TMI Blog2012 (3) TMI 695X X X X Extracts X X X X X X X X Extracts X X X X ..... e accompanied at all times by two lawyers as and when the petitioner is issued notice under Section 160 Cr.P.C. for recording his statement; f. Issue a writ, order or direction or pass necessary order for conducting judicial enquiry into the atrocities and third degree methods resorted to by the respondent No.2 NIA against the Petitioner as also the illegal detention and wrongful confinement by the NIA officers on 4/1/2011; and appropriate legal action be initiated against officers responsible for the same; h. Issue appropriate order/directions to the UOI and other respondents to jointly and severely compensate the Petitioner for the illegal detention, wrongful confinement and for the uncalled for unconstitutional atrocities committed upon the petitioner by the officers of the respondent No.2 NIA; 2. Learned counsel for the Petitioner contends that calling the Petitioner to join the investigation without serving a notice under Section 160 Cr.P.C. amounts to illegal restrain. Further, when the Petitioner came to join the investigation on 4th January, 2011 he was handed over a notice to join the investigation on the 5th January, 2011. The Petitioner was threatened and coerc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction of the Police Station where he resides. There is no dispute that in view of Section 3 of the NIA Act, a Police officer under the NIA discharges functions throughout India, however, wherever he exercises the jurisdiction he can only exercise jurisdiction in his Police Station or the adjoining Police station in view of Section 3(2) of the NIA Act. Reference is made to 2(1)(b) and (i) of the NIA Act to contend that the meaning of the expression would be as per the Criminal Procedure Code. The Petitioner is stationed at Uttarakhand and in case the Respondents want to interrogate him, they can come to Uttarakhand. No doubt the Petitioner is a monk moving here and there, however he has his ordinary place of residence which he has revealed in the petition. 5. As regards prayers f and h , learned counsel for the Petitioner contends that the Respondents in their affidavit have admitted that Inspector Prabhat Bajpayee called the Petitioner on telephone and thus admittedly no notice under Section 160 Cr.P.C. was given when he was made to join the investigation on 4th January, 2011. Even if the Petitioner attended the proceedings, the same were without issuance of notice under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oining Police Station. When the present petition was filed, the Petitioner had already complied with the first summon. He did not take any steps to challenge the same and thus now the Petitioner cannot challenge the said summon which has already been complied with. Further, the documents on record itself show that though initially a notice was served at Mumbai to the Petitioner to join the investigation at Panchkula on 5th January, 2011, however since the Petitioner was on his way at Delhi, as per his convenience, he was made to join the investigation at the NIA Headquarter, Delhi on 4th January, 2011. The Petitioner was accompanied by a lawyer. The Petitioner was at Delhi and thus asked to come at Delhi. The questioning took place in two sessions and the Petitioner was permitted to go for lunch. Thus, the contention regarding the illegal restrain and thus illegal custody is wholly unfounded. The second summon for appearance on 5th January, 2011 was issued to the Petitioner on 4th January, 2011 when he came to join the investigation at NIA Headquarter and was admittedly in Delhi. The Petitioner in the petition at different places has stated that he is residing at Surat, Uttarakhand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rced to make statement. Hence the writ petition be dismissed being devoid of merit. 10. Heard learned counsels for the parties. The issues that arise for consideration in the present petition are: (i) Whether the Respondents on the facts and in law were competent to examine the Petitioner at Delhi by serving a notice under Section 160 Cr.P.C. on him? (ii) Whether the Petitioner has a right of being accompanied by an advocate at the time of recording of statement? (iii) Whether the act of the Respondents calling the Petitioner without serving the notice under Section 160 Cr.P.C. and thereafter harassing/coercing him to make a statement amounted to illegal detention, thus calling for a judicial enquiry and compensation? 11. While dealing with the issue No. (i), it is relevant to note Section 160 Cr.P.C. and Section 3 of the NIA Act which provide: 160. Police Officer s power to require attendance of witnesses. (1) Any police officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who from, the information given or otherwise, appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Thus, an officer of the NIA has jurisdiction to investigate and arrest any person relating to scheduled offences anywhere in India coupled with all the powers, duties, privileges and liabilities of a Police Officer. Sub-Section (3) of Section 3, NIA Act does not restrict the power of the Police Officer to investigate beyond the jurisdictional area where he is present and he can exercise any of the powers of a Police Officer of the Police Station in the area in which he is present for the time being and he would be deemed to be an officer in-charge of the Police Station discharging the functions of such an officer within the limits of the Station. Sub-Section 3 supplements Sub-Section (2) by permitting any place where officer of the NIA is investigating to be treated as a Police Station and the investigating Officer the officer in-charge of the said Police Station. Sub-Section (3) does not override or restrict the powers of an officer of the agency to investigate in relation to the scheduled offences and exercises all powers, duties, privileges and liabilities of a Police officer throughout India in relation to the investigation of the said offence. Further, NIA Act is a special e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dress available in the subscriber detail report of his mobile number 9021738177, however, no notice could be served on the Petitioner at Lucknow as he was not found there. Since Petitioner was traced at Mumbai, a notice under Section 160 Cr.P.C. was sent by ASP, NIA on 30th December, 2010 for being served upon the Petitioner at Mumbai through ACP, ATS, Mumbai. On 3rd January, 2010, the Petitioner was contacted over his cell phone to ascertain his location when he informed that he was at Delhi. Since the entire NIA team which was camping at Panchkula (Haryana) was going to Gujarat for investigation, the Petitioner was requested if he could come to the Headquarters of Respondent No.2, located at New Delhi. The Petitioner accepted the request again without any protest and it was with his concurrence that the questioning was advanced to 4th January, 2011 at the Headquarter of Respondent No.2 at New Delhi. This arrangement was made keeping the interest of the Petitioner in mind. It was convenient for the Petitioner as it saved him from travelling all the way to Panchkula (Haryana), which was about 250 Km from Delhi. The Respondent No.2 did not threaten the Petitioner at any point during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. 