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Explained: In Sachin Waze case, the right to counsel in custody

Arrested Mumbai policeman Sachin Waze has sought his lawyer’s presence during questioning, while the NIA has argued that this insistence is hampering the probe. A look at the laws, and Supreme Court verdicts.

Written by Sadaf Modak | Mumbai |
Updated: March 24, 2021 8:47:56 am
Arrested police officer Sachin Waze being taken to court. (PTI Photo)

On Friday, the National Investigation Agency (NIA) told a special court in Mumbai that the arrested assistant police inspector Sachin Waze, now suspended from Mumbai Police, was not cooperating in the probe against him and was insisting on his lawyer being present during interrogation. Separately, Waze filed an application seeking to be allowed to meet his lawyer in privacy while he is in police custody. A look at what the law says about legal counsel for those in police custody.

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Is access to a lawyer the right of an accused?

Across the world, various rights are available to a person while in custody of an investigating agency to prevent him or her from being forced into giving self-incriminating statements through means including torture.

The International Covenant on Civil and Political Rights affirms the right of an accused to be informed of the reasons for an arrest, the charges against him and the right to be provided legal assistance. The “Miranda rights” or “Miranda warning”, as they are referred to in the US, require a police officer to inform a suspect being arrested that he has the right to talk to a lawyer for advice before being questioned,, and the right to have a lawyer with him during questioning.

In India, the safeguards available to a person in such circumstances are enshrined in the Constitution. Article 20 (3) states: “No person accused of any offence shall be compelled to be a witness against himself”.

And Article 22 states that a person cannot be denied the right to consult and to be defended by a legal practitioner of his choice. This includes provisions that grant an accused the “right to consult” a lawyer. Section 41D of the Criminal Procedure Code (CrPC) states that an accused is entitled to “meet an advocate of his choice during interrogation, though not throughout interrogation”.

Are lawyers allowed to remain present during interrogation of an accused in custody?

Unlike in some countries, lawyers in India are not allowed to be with an accused throughout their investigation. Apart from the provisions of Section 41D of the CrPC, courts also rely on the Supreme Court judgment in the D K Basu case of 1997, considered the guiding principles to be followed by investigating agencies in cases of arrest or detention. The judgment states that “an arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation”. The Supreme Court stressed the safeguards for accused, but also spoke of “difficulties in detection of crimes”, especially in cases of “hardcore criminals”, and ruled that a lawyer cannot be permitted to remain present throughout the interrogation.

In Senior Intelligence Officer vs Jugal Kishore Sharma (2011), the Supreme Court took into consideration alleged threats given to an accused of being subjected to third degree methods, as well as his medical condition as he had suffered a heart attack. It allowed the accused’s lawyer to “watch the proceedings from a distance or from beyond a glass partition”, but said “he will not be within the hearing distance and it will not be open to the respondent to have consultations with him in course of the interrogation”.

The same judgment was referred to by the special court in Mumbai, which allowed for Waze’s lawyer to remain present during interrogation but separated by a glass partition.

In many criminal cases, it is left to the discretion of the court that has remanded an accused to the custody of the police, to decide on whether the lawyer can be permitted to meet the person for a stipulated time in private when interrogation is not in progress.

What has the special court ruled in Waze’s case?

Waze, who was arrested on March 13 by the NIA for his alleged role in the Ambani residence bomb threat case, is in custody until March 25. His lawyer last week filed an application seeking to remain present at the time of his interrogation as well as for permission to meet and consult his lawyer in private during non-interrogation hours in the NIA office. The NIA opposed it stating that it would “frustrate” the basic purpose of police custody and that access to legal counsel in private cannot be claimed as a general right. Waze’s lawyer said that if an investigating officer hears their conversation, it would amount to breach of lawyer-client confidentiality.

The court did not allow his plea to meet his lawyer in private but permitted his lawyer to remain present at the time of interrogation separated by a glass partition, so that he cannot hear the investigators and Waze.

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So, has the lawyer been present during interrogation?

The NIA has filed a separate plea stating that after Waze’s lawyer did not show up at the NIA office on Friday, the investigation had stopped since Waze insisted on his lawyer’s presence before he could be subjected to questioning. The NIA sought that the lawyer be directed to remain present for the interrogation throughout so as to not hamper the probe.

Waze’s lawyer informed the court that he was present at the NIA office for three days while he was being questioned at different hours, and was ready to rush to the office at any time of the day or night if informed about the beginning of questioning. The lawyer said he was staying at a nearby hotel, five minutes away from the NIA office in Mumbai, but was not informed by the NIA on Friday about when the questioning was being resumed. The court rejected the NIA’s plea.

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