1984 (2) TMI 229 - HC - FEMA

Court Upholds Right to Counsel & Restrictions on Statements

The court affirmed the petitioners' right to have counsel present during investigations, stating it ensures humane treatment. The petitioners cannot be ... Right to consult and presence of counsel under Article 22(1) - advocate's right to practise before a person legally authorised to take evidence - Rule against self-incrimination / right to silence under Article 20(3) - procedure established by law as 'just, fair and reasonable' under Article 21 - statutory duty to state the truth in summons under section 40 (Foreign Exchange Regulation Act) - power to summon to produce documents relevant to investigation - compulsion to make statement in own handwriting - right to copies of statements during investigation - limited relevance of passport production; Passport Act controlsRight to consult and presence of counsel under Article 22(1) - advocate's right to practise before a person legally authorised to take evidence - procedure established by law as 'just, fair and reasonable' under Article 21 - Entitlement of a person summoned under the Foreign Exchange Regulation Act to consult and have the presence of counsel and the right of an advocate to appear before the enquiring authority - HELD THAT: - The Court held that the constitutional expression in Article 22(1) ('right to consult') includes the right of a person who is arrested or who would be within the article's scope (including one who would have been arrested but is on anticipatory bail) to consult and have the presence of counsel during enquiry or investigation. The reasoning followed Nandini Satpathy to the extent of recognising the availability of counsel at near-custodial interrogation and rejected any implication that the Foreign Exchange Regulation Act ousts that right. Independently, by reference to the requirement that any procedure depriving personal liberty be 'just, fair and reasonable' (Maneka Gandhi), the Court held that absence of counsel in proceedings under the Act would render such divergent procedure susceptible to criticism as unjust, unfair and unreasonable. In addition, section 30 of the Advocates Act and the character of proceedings under section 40 led the Court to conclude that an advocate is entitled to practise before an authority 'legally authorised to take evidence', so that counsel may appear before proceedings under section 40, subject to the limitation that counsel must not obstruct or delay the investigation. [Paras 6, 7, 8, 9, 24]Petitioners are entitled to the presence of counsel in the course of investigation; an advocate has the right to appear before the authority empowered under section 40, subject to non-interference with the inquiry.Rule against self-incrimination / right to silence under Article 20(3) - statutory duty to state the truth in summons under section 40 (Foreign Exchange Regulation Act) - procedure established by law as 'just, fair and reasonable' under Article 21 - Whether a person summoned under section 40 is entitled to the constitutional protection against self-incrimination or to refuse to answer questions (right to silence) - HELD THAT: - The Court concluded that the narrow construction of 'person accused of any offence' in Article 20(3) (requiring a formal accusation) means that a person summoned under the Foreign Exchange Regulation Act, prior to formal accusation, does not obtain the Article 20(3) protection. Section 40(3)'s obligation to 'state the truth' was interpreted as a composite duty to answer (i.e., make a statement) and to be truthful; the Court treated section 40 as deliberately departing from ordinary criminal procedure and accepted the legislative scheme that subjects such persons to a duty to answer and to potential penal consequences for falsehood. The Court nevertheless read Article 21's 'just, fair and reasonable' requirement to imply an obligation on authorities to warn the person, before examination, that any statement made could be used against him. [Paras 21, 22, 23, 24, 30]Persons summoned under section 40 are bound to answer truly and are not entitled to the benefit of the Rule against self-incrimination; however, authorities have an implied duty to warn the person before examination that statements made may be used against him.Compulsion to make statement in own handwriting - Whether authorities can compel a summoned person to reduce his statement into his own handwriting - HELD THAT: - The Court found that section 40 does not empower authorities to compel a person to make a statement in his own handwriting. The statutory obligation is to 'state the truth' and to 'attend' and produce documents; there is no power to require a person to 'prepare' or compile a document in his own hand. A suspect may voluntarily give a written statement or choose to give an oral statement, but compulsion to write in one's own hand is beyond section 40's mandate. [Paras 26]Suspects cannot be compelled to write statements in their own handwriting.Power to summon to produce documents relevant to investigation - statutory duty to state the truth in summons under section 40 (Foreign Exchange Regulation Act) - Obligation to produce documents when summoned under section 40 and whether production is barred by the Rule against testimonial compulsion - HELD THAT: - Given the Court's construction that section 40 imposes a duty to 'state the truth' which includes an obligation to answer and to comply with summonses, a summoned person must produce documents that are relevant or useful to the investigation. The earlier discussion that Article 20(3) protection and sections of the Evidence Act do not apply at this investigatory stage means testimonial-compulsion objections do not prevent production under section 40 where relevance to the inquiry is established. [Paras 27]Persons summoned are bound to produce documents required under section 40 if the documents are relevant to the investigation.Right to copies of statements during investigation - Whether a suspect is entitled to obtain copies of statements made to the investigating authority at the stage of investigation under section 40 - HELD THAT: - The Court held there is no statutory or common-law right to obtain copies of statements during the investigation stage. Statements made to the authority form part of official records; the