In 1978(2) SCC 424 Nandini Satpathy Vs. P.L. Dani Hon’ble Supreme Court laid down following guidelines about Right of accused to consult Advocate.
“(a) Under Article 22(1), the right to consult an advocate of his choice shall not be denied to any person who is arrested. Articles 20(3) and 22(1) may be telescoped by making it prudent for the police to permit the advocate of the accused to be present at the time he is examined. Overreaching Article 20(3) and Section 161(2) will be obviated by this requirement. But it is not as if the police must secure the services of a lawyer, for, that will lead to ‘police station-lawyer’ system with all its attendant vices. If however an accused expresses the wish to have his lawyer by his side at the time of examination, this facility shall not be denied, because, by denying the facility, the police will be exposed to the serious reproof that they are trying to secure in secrecy and by coercing the will an involuntary self-incrimination. It is not as if a lawyer’s presence is a panacea for all problems of self-incrimination, because, he cannot supply answers or whisper hints or otherwise interfere with the course of questioning except to intercept where intimidatory tactics are tried and to caution his client where incrimination is attempted and to insist on questions and answers being noted where objections are not otherwise fully appreciated. The lawyer cannot harangue the police, but may help his client and complain on his behalf. The police also need not wait for more than a reasonable time for the advocate’s arrival.
(b) Where a lawyer of his choice is not available, after the examination of the accused, the police officer must take him to a magistrate, a doctor or other willing and responsible non-partisan official or non-official and llow a secluded audience where he may unburden himself beyond the view of the police and tell whether he has suffered duress, in which case he should be transferred to judicial or other custody where the police cannot reach him. The collocutor communicate the relevant conversation to the nearest magistrate.”
Hon’ble Supreme Court in Criminal Appeal No. 1899-1900 of 2011 Mohd. Ajmal Mohd. Amir Kasab @ Abu Mujahid Vs. State of Maharastra has observed in Para 484 to 488 as follows :-
484. We, therefore, have no hesitation in holding that the right to access to legal aid, to consult and to be defended by a legal practitioner, arises when a person arrested in connection with a cognizable offence is first produced before a magistrate. We, accordingly, hold that it is the duty and obligation of the magistrate before whom a person accused of committing a cognizable offence is first produced to make him fully aware that it is his right to consult and be defended by a legal practitioner and, in case he has no means to engage a lawyer of his choice, that one would be provided to him from legal aid at the expense of the State. The right flows from Articles 21 and 22(1) of the Constitution and needs to be strictly enforced. We, accordingly, direct all the magistrates in the country to faithfully discharge the aforesaid duty and obligation and further make it clear that any failure to fully discharge the duty would amount to dereliction in duty and would make the concerned magistrate liable to departmental proceedings.
485. It needs to be clarified here that the right to consult and be defended by a legal practitioner is not to be construed as sanctioning or permitting the presence of a lawyer during police interrogation. According to our system of law, the role of a lawyer is mainly focused on court proceedings. The accused would need a lawyer to resist remand to police or judicial custody and for granting of bail; to clearly explain to him the legal consequences in case he intended to make a confessional statement in terms of Section 164 CrPC; to represent him when the court examines the charge sheet submitted by the police and decides upon the future course of proceedings and at the stage of the framing of