1985 (7) TMI 384 - HC - Customs

Court allows investigating officer discretion on lawyer presence during interrogation, emphasizing confidentiality and preventing adverse criticism.

The court dismissed the petition, allowing the investigating officer discretion to decide on the presence of a lawyer during the petitioners' ... - Issues Involved:1. Right to legal representation during preliminary investigation.2. Confidentiality of the investigation process.3. Applicability of the Advocates Act, 1961.Issue-wise Detailed Analysis:1. Right to Legal Representation During Preliminary Investigation:The primary issue is whether the petitioners are entitled to have their advocate present during their interrogation by the Assistant Conservator of Forests. The petitioners argue that the presence of their lawyer is essential to prevent coercion and harassment. They rely on Article 22(1) of the Constitution, which states, 'No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.' They also invoke Article 20(3), which protects against self-incrimination.The petitioners cite the Supreme Court case of Nandini Satpathy v. Dani, where it was observed, 'The right to consult an advocate of his choice shall not be denied to any person who is arrested. This does not mean that persons who are not under arrest or custody can be denied that right.' The Court emphasized that the presence of a lawyer ensures the observance of the right against self-incrimination and prevents coercion.However, the judgment also notes that the Supreme Court did not mandate the presence of a lawyer during interrogation but suggested it as a prudent measure. The Court stated, 'We do not lay down that the Police must secure the services of a lawyer... if an accused person expresses the wish to have his lawyer by his side when his examination goes on, this facility shall not be denied.'2. Confidentiality of the Investigation Process:The respondent opposes the petitioners' request on the grounds that the investigation should remain confidential until a charge-sheet is filed. This is supported by the judgment in Muthuswami In re, which held, 'The entire scheme of the Act is that the investigation into an offence should necessarily be kept confidential and that copies to the accused could be furnished only after the charge-sheet is filed.'The Court recognizes the necessity of keeping the investigation confidential to prevent hampering its progress. Thus, revealing details of the investigation before filing the charge-sheet is considered detrimental to the process.3. Applicability of the Advocates Act, 1961:The petitioners' counsel argues that advocates have a customary right to represent clients during bail applications and other proceedings before police officers. However, Section 30 of the Advocates Act, 1961, specifies the rights of advocates to practice before courts, tribunals, and other authorities legally authorized to take evidence. The Court clarifies that an investigating officer is not a forum before which an advocate has a right of audience under the Advocates Act.The judgment refers to the Supreme Court's caution against the 'police station lawyer' system, which is seen as an abuse that breeds other vices. The Court concludes that while the investigating officer is not bound to grant the request for a lawyer's presence, allowing it could prevent adverse criticism of any confessions made during interrogation.Conclusion:The Court ultimately decides that the investigating officer is at liberty to decide whether to permit the presence of a lawyer during the petitioners' interrogation. The Court cannot issue a directive in this regard but suggests that the presence of a lawyer may avoid adverse criticism of any confessions obtained. The petition is dismissed with these observations.Judgment Delivered:The petition is dismissed, and the investigating officer is given the discretion to decide on the presence of a lawyer during interrogation, keeping in mind the potential benefits of avoiding adverse criticism of confessions.