Document Fragment View

Matching Fragments

In para 59 it is held -

" Lawyer's presence is a constitutional claim in some circumstances in our country also, and, in the context of Art.20(3), is an assurance of awareness and observance of the right to silence. The Miranda decision (1966) 384 US 436) 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 Art.20(3) and Art.22(1) may, in a way, be telescoped by making it prudent for the Police to permit the advocate of the accused, if there be one, to be present at the time he is examined. Overreaching Art.20(3) and section 161(2) will be obviated by this requirement. We do not lay down that the Police must secure the services of a lawyer. That will lead to 'police-station-lawyer' system, an abuse which breeds other vices. But all that we mean is that if an accused person expresses the wish to have his lawyer by his side when his examination 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."
"But all that we mean is that if an accused person expresses the wish to have his lawyer by his side when his examination 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."

The sentence has to be read in full. There is no full stop after the phrase "this facility shall not be denied". The Supreme Court in this passage has said that when such a request is made, "it shall not be denied without being exposed to the serious reproof that involuntary self-crimination secured in secrecy by coercing the will, was the project." i.e., when such a request is rejected, the statement recorded by the police would be "exposed to serious reproof" that it was involuntary self-crimination. The Supreme Court has not held in this case when such a request is made, it is obligatory on the part of the Magistrate not to deny that request. It only cautions when such a request is not granted, any statement recorded would be exposed to serious reproof that such statement was not recorded under compulsion and that it was not involuntary. In the very same Judgment, it is also stated "however, fanciful claims, unreasonable apprehensions and vague possibilities cannot be the hiding ground for an accused person. He is bound to answer where there is no clear tendency to criminate." Therefore, it is not the decision of the Supreme Court that when an accused person is remanded to police custody and when he wanted to have a lawyer during interrogation by the police such a request shall be complied with.

The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, it is not compulsion."

The Supreme Court in Nandini satpathy's case had only followed the earlier decisions and it has only stated that when such a request is not complied with, it is open to serious reproof as stated above. Therefore, there is no violation of the constitutional mandate when the accused was not permitted to have a lawyer during the entire interrogation. On the other hand, the Supreme Court in D.K.Basu's Case has held that the accused should be permitted to consult his lawyer during the interrogation that has been provided in the impugned order. Therefore, there is no violation of any of the provisions of Cr.P.C or the constitutional mandate under Article 20(3) and 22(1). Therefore, the impugned order is not illegal; and hence not liable to be quashed.