Madhya Pradesh High Court
Pragya Singh Kushwaha @ Pragya Bharti @ ... vs Union Of India on 17 May, 2012
Author: S.C.Sinho
Bench: S.C.Sinho
(1) Cr.A.No. 1025/2012
AFR
HIGH COURT OF MADHYA PRADESH AT JABALPUR
DIVISION BENCH:HON'BLE SHRI JUSTICE RAKESH SAKSENA
HON'BLE SHRI JUSTICE S.C.SINHO
CRIMINAL APPEAL NO. 1025/2012
APPELLANT : Pragya Singh Kushwaha @ Pragya Bharti @
Pappi Didi @ Swami Purna Chetnanand Giri D/o
Dr. Chandra Pal Singh Kushwaha R/o Lahar
Mandi Road, P.S. Lahar, District Bhind (M.P.).
Versus
RESPONDENT: Union of India, through the National
Investigation Agency, through Inspector of
Police National Investigation Agency/New
Delhi, Camp Bhopal.
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For the Appellant : Shri R.N.Singh, Senior Advocate with Shri Avinash Patel, Advocate.
For the Respondent/State : Shri R.L.Gupta, Assistant Solicitor General of India.
Date of hearing : 10/05/2012 Date of judgment: 17/05/2012 (J U D G M E N T ) Per: Rakesh Saksena; J, Appellant has filed this appeal under Section 21 of the National Investigation Agency Act, 2008 (for short `the Act') against the order dated 12.4.2012 passed by Special Judge, N.I.A, Bhopal in Special Case No. 1/2011, whereby application filed by Inspector of Police (N.I.A.) seeking permission to interrogate the appellant in jail premises was allowed and the request made by appellant to grant permission to be assisted by an Advocate during interrogation was rejected.
(2) Cr.A.No. 1025/2012
2. Brief history of the case is that on 19.12.2007 at about 8.45 P.M., Police Station Industrial Area, Dewas received an information about an injured person lying near the Chuna Khadan. This person was identified as Sunil Joshi @ Guruji. When injured was taken to M.G.Hospital, Dewas, he was declared dead. Police registered a merg 0/07 against unknown persons for the offence punishable under Section 302 of the Indian Penal Code as the death of deceased was found to have taken place on account of gun shot injury. The offence was then registered as Crime No. 661/2007.
3. After investigation, police submitted final report in the case for the offences punishable under Sections 302, 201 and 120-B/34 of the Indian Penal Code and Sections 25 & 27 of the Indian Arms Act in the Court of Judicial Magistrate First Class, Dewas on 27.2.2011 against following persons:
1. Raj Singh @ Raj @ Munna @ Harshad @ Dadi @ Prem S/o late Shri Ravji Bhai Solanki-Gujrat,
2. Basudev Parmar S/o Rameshchand Parmar-Dewas,
3. Anand Raj Katariya S/o Sanjay Kataria-Indore,
4. Ram Charan Patel S/o Kodar Singh Patel-Dewas,
5. Pragya Singh Kushwaha @ Pragya Bharti @ Pappi Didi @ Swami Purna Chetnanand Giri-Bhind.
4. As per initial F.I.R. 661/2007, registered by Police Station Industrial Area, Dewas Sunil was shot dead by some unknown accused persons, (3) Cr.A.No. 1025/2012 however, in the Course of investigation, it was found that he was murdered in a criminal conspiracy by some of his associates and master mind, who had committed the series of terrorist bomb blasts including Samjhauta Express Train blast on 18.2.2007, Hyderabad Mecca Masjid blast on 18.5.2007 and Ajmer Sharif on 11.10.2007 and as they feared that if Sunil Joshi was ever arrested he would disclose the identities of his co- conspirators, therefore, vide order dated 1.4.2011 Ministry of Home Affairs Govt. of India directed the National Investigation Agency to take over the investigation of the case. In compliance of the said order, NIA took over the case of Crime No. 661/2007 by registering fresh F.I.R. No. RC-08/2011/ NIA-DLI on 25th June, 2011 under Sections 302, 201, 120-B/34 of the Indian Penal Code and Sections 25 & 27 of the Arms Act and Sections 16 and 18 of Unlawful Activities (Prevention) Act as defined under Section 2(g) of the Act.