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 spirit and sense of Article 22(1) is that it is fundamental to the rule of law that the services of a lawyer shall be available for consultation to any accused person under circumstances of near custodial interrogation. Moreover, the observance of the right against self-incrimination is best promoted by conceding to the accused the right to consult a-legal practitioner of his choice. 63. 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. The Miranda decision has insisted that if an accused person asks for lawyer's assistance, at the stage of interrogation, it shall be granted before commencing or continuing with the questioning. We think that Article 20(3) and Article 22(1) may, in a way, be telescoped by making it prudent for the pol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sely observing in paragraph of 4 of the judgment as follows: 4. Both Mr. Salve and Mr. Lalit strongly relied on the observations in Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424. We are afraid, in view of two judgments of the Constitution Bench of this Court in Ramesh Chandra Mehta v. State of W.B., (1969) 2 SCR 461, and Illias v. Collector of Customs, Madras, (1969) 2 SCR 613, the stand of the appellant cannot be accepted. The learned counsel urged that since Nandini Satpathy case was decided later, the observations therein must be given effect to by this Court now. There is no force in this argument. 21. Further, in paragraph 6 of the judgment, the Court referred to the Constitution Bench decision in Ramesh Chandra Mehta and observed as follows: 6. Clause (3) of Article 20 declares that no person accused of any offence shall be compelled to be a witness against himself. It does not refer to the hypothetical person who may in the future be discovered to have been guilty of some offence. In Ramesh Chandra Mehta case, the appellant was searched at the Calcutta Airport and diamonds and jewelleries of substantial value were found on his person as also currency notes in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Satpathy case which is, as will be pointed out hereinafter, clearly distinguishable. 22. An argument in support of the right of the persons called for interrogation was advanced on the basis of Article 21 of the Constitution. The Court rejected that submission also observing in paragraph 9 of the judgment as follows: 9. Mr. Salve has, next, contended that the appellant is within his right to insist on the presence of his lawyer on the basis of Article 21 of the Constitution. He has urged that by way of ensuring protection to his life and liberty he is entitled to demand that he shall not be asked any question in the absence of his lawyer. The argument proceeds to suggest that although strictly the questioning by the Revenue authorities does not amount to custodial interrogation, it must be treated as near custodial interrogation, and if the same is continued for a long period it may amount to mental third degree. It was submitted by both Mr. Salve and Mr. Lalit that the present issue should be resolved only by applying the 'just, fair and reasonable test', and Mr. Lalit further added that the point has to be decided in the light of the facts and circumstances obtain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two persons accused in the case. One of the accused persons testified at the trial and his counsel in argument to the jury made adverse comments on the failure of the other accused to go to the witness box. The first accused was acquitted and the second accused was convicted. The question of the right of silence of the accused came up for consideration in this set up. In the cases before us the persons concerned are not accused and we do not find any justification for expanding the right reserved by the Constitution of India in favour of accused persons to be enjoyed by others. 24. In the end, the Court allowed the appeal filed by the Revenue authorities in the case in which the High Court had directed for interrogation to take place in presence of the advocate and dismissed all the other appeals in the batch on behalf of the individuals in whose cases the High Court had declined to give any such direction. 25. It is seen above that the respondent applied for and got anticipatory bail on the premise that he was not an accused in the case. There was no change in his position or status since the grant of bail till he was summoned to appear before the DRI officers. On the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011 at 10.00 AM at NIA camp office, Haryana Police complex, Moginand, Panchkula, Haryana. In pursuance to the aforesaid notice under Section 160 Cr.P.C. the Petitioner left Mumbai on 2nd January, 2011 and reached Delhi on 3rd January, 2011 when the Petitioner received a call from one Shri Malviya claiming himself as Inspector NIA who according to the Petitioner in a threatening tone directed the Petitioner to meet him at the Delhi office of NIA on 4th January, 2011 at 10.00 AM failing which the Petitioner was threatened to be implicated in false cases. According to the Petitioner he reached office of NIA at 9.45 AM on 4th January, 2011 along with his advocate Shri Neeraj, however the officers of the NIA did not let the advocate accompany the Petitioner and was taken to the room alone. Inside the room the Petitioner was tortured mentally and physically and pressurized. The interrogation went on for many hours without break. Thereafter, the Petitioner was let off with a direction to be present on the next date i.e. 5th January, 2011 at 11.00 AM and a formal notice under Section 160 Cr.P.C. was handed over to him. According to the Petitioner he got scared and consumed some poison at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was written NIA aur bharat sarkar ke karan ishwar ke samukh aatam samarparan kar raha hui, mujhe nayay chahiye On 6th the statement of the Petitioner was recorded wherein he alleged harassment and physical and mental torture. It may be noted that there is no record to show that the Petitioner had injuries when he was taken to AIIMS. Further, the CFSL report with regard to gastric lavage of the Petitioner has been received which has been filed by the Station House Officer, PS Hazrat Nizamuddin. As per the report on chemical, TLC, GC-HS GC-MS examination, metallic poisons, ethyl and methyl alcohol, cyanide, phosphide, alkaloids, barbiturates, tranquilizers and pesticides could not be detected in exhibits 1 , 2 , 3 4 . Thus it is apparent that though poison was allegedly consumed at around 6.00 AM on 5th January, 2011 the intimation was sent in the afternoon and no poison was detected. In view of the facts surfacing on record, I do not find any merit in the contention of the learned counsel for the Petitioner that the Petitioner was tortured to such an extent that the Petitioner attempted to commit suicide. 20. In the facts of the case and in view of the aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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