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Report No. 152

5.12. Presence of counsel.-

The topic of presence of counsel at the time of interrogation of an accused by the police has received attention to many countries, particularly from the constitutional angle. The point was touched in the well-known case of Nandini Satpathy1 where an emphasis was laid on the presence of counsel in the light of Article 20(3) of the Constitution (testimonial compulsion) and Article 22(1) of the Constitution (right to consult and to be defended by a lawyer of one's choice). The relevant observations are as under:-

"Lawyer's presence is a constitutional claim in some circumstances in our country also, and, in the context of Article 20(3), is an assurance of awareness and observance of the right to silence we think that Article 20(3) and Article 22(1) may, in a way, be telescoped by making it prudent for the police to permit the advocate of the accused, if there be one, to be present at the time he is examined We do not lay down that the police must secure the services of a lawyer's system, an abuse which breeds other vices.

But all that we mean is that 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, without being exposed to the serious reproof that involuntary self-crimination secured in secrecy and by coercing the will was the project."

It would appear that at least three articles of the Constitution Articles 20, 21 and 22 have relevance if one were to examine the constitutional aspect in great detail. Even if the non-constitutional aspect is taken into account, it would seem, that if serious effort is made to check the malpractices of torture and allied practices during interrogation, there should be a provision, at least entitling the arrested person to demand that the interrogation should be carried out in the presence of his counsel or a family friend of his choice.

Requirement of State appointed counsel being present at that stage need not be inserted, but what we have stated in the preceding sentence, needs to be incorporated into the law. We should mention that in response to our questionnaire (Issue No. 2) some replies have favoured the presence of counsel though a fairly large number have opposed it.

1. Nandini Satpathy v. State of Bihar, 1978 Cr LJ 968.

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