5. Under the provisions of the Act and the notification in Gazette of India dated 1.9.2010, the N.I.A. Special Court was empowered under the provisions of Section 13 of the Act to try the Scheduled offences along with other offences investigated by NIA, for whole of the State of M.P.
6. On 5.11.2011, the High Court of M.P. on administrative side transferred the trial of the aforesaid case to the NIA Special Court at Bhopal from the Court of Additional Sessions Judge, Dewas. On 22.11.2011, Special Court, Bhopal received the record from the Court of Additional Sessions Judge, Dewas.
(4) Cr.A.No. 1025/2012
7. On 14.3.2012, the case before the Special Court was fixed for hearing on the question of framing charges. On the same day, NIA filed an application seeking permission to further investigate the matter. Though, it was objected by the accused that none of the offences came under the definition of Scheduled Offences, therefore, NIA had no authority or jurisdiction to further investigate the crime, yet learned Special Judge allowed the request of NIA and fixed further date for submission of the further investigation report, if any, on or before 23.4.2012.
8. On 12.4.2012, Inspector of Police NIA/New Delhi filed an application before the Special Court seeking permission to interrogate accused Pragya Singh and Harshat Solanki since investigation being carried out in the matter had reached to a crucial stage and it had become incumbent and just for the investigation agency to interrogate the aforesaid accused. It was stated that NIA had not been able to interrogate them after registration of the case afresh on 25.6.2011 for want of permission of the Court empowering the agency to interrogate the accused lodged in judicial custody. From the impugned order, it seems that no written reply of the aforesaid application was filed by the counsel of accused Pragya Singh. However, her counsel insisted for grant of permission to him to remain present in the jail, at the time of interrogation by the NIA Inspector. Learned Special Judge refused the permission for interrogation in presence of Advocate of accused and granted permission to Inspector NIA and his team to interrogate accused Pragya Singh in Bhopal jail on 19.4.2012 and (5) Cr.A.No. 1025/2012 20.4.2012, where she was confined. Challenging the said order, accused Pragya Singh has filed this appeal under Section 21 of the Act.
9. Shri R.L.Gupta, learned Assistant Solicitor General of India, for the respondent contended that against the impugned order, no appeal under Section 21 of the Act was maintainable since the impugned order was purely an interlocutory order. On the other hand, Shri R.N.Singh, learned Senior counsel for the accused/appellant contended that the appeal was maintainable as the grant of permission to interrogate the accused when once the charge sheet had been filed amounted to fresh investigation which could not be permitted and further that refusal to keep Advocate present at the time of interrogation from the accused was against the fundamental right of liberty of an accused. Before proceeding to answer the above questions, it is necessary to look at the provisions of Section 21 of the Act. For ready reference, Section 21 of the Act is reproduced as under:
"21. Appeals:- (1) Notwithstanding anything contained in the Code, an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court both on facts and on law.
(2) Every appeal under sub-section (1) shall be heard by a Bench of two Judges of the High Court and shall, as far as possible, be disposed of within a period of three months from the date of admission of the appeal.
(3) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, sentence or order including an interlocutory of a Special Court.(6) Cr.A.No. 1025/2012
(4) Notwithstanding anything contained in sub-section (3) of section 378 of the Code, an appeal shall lie to the High Court against an order of the Special Court granting or refusing bail.
(5) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment, sentence or order appealed from:
Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days:
Provided further that no appeal shall be entertained after the expiry of period of ninety days."
10. It is thus apparent that an appeal against any judgment, sentence or order passed by the Special Court shall lie to High Court only if the said judgment, sentence or order is not an interlocutory order i.e. no appeal against an interlocutory passed by the Special Court shall lie to High Court. Now, the question is whether the impugned order passed by the Special Court is an interlocutory order.
