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Report No. 152

2. Presence of Counsel at the time of interrogation.

Issue No. 2

Whether law should be amended to confer right on the suspect who is detained for interrogation to insist for the presence of his counsel at the time of interrogation. If the amendment is made, will it not delay and interfere with the investigation of crime?

Views of Academicians

Both the academicians have supported the issue raised by Law Commission and suggested amendment in the present laws. One of them has apprehension about its success, as he feels it is not feasible. He questions who is poor man's counsel? The other has suggested the presence of third party like family friends or legal counsel will contribute to accountability of police powers.

He has further suggested that senior police officers should be selected to make surprise visit of police station, to ensure that illegal arrests are not made and third degree method is not used. Both of them agreed that if a person is arrested in a village then 'Gram Pradhan' or 'Sarpanch' of the village should also be informed and the whereabouts of the arrested person should also be given to the family and friends of the arrested person.

They have also suggested that there should be prescribed a "Custody-Memo" wherein complete information regarding arrested person and property taken by the police should be entered and details of the police officers making arrest should also be filled. This view is now supported by the recent judgment of the Supreme Court in the case of Joginder Singh v. State of Uttar Pradesh, JT (1994) 3 SC 423.

Views of Hon'ble Judges

Two of the High Courts, namely, Jammu & Kashmir and Gangtok have responded in negative. According to them the proposed amendment will serve no purpose and would delay investigation. They suggested that interrogation should be made on scientific lines by using an electronics and psychologistic pattern. According to them the presence of friend and relative will be sufficient and there is no need of presence of counsel. The Andhra Pradesh High Court has also responded to the issue in negative. It is of the view that there is no need to change the existing procedure. According to it, the presence of counsel will delay investigation.

On the other hand, the ex-Chief Justice of India has said that the presence of an advocate would be appropriate; only in exceptional cases the permission should be taken from the Court for investigation in privacy. Thus out of four judicial opinions three are against the proposal to amend the existing law to allow the presence of a counsel during interrogation of the arrested person and Justice R.N. Mishra is in favour of amendment to provide the assistance of advocate during the investigation in exceptional cases.

Views of Advocates

Out of seven, four have categorically supported the proposal of Law Commission to provide the legal assistance during investigation by presence of the counsel. They feel that the presence of a counsel is desirable and would not delay or in any manner interfere with the investigation of crime. According to them it is also in the tune of Article 22(1) and is supported by the ruling of the apex court if the Nandini Satpati v. P.L. Dani, 1978 Cr LJ 968. They plead that appropriate amendment be made in sections 41, 50 and 56 of Cr. P.C.

Views of Police Officers

Out of twelve, only one officer from Manipur, Imphal has supported the proposal by suggesting amendment to provide a Counsel during investigation. The other from Itanagar has suggested that help of a lawyer can be provided at a later stage of investigation. The rest of the senior police officers from Delhi, Bombay and U.P. do not consider it necessary to amend law for the presence of counsel at the time of interrogation because presence of counsel at the time of interrogation would adversely affect the proceeding and will cause delay and will also be an interference with the investigation of crime.

A senior IPS officer from Sikkim feels that if this proposal is accepted investigation will be rendered impossible. It would interfere in investigation of cases and put terrible financial pressure up on the detenu. Another senior officer (former Commissioner of Delhi Police) is of the view that counsel should not be allowed except in the cases of murder, rape, dacoity, robbery, etc.

Views of State Governments

Out of nine responses of different State Governments, the Governments of Goa, Andhra Pradesh, Mizoram and Pondicherry have supported the proposal for view of amending sections 41, 50 and 56 of Cr. P.C. to entitle the accused to have his counsel present at the time of interrogation. The Government of Goa has also quoted the judgment of Nandini Satputhi v. P.N. Dani, 1978 Cr LJ 968.

The Government of Andhra Pradesh states that in most of the countries, a person arrested by the police is allowed immediate access to his attorney. Even Article 22 of our Constitution lays down specifically that the arrested person should not be denied the right to consult and defend himself by a legal counsel of his choice.

The Government of Andhra Pradesh is of the view that law on this point should be elaborated by specifically providing that before interrogation starts by the police, the arrested person should be allowed to consult his legal counsel. It also advocates that where arrested person cannot afford a legal counsel, the State should itself provide him the assistance of a legal counsel of his choice out of a panel of advocates appointed by the Human Rights Commission or the District Legal Aid Committee.

The remaining State Governments have disagreed with such proposal and they have suggested not to confer any such right, as it will delay in investigation of crime.

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