s counsel, advocate MS Khan, wherein it was claimed that e-mulakats and telephonic conversations were being denied to him.

Stating that he was a diagnosed psychiatric patient whose mental health depends on regular family interaction, Balyan sought the resumption of the communication facilities.

According to the Delhi Prison Rules, for undertrials accused in heinous offences or under special acts such as MCOCA (Maharashtra Control of Organised Crimes Act) and Unlawful Activities (Prevention) Act (UAPA, a no-objection certificate is sought by the jail authorities from the investigating agency for allowing the facility.

In normal circumstances, e-mulakats and call facilities are generally allowed thrice a week, subject to the discretion of the authorities.

The application was opposed by the Delhi Police, which stated that allowing the plea would pose serious security risks as Balyan was booked under a special act and there was a possibility of him leaking information to his associates and tamper with the witnesses.

Rejecting the police’s contention, the court ruled that a prisoner cannot be completely denied the right to use inmate phone calls and e-mulakat facilities.

“Merely because a person is in custody during the trial of a case, the person does not lose his fundamental rights,” the court stated, while relying on several Delhi High Court judgments, wherein undertrials accused in serious offences were granted the facilities, subject to conditions.

Noting that a mentally sound and healthy inmate should be permitted to speak to family members at least once a week, which would help maintain the mental health of the undertrial, the court imposed a slew of conditions while allowing Balyan to speak to his family members through e-mulakat and telephonic conversation, for five minutes each, once a week.

The court said that Balyan must provide the number of the immediate family member of an immediate family member which shall be verified by the jail authorities. Further, Balyan must speak in a local language understood by a jail official who shall be present with him during the call. The judge said that the conversation would be recorded till a year and no code words shall be used during the communication.

Balyan has been named as an accused in a MCOCA case along with three others where he is accused of having alleged links with UK-based gangster Kapil Sangwan.

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In a supplementary chargesheet filed by the Delhi Police Crime Branch, police has stated that Balyan allegedly coerced landowners into selling properties below market value on the instructions of Sangwan.

Balyan was earlier granted bail in a separate extortion cade on December 4, but was later arrested under MCOCA following registration of the current case in August 2023 by the Crime Branch’s anti-gang squad.

The first FIR in this matter was lodged on May 31 last year after a complainant reported receiving a ₹1 crore extortion demand from a caller identifying himself as Kapil Sangwan.

An audio clip of a purported conversation between Balyan and Sangwan, allegedly discussing extortion of local traders, forms part of the police’s evidence.

Sangwan is a gangster from Najafgarh in Delhi with over 20 criminal cases against him, including the murders of Haryana politician Nafe Singh and BJP leader Surendra Matiala. Sangwan has been operating from the United Kingdom for the past five years, as per the Delhi Police.

The Crime Branch took Balyan into custody in December 2024 in the extortion case.