11. Interpreting the term `interlocutory order' in reference to provisions of Section 397 (2) of the Code of Criminal Procedure, the Apex Court in the Case of Amarnath Vs. State of Haryana-AIR 1977 SC 2185 held that "it merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar (7) Cr.A.No. 1025/2012 a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory order against which no revision would lie under Section 397(2) of the Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory orders so as to be outside the purview of the revisional jurisdiction of the High Court."
12. In case of Madhu Limaye Vs. State of Maharashtra-AIR 1978 SC 47 the Apex Court observed that "ordinarily and generally the expression `Interlocutory Order' has been understood and taken to mean as a converse of the term `final order'. But an interpretation and the universal application of the principle that what is not a final order must be an interlocutory order is neither warranted nor justified. If it were so it will render almost nugatory the revisional power of the Sessions Court or the High Court conferred on it by section 397(1). On such a strict interpretation, only those orders would be revisable which are orders passed on the final determination of the action but are not appealable under Chapter XXIX of the Code. This does not seem to be the intention of the Legislature when it retained the revisional power of the High Court in (8) Cr.A.No. 1025/2012 terms identical to the one in 1898 Code."
13. No doubt the revisional power of the High Court or the Sessions Judge could be attracted if the order is not purely interlocutory, but intermediate or quasi final. The same, however could not be said in respect of the Special Court constituted under the Act which has been meant to cover only specified crimes and criminals and the objective attained is the quickest dispatch and speediest to disposal. There is a marked difference between the provisions of Section 397(2) of the Code of Criminal Procedure and the Section 21 of the Act. Section 21 starts with a non obstante clause which starts with the words `Notwithstanding anything contained in the code', it excludes appeals from any interlocutory order of a Special Court. The Apex Court while examining the affect of such non obstante clause in reference to Section 11 (1) of the Special Courts Act (22 of 1979) in case of V.C.Shukla Vs. State through C.B.I.-AIR 1980 SC 962 held that "the non obstante clause which starts with the words `Notwithstanding anything in the Code', it excludes appeals from any interlocutory order of a Special Court. The reason for this exclusion is not far to seek. In the first place, such an exclusion is fully consistent with the object of the act viz. to secure the quickest dispatch and an expeditious disposal of the case so as to cut down all delays which may be caused by providing for appeal against interlocutory orders also. As the non obstante clause expressly excludes the provisions of the Code of Criminal Procedure, (9) Cr.A.No. 1025/2012 we cannot call into aid the provisions of Section 397 (2) of the Code which would amount to frustrating the very object which Section 11 seeks to advance......................................When the act excludes the Code then it is obvious that it excludes an appeal against any type of an interlocutory order. Thus, summing up the natural and logical meaning of an interlocutory order, the conclusion is inescapable that an order which does not terminate the proceedings or finally decide the rights of the parties is only an interlocutory order. In other words, in ordinary sense of the term, an interlocutory order is one which only decides a particular aspect or a particular issue or a particular matter in a proceeding, suit or trial but which does not however conclude the trial at all. This would be the result if the term interlocutory order is interpreted in its natural and logical sense without having resort to Criminal Procedure Code or any other statute. That is to say, if we construe interlocutory order in ordinary parlance it would indicate the attributes, mentioned above, and this is what the term interlocutory order means when used in Section 11(1) of the Act."
14. Applying these tests in-relation to the order of framing charges, the Apex Court further observed that "the order of framing charges is purely an interlocutory order as it does not terminate the proceedings but the trial goes on until it culminates in acquittal or conviction. It is true that if the Special Court would have refused to frame charges and discharged the accused the proceedings would have `terminated' but that is only one side (10) Cr.A.No. 1025/2012 of the picture. The other side of the picture is that if the Special Court refused to discharge the accused and framed charges against him, then the order would be interlocutory because the trial would still to be alive." The provisions of Section 11(1) of the Special Court Act (22 of 1979) are pari- metria to the provisions of Section 21 of the Act. For the sake of convenience, Section 11 is reproduced as under :
Section 11 (1): Notwithstanding anything in the code, an appeal shall lie as of right from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the Supreme Court both on facts and on law.
