TMI Blog1985 (7) TMI 384X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the preliminary investigation by the Assistant Conservator of Forests prior to the filling of the charge-sheet. Learned counsel for the petitioners relied on Art. 22(1) of the Constitution, which is as follows - 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. 3. It is also the contention of the petitioner's learned counsel that the presence of a lawyer will ensure that no confession is extorted forcibly and also relied upon Art. 20(3) of the Constitution which states that no person accused of any offence shall be compelled to be a witness against himself. Relying upon these two constitutional provision, it is contended that the right of the petitioners herein to have their advocate by their side when they are questioned is one guarantee under the Constitution. In support of his contention, reliance is placed upon the case reported in Nandini Satpathy v. Dani, 1978CriLJ968 , where Krishna Iyer, J. after referring to the above stated two provisions of the Constitution, observed as follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... moon in many cases until a public defender system becomes ubiquitous. The police need not wait more than a reasonable while for an advocate's arrival. But they must invariably warn and record that fact about the right to silence against self-incrimination; and where the accused is literate take his written acknowledgment. Later, in the course of the judgment, the Supreme Court observed as follows :- Our purpose is not to sterilise the police but to clothe the accused with his proper right of silence. Art. 20(3) is not a paper tiger but a provision to police the police and to silence coerced crimination. The dissenting words of Mr. Justice White bear quotation in this context - 'The Court's duty to assess the consequences of its action is not satisfied by the utterance of the truth that a value of our system of criminal justice is 'to respect the inviolability of the human personality' and to require government to produce the evidence against the accused by its own independent labours. More than the human dignity of the accused are involved; the human personality of others in the society also be preserved. Thus the values reflected by the privilege ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd unexplored. A flesh flood of demands against self-incriminatory interrogation has risen now when very important persons of yesterday have got caught in the criminal investigation coils of today. And when the big fight forensic battles the small gain by the victory, if any. The fact that the scope of the protection against self-accusation has not been clarified before in this area makes it necessary for us to take a gentler view in this case, in the interest of justice. Moreover, on our interpretation, the Magistrate, trying the case under S. 179 I.P.C. and in a setting where the accused allegedly has a number of other offence to answer for, will be thrown into a larger enquiry than the simplistic and ordinarily needed. We have declared the law on the thorny constitutional question where the amber light from American rulings and beacon beams from Indian precedents have aided us in our decision. It is quite probable that the very act of directing a woman to come to the police station in violation of S. 160(1) Cr.P.C. may make for tension and negate voluntariness. It is likely that some of the questions are self criminatory. More importantly, the admitted circumstances are such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the passage in Nandini Satpathi's case, 1978CriLJ968 , which we have extracted above and said that owing to some misconception of the legal position the request for the presence-consultation of a lawyer was turned down, it did not hold that there was a constitutional guarantee even during interrogation under S. 108 of the Customs Act, to have the presence of a lawyer; but that the detention order is vitiated, by the fact that this vital fact of refusal to permit the presence of a lawyer during interrogation should have been communicated to the detaining authority because that had a bearing on the question whether the statement could be treated as voluntary or given under duress on the acceptance or rejection of the statements of the answers given during interrogation. We are therefore of the view that there is no fundamental right to a person who is summoned under S. 108 to give evidence or to have a lawyer of his choice during examination or interrogation. However, it is advisable for the department to permit the presence of the lawyers during such examination or interrogation taking such precautionary measures as may be considered necessary to keep the confidential nature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused could be furnished only after the charge-sheet is filed. 5. The second aspect to be borne in mind is the provision of the Advocates Act, 1961, which enables the Advocates the right of audience. Section 30 of the Act deals with the rights of Advocates to practise and the same is as follows :- Subject to the provisions of this Act, every Advocate whose name is entered in the State roll shall be entitled as of right to practise throughout the territories to which the Act extends - (i) in all Courts including the Supreme Court; (ii) before any tribunal or person legally authorised to take evidence; and (iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise. 6. As per the above section, an investigating officer, being a person not authorised to take evidence, is not a forum before which an advocate has got a right of audience. Learned counsel for the petitioners submits that it is customary on the part of advocates to present bail applications, etc., on behalf of the accused and the right of advocate to appear before the police officers had become recognised. Whatever ..... 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