Can a lawyer be present during interrogation

Can a lawyer be present during interrogation?

In this article, we will discuss the law on the subject mentioned question i.e. Can a lawyer be present during interrogation?

First, let’s understand, what is interrogation? Interrogation is interviewing as commonly employed by law enforcement officers, military personnel, and intelligence agencies with the goal of eliciting useful information, particularly information related to suspected crime.

Now, when the police investigates the matter, the accused person may have the apprehension that police may torture or beat the accused or even use the third degree during interrogation. So what right you have?

Under the Criminal Procedure Code, 1973, the provision for the same is provided and the person has the right to be interrogated in the present of his/her advocate thought not throughout interrogation. Section 41D of the CrPC deals with the same, which is hereby reproduced.

41D. Right of arrested person to meet an advocate of his choice during interrogation.—When any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation.”

Now, let’s have a look at few cases/judgments dealing with the topic under discussion i.e. Can a lawyer be present during interrogation?

ANDHRA PRADESH HIGH COURT
Dr. G. Yethirajulu, J.
2007(3) R.C.R.(Criminal) 991

Constitution of India, Article 22 (1) – Narcotic Drugs and Psychotropic Substances Act, 1985, Sections 20 and 21 – Criminal Procedure Code , Section 156 – Interrogation by Police – Apprehending that Investigating Officers were likely to apply third degree methods, accused requested for the presence of Advocate – Advocate permitted to be present – However he was prevented from interfering with interrogation.

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BOMBAY HIGH COURT
T. V. Nalawade and Shrikant D. Kulkarni, JJ.
Decided: 2020

Criminal Procedure Code , 1973 Section 41D Right of arrested person to meet an advocate of his choice during interrogation – Held, Shirdi Police officials who were on duty at relevant point of time completely overlooked provisions of Section 41 (D) of Cr. P. C.

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SUPREME COURT OF INDIA
Aftab Alam and R.M. Lodha, JJ.
Decided: 2011

Narcotic Drugs and Psychotropic Substances Act, 1985 Section 67 Criminal Procedure Code , Section 161 – Constitution of India, Articles 21 , 22 and 32 – A person summoned for interrogation by Investigation Officer in connection with a criminal offence – He is not entitled, as of right of the presence of his lawyer at time of interrogation – However, in the present case accused had heart disease – In view of Special Case, direction issued that he may be interrogated within sight of his Advocate , who should not be within hearing distance

ON FACTS :-

Interrogation of Respondent by Investigating Officer in connection with a Criminal offence (NDPS Act in the instant case) – Respondent suffering from heart disease and apprehending that the Investigation Officers are likely to apply third degree methods like physical assault, etc. – Sessions Judge and High Court directed that interrogation be conducted in presence of his Advocate – Order of Sessions Judge and High Court set aside – Held :-

(i) The respondent is not entitled, as of right, to the presence of his lawyer at the time of his interrogation.

(ii) However, in view of Special Circumstances that the Respondent had heart disease direction issued that he may be interrogated within sight of his Advocate from a distance, but not within hearing distance and it will not be open to the respondent to have consultations with him in course of the interrogation. 1992(2) RCR (Criminal) 315 : 1997(1) RCR (Criminal) 372, relied.

Can a lawyer be present during interrogation?

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PATNA HIGH COURT
Sanjay Karol, C.J. and S. Kumar, J.
Decided: 2020

Indian Penal Code , 1860, Section 166 – Criminal Procedure Code , 1973 Sections 41 , 41A , 41B , 41D , 50 , 56 , 56A and 157 – Illegal detention of truck driver and truck on account of accident – Non-compliance of provisions of arrest – Neither full particulars of injured nor treatment given in Hospital where supposedly injured took treatment stands disclosed – No statement of person witnessing occurrence of accident – Police had no suspicion, as mandatorily required of initiating action under Section 41 Cr.P.C., 1973 of detenue having committed any non-cognizable offence – Neither any complaint nor any credible information warranting detention without order of any Magistrate – Further, the detenue was not produced before the Magistrate within 24 hours, as required under section 56 of the Cr. P.C., 1973 Also, information of arrest was not supplied to a friend, relative or close person or entry made in the book, as required under section 56A Cr. P.C., 1973 which is sacrosanct. The accused was not informed of the ground of arrest, as required under Section 50 Cr.P.C., 1973 thus depriving him of his right seeking bail. Police did not serve notice under section 41A Cr. P.C., 1973 either upon the owner of the vehicle or the person driving at the time of occurrence of the alleged accident – Valuable right of accused of seeking legal advice envisaged under section 41D Cr. P.C., 1973 stood infringed – Non-submission of any report to Magistrate, as provided under Section 157 Cr.P.C., 1973 only fortifies version of detenue – Thus, police officer responsible for detention, liable for prosecution under Section 166 IPC.

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BOMBAY HIGH COURT
D.N. Mehta, J.
Decided: 1986

Can a lawyer be present during interrogation? Constitution of India, Articles 20 (3) and 22 (1) – Foreign Exchange Regulation Act, 1973, Section 40 – Criminal Procedure Code , 1973, Sections 161 , 162 , 163 , 164 and 164 – Evidence Act, 1872, Sections 24 and 25 – Foreign Exchange – Person summoned – Held, presence of advocate can be permitted where accused or subject makes a written request – Advocates presence is permitted during interrogative subject to conditions prescribed above – Petition allowed.

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MADRAS HIGH COURT
Mr. K. Ravichandrabaabu, J.
Decided: 2019

Prevention of Money Laundering Act, 2002 Section 50 Indian Penal Code, 1860 Section 193 Money Laundering – Presence of lawyer with accussed during questioning – Scope of – Held, petitioner must be permitted to have his choice of lawyer to be present along with him at the time of interrogation /enquiry, however, by making it clear that such lawyer should sit within a visible distance but beyond hearing distance – Whether the statement already recorded form the petitioner’s have to be eschewed and consequently, whether the first respondent should be directed to re-record the statement from the petitioner in the presence of an Advocate – Said relief need not to be granted to the petitioner in view of his categorical averment made that he had issued a letter to the respondents on 06.12.2018 retracting his statement which was obtained afresh from out of coercion on 19.12.2018 – When about the veracity of the statement already obtained from the petitioner and the effect of such retraction, at the appropriate time, during the proceedings.

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