(2) Except as aforesaid, no appeal or revision shall lie to
any Court from any judgment, sentence or order of a
Special Court."
15. Thus, the decision of the Apex Court in V.C.Shukla's (supra) case governs the situation. The term `interlocutory order' as interpreted in case of Amarnath (supra) and Madhu Limaye (supra) cannot be made applicable in case of the term `interlocutory order' as incorporated in Section 21 of the Act, since by the existence of non obstante clause, the application of the code has been excluded from the field of appeals provided under Section 21 of the Act. However, the position would be some what different in view of the fact that in Special Courts Act, the appeal from any judgment, sentence or order not being an interlocutory order lay to Supreme Court, whereas in the NIA Act, the appeal lies to the High Court. In both the Acts, the provision of revision was not existing. In (11) Cr.A.No. 1025/2012 respect to Special Courts Act, 1979, the Apex Court in V.C.Shukla's case observed that "when the Act excludes the Code then it is obvious that it excludes an appeal against any type of an interlocutory order. The absence of revision is more than compensated by giving the accused a right of an appeal against any judgment or order of the Special Judge as of right and open on facts and law. There is one more reason why the power of revision has been excluded. The trial is held by a sitting High Court Judge who also would have the power of revision if he was sitting in a High Court.
In these circumstances, it must be presumed that whenever a Special Judge passes any interlocutory order or an intermediate order like framing of charges, he would do so only with full and complete application of his mind and considering the various principles and guidelines indicated by this Court in several decisions, some of which have been discussed above, and therefore, it would not be in keeping with the dignity, decorum and status of the Special Judge to provide for an appeal even against such an order which he is supposed to pass with full application of mind and due deliberation." In NIA Act, in accordance with sub-section 3 and sub- section 7, a Special Court has to be presided over by a Judge to be appointed by the Central Government on the recommendations of the Chief Justice of the High Court and a person shall not be qualified for appointment as a Judge or Additional Judge of a Special Court unless he is, immediately before such appointment, a Sessions Judge or a Additional Sessions Judge in any State. Thus, in the Act, the Special Court is not to (12) Cr.A.No. 1025/2012 be presided by a High Court Judge. In such a situation, the term `interlocutory order' must receive a "little bit liberal" interpretation keeping in mind the object of the Act viz. to secure the quickest dispatch and an expeditious disposal of the case so as to cut down all delays which may be caused by providing for an appeal against the interlocutory order also.
16. Learned senior counsel for the appellant submitted that the grant of permission to interrogate the accused would amount to reinvestigation and not mere further investigation, which cannot be permitted. It is not disputed that the FIR 661/2007 was registered by Police Station Industrial Area, Dewas on 29.12.2007 under Sections 302, 120-B and 201/34 of the Indian Penal Code and Sections 25 & 27 of the Arms Act and after investigation by the local police the charge sheet was filed in Dewas Court. However, vide Govt. of India, Ministry of Home Affairs (IS-I Division) Order No. 1-11034/18/2011 IS-IV dated 1st April, 2011, the investigation of the case was directed to be taken over by Police Station, NIA, and a new FIR No. RC/08/2011 NIA Act DLI was registered on 25.6.2011. On a cursory look, it may appear that NIA Police initiated fresh investigation, but it is not correct. Under the provisions of Section 6(4) of the Act, it has been provided that "where the Central Government is of the opinion that the offence is a Scheduled Offence and it is a fit case to be investigated by the Agency, it shall direct the Agency to investigate the said offence." Section 6(6) states that "where any direction has been given under sub-section (4) (13) Cr.A.No. 1025/2012 or sub section (5), the State Government and any police officer of the State Government investigating the offence shall not proceed with the investigation and shall forthwith transmit the relevant documents and records to the Agency." For removal of doubts in sub section (7), it has been declared that till the Agency takes up the investigation of the case, it shall be the duty of the Officer-in-charge of the police station to continue the investigation. Since it was suspected that the murder of Sunil Joshi was committed for the purpose of causing disappearance of the evidence of terrorist acts by killing the prime mover/conspirator in number of terror blasts cases in pursuance of a criminal conspiracy, therefore, the investigation of the case was handed over to NIA police. Even if the investigation of the case was completed and the report under Section 173 of the Code of Criminal Procedure was filed, the right of the police officer investigating the case was not closed in view of the provisions of Section 173(8) of the Code which provides:
"173 (8): Nothing in this Section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under (14) Cr.A.No. 1025/2012 sub-section (2)."