right to obtain copies ordinarily flows from rights at adjudication or trial and from the right to a fair trial once formal proceedings begin. The suspect, however, may take his own notes or have counsel present to note statements and may refer to earlier statements when giving supplementary ones. [Paras 28]No right to copies of statements at the investigation stage; suspect may make or have notes of his statements and refer to earlier statements when required.Limited relevance of passport production; Passport Act controls - power to summon to produce documents relevant to investigation - Whether a summoned person (Grover) can be compelled under section 40 to produce his passport - HELD THAT: - The Court noted that a passport remains property of the Central Government and its seizure, impounding or related procedure is governed by the Passport Act; officers under the Foreign Exchange Regulation Act have no independent power under that Act to impound passports. However, if entries in the passport or the passport itself are relevant and useful to the investigation under the Act, the investigating officers may require its production. Mere anxiety to prevent departure from the country does not justify requisition of the passport under section 40; appropriate orders under the Passport Act or by the bail-granting Court are the proper means. [Paras 29]Passport cannot be compulsorily produced under section 40 except where it is relevant to the investigation; its seizure/impounding is governed by the Passport Act or by court order.Final Conclusion: The petitions were partly allowed: petitioners are entitled to the presence of counsel during investigation; they cannot be compelled to write statements in their own handwriting; they are bound to answer truly and to produce documents relevant to the investigation and are not entitled to the Rule against self-incrimination or to copies of statements at the investigation stage; the authorities must, however, warn suspects that statements may be used against them; passport production under section 40 is limited to cases where the passport is relevant to the investigation, otherwise regulated by the Passport Act or court order. Issues Involved:1. Presence of Counsel2. Right to Silence and Rule Against Self-Incrimination3. Compulsion to Make a Written Statement4. Production of Documents5. Right to Copies of Statements6. Production of PassportAnalysis:1. Presence of CounselThe petitioners argued for the presence of counsel during any enquiry or investigation under the Foreign Exchange Regulation Act, citing the Supreme Court decision in Nandini Satpathy v. P.L. Dani AIR 1978 S.C. 1025. The court recognized three facets of this issue: the suspect's right to counsel, the procedural fairness of having counsel present, and the legal practitioner's right to appear. Article 22 of the Constitution guarantees the right to consult and be defended by a legal practitioner, which includes the presence of counsel during interrogation. The court affirmed this right, stating that the presence of counsel ensures that the suspect is treated humanely and in accordance with the law. The court concluded that the petitioners are entitled to the presence of counsel during the investigation.2. Right to Silence and Rule Against Self-IncriminationThe petitioners claimed the right to silence and protection against self-incrimination. The court noted that Article 20(3) of the Constitution and Section 161(2) of the Code of Criminal Procedure provide protection against self-incrimination, but these protections are not available until a formal accusation is made. The Foreign Exchange Regulation Act does not provide these safeguards, and the court held that the petitioners are not entitled to the rule against self-incrimination. However, the authorities have an implied duty to warn the petitioners that any statement made could be used against them.3. Compulsion to Make a Written StatementThe petitioners argued they could not be compelled to write a statement in their own handwriting. The court agreed, stating that Section 40 of the Foreign Exchange Regulation Act does not require a person to make a written statement. The authorities cannot compel the petitioners to write statements in their own hand; however, the petitioners are free to do so voluntarily.4. Production of DocumentsThe petitioners contended that they could not be required to produce documents that might be used against them in a trial. The court dismissed this contention, stating that if the protection against self-incrimination is not available, the petitioners are bound to produce documents relevant to the investigation. The duty to produce documents is not affected by the likelihood of their use in a trial.5. Right to Copies of StatementsThe petitioners sought copies of any statements made by them. The court denied this request, stating that there is no basis for such a right during the investigation. The right to obtain copies of statements arises only at the stage of departmental adjudication or trial. However, the petitioners are entitled to take notes of their statements or have their counsel do so.6. Production of PassportIn the case of Rajinder Singh Grover, the petitioner argued against producing his passport. The court held that the authorities under the Foreign Exchange Regulation Act could only require the production of the passport if it is relevant to the investigation. The authorities cannot demand the passport merely to prevent the suspect from leaving the country. The appropriate authorities under the Passport Act or the court that granted bail have the power to make orders regarding the passport.Conclusion:The court upheld the petitioners' right to the presence of counsel during the investigation and ruled that they cannot be compelled to write statements in their own handwriting. Grover cannot be compelled to produce his passport unless it is relevant to the investigation. The petitioners are not entitled to copies of their statements at this stage but can take notes. The petitioners are bound to produce relevant documents and answer questions truthfully, without the benefit of the rule against self-incrimination. The authorities must warn the petitioners that any statement made could be used against them. The impugned orders of the learned Additional Sessions Judge were modified accordingly.