17. In the above circumstances, it cannot be held that the NIA if sought to interrogate any person including accused in respect of the alleged offences, it would be starting the investigation abinitio.
18. Learned senior counsel for the appellant on the strength of Apex Court decision rendered in T.T.Antony Vs. State of Kerala and others- (2001) 6 SCC 181 =AIR 2001 SC 2637 argued that there can be no second FIR in respect of the same cognizable offence or the same incident or occurrence. We are unable to accept the aforesaid argument in view of the peculiar circumstances of the case and the provisions of Section 6 of the Act, wherein the investigation from the hands of State Police has been directed to be handed over to the Agency and the Agency formally registered its FIR suspecting the commission of offence specified in the Schedule attached to the Act. Apart from it, in case of Upkar Singh Vs. Ved Prakash and others- (2004) 13 SCC 292, the Supreme Court doubted the correctness of the judgment rendered by it in T.T. Antony's case (supra). Hence Upkar's case was referred to three Judges Bench to consider the correctness of the law laid down in the case of T.T. Antony. In Upkar Singh's case, the Supreme Court held that in T.T.Antony's case (supra), it did not consider the legal right of an aggrieved person to file counter claim. The observations in the said judgment clearly indicate that filing of a counter complaint is permissible. If the law laid down in T.T. (15) Cr.A.No. 1025/2012 Antony's case is to be accepted as holding that a second complaint in regard to the same incident filed as a counter complaint is prohibited under the Criminal Procedure Code then such conclusion would lead to serious consequences. The Supreme Court took a hypothetical example that if in regard to a crime committed by the real accused, he takes the first opportunity to lodge a false complaint and the same is registered by the jurisdictional police then the aggrieved victim of such crime will be precluded from lodging a complaint giving his version of the incident in question, consequently he will be deprived of his legitimated right to bring the real accused to book. This cannot be the purport of the Code.
19. In case of Nirmal Singh Kahlon Vs. State of Punjab and others-AIR 2009 SC 984, the Supreme Court observed that "when two conspiracies are alleged; one is larger than the other, there may be some factors but the nature of offence would differ. An offence committed would not be judged by mere mentioning of the sections but the mode and manner in which the same was committed as also the nature thereof." The Supreme Court found that the first information report lodged at the instance of State Vigilance Officer shows that the same was general in nature. One of the several allegations contained therein was that irregularities were committed in the matter of recruitment of Panchayat Secretaries. No detail, however, was furnished. All the persons involved were not named. What types of irregularities have been committed were (16) Cr.A.No. 1025/2012 not stated. The High Court while entertaining the writ petition filed by the candidates alleging scam in recruitment formed a prima facie opinion as regards the systematic commission of fraud. While dismissing the writ petition filed by the selected candidates, it initiated a suo motu public interest litigation. Since it involved investigation into the allegations of commission of fraud in a systematic manner, it had a wide ramification as a former minister of the State was said to be involved. The High Court directed the investigation by the C.B.I.. The second F.I.R. Lodged by the Central Bureau of Investigation (CBI) was on a wider canvass. Whereas the first FIR contained the misdeeds of individuals, the second one depicts a crime committed in course of selection process of Panchayat Secretaries involving a large number of officers. In these circumstances, it was held that lodging of the second FIR was not impermissible in law. ...................................... The second FIR was held to be maintainable not only because there were new discoveries made on factual foundations. There appears no dispute about the proposition laid down by the Apex Court in case of Ramchandran Vs. R. Udayakumar and others-AIR 2008 SC 3102 that even after completion of investigation under sub-section (2) of Section 173 of the Code, the police has right to further investigate under sub-section (8), but no fresh investigation or reinvestigation.
20. Learned counsel for the appellant placing reliance on Kishanlal Vs. (17) Cr.A.No. 1025/2012 Dharmendra Bafna and another- AIR 2009 SC 2932 submitted that while passing the impugned order for permitting the interrogation of the accused, learned Special Judge did not consider that in what respect the investigation has not been carried out and what hidden truths were required to be unearthed. In the instant case, the investigation has been handed over to NIA, which has been constituted as a Investigation Agency at the national level to investigate and prosecute offences affecting the sovereignty, security and integrity of India, security of State, friendly relations with foreign States and offences under Acts enacted to implement, international treaties, agreements, conventions and resolutions of the United Nations. It has also been revealed in the FIR registered by NIA that the alleged offences was suspected for causing disappearance of the evidence of terrorist acts by killing deceased, who was a conspirator in number of terror blast cases in pursuance of criminal conspiracy. Thus, at that stage, in peculiar facts and circumstances of the case, it could not be expected from the Agency or the Special Court to have disclosed the facts or the evidence to be unearthed. And apart from it, granting permission to interrogate a person/accused by investigating agency or to further investigate the matter would surely fall in the ambit of the term `interlocutory order', not appellable under Section 21 of the Act.
21. Lastly, the learned counsel for the appellant argued that accused persons were subjected to ill treatment in judicial custody. Several (18) Cr.A.No. 1025/2012 pressures and tactics were applied on them to fabricate story so as to implicate them in a false case, therefore, if at all, the interrogation was found necessary, the permission to accused to be assisted by an Advocate should have been granted. There was no justification in disallowing the request of accused to be assisted by an Advocate during interrogation. Special Court failed to take into consideration the fundamental rights of a person in custody. Placing reliance on the decision by the Apex Court rendered in Smt. Nandini Satpathy Vs. P.L.Dani and another-AIR 1978 SC 1025, learned counsel submitted that the spirit of Article 22(1) of the Constitution of India 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. Learned senior counsel for the appellant submitted that the order passed by the Special Court denying presence of Advocate with accused at the time of interrogation, since amounts to denial of constitutional right of accused, cannot be said to be an interlocutory order, therefore, the appeal under Section 21 of the Act is maintainable. The right of a person including accused, who has been arrested or detained, to consult and to be defended by local person has been recognized under Article 22 (1) of the Constitution of India; it has been held by the Apex Court in case of Nandini Satpathy (supra) that "if an accused person expresses the wish to have his lawyer by (19) Cr.A.No. 1025/2012 his side when his interrogation 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. 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. 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. In view of the above proposition, we find refusal to allow a Lawyer to be present with accused when he is interrogated in custody is not an interlocutory order and is, therefore, open to be challenged in appeal. However, in view of the ratio of Apex Court decisions rendered in case of Poolpandi Vs. Superintendent, Central Excise and others-AIR 1992 SC 1795, D.K.Basu Vs. State of West Bengal- AIR 1997 SC 610 & Directorate of Revenue Intelligence Vs. Jugal Kishore- (2011) 12 SCC 362, the question of grant of permission to have a lawyer with accused at the time of investigation has to be considered with care and caution keeping in view the seriousness of the offence and the facts and circumstances of each case, else, as observed in Nandini Satpathy, it will lead to a "Police-Station-Lawyer" system, an abuse which breeds other vices. In Poolpandi's case (supra) the Apex Court observed that "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 (20) Cr.A.No. 1025/2012 hypothetical person who may in the future be discovered to have been guilty of some offence. In order that the guarantee against testimonial compulsion incorporated in Article 20(3) may be claimed by a person, it has to be established that when he made the statement in question, he was a person accused of an offence. A person called for questioning during investigation by authorities under the provisions of the Customs Act or the Foreign Exchange Regulation Act (FERA) is not an accused. He cannot, therefore, claim that in view of the possibility of his being made an accused in future, he is entitled to the presence of his lawyer when he is questioned. Refusal to allow presence of lawyer in such case would not be violative of protection under Article 20(3) of the Constitution of India. In case of D.K.Basu (supra), the Apex Court observed that "how do we check the abuse of police power? Transparency of action and accountability perhaps are two possible safeguards which this Court insist upon. Attention is also required to be paid to properly develop work culture, training and orientation of the police force consistent with basic human values. Training methodology of the police needs restructuring. The force needs to be infused with basic human values and made sensitive to the constitutional ethos. Efforts must be made to change the attitude and approach of the police personnel handling investigations so that they do not sacrifice basic human values during interrogation and do not resort to questionable forms of interrogation. With a view to bring in transparency, the presence of counsel of the arrestee at some point of time during the (21) Cr.A.No. 1025/2012 interrogation may deter the police from using third degrees methods during interrogation................................. There is one other aspect also which needs our consideration. We are conscious of the fact that the police in India have to perform a difficult and delicate task, particularly in view of the deteriorating law and order situation, communal riots, political turmoil, student unrest, terrorist activities and among others the increasing number of underworld and armed gangs and criminals. Many hard core criminals like extremists, the terrorists, drug peddlers, smugglers who have organized gangs, have taken strong roots in the society. It is being said in certain quarters that with more and more liberalization and enforcement of fundamental rights, it would lead to difficulties in the detection of crimes committed by such categories of hardened criminals by soft peddling interrogation. It is felt in those quarters that if we lay too much of emphasis on protection of their fundamental rights and human rights, such criminals may go scot-free without exposing any element or iota of criminality with the result, the crime would go unpunished and in the ultimate analysis the society would suffer. The concern is genuine and the problem is real. To deal with such a situation, a balanced approach is needed to meet the ends of justice. This is all the more so, in view of the expectation of the society that police must deal with the criminals in an efficient and effective manner and bring to book those who are involved in the crime. The cure cannot, however, be worst than the disease itself." In the guidelines required to be followed in cases of arrestee or detention, the (22) Cr.A.No. 1025/2012 Apex Court in the above case observed that the arrestee may be permitted to meet his Lawyer during interrogation, though not through out the interrogation. The Apex Court in case of Jugal Kishore (supra) taking a cue from the directions made in D.K.Basu's case and having regard to the special facts and circumstances of the case deemed it appropriate to direct the interrogation of the detenue to be held within the sight of his Advocate or any other person duly authorized by him. It was further directed that the Advocate or the person authorized by the detenue may watch the proceedings from a distance or from beyond a glass partition, but he will not be within the hearing distance and it will not be open to the accused to have consultation with him in the course of interrogation.
22. In the instant case, when application was filed by the NIA Inspector seeking permission to interrogate accused Pragya Singh in jail, no apprehension of any kind of ill treatment or torture was indicated by her Lawyer and merely a permission for himself to remain present at the time of interrogation was sought. Learned counsel for the appellant before this Court, however, submitted that the accused, who was suffering with serious ailments and was under continuous treatment might be subjected to coercion or mental torture. In our opinion, without going deep into aforesaid apprehensions, this appeal may be disposed of in terms of directions made by the Apex Court in cases of D.K.Basu (supra) and Jugal Kishore (supra).
(23) Cr.A.No. 1025/2012
23. Accordingly, it is directed that the interrogation of the accused Pragya Singh shall be held within the sight of her Advocate or any other person duly authorized by her. The Advocate or the person authorized by her may watch the proceedings from a distance or from beyond a glass partition, but he or she shall not be within the hearing distance and it will not be open to the appellant to have consultation with him/her in the course of interrogation.
24. In the result, the impugned order passed by the Special Court is modified and the appeal is allowed to the extent indicated above.
(RAKESH SAKSENA) (S.C.SINHO)
JUDGE JUDGE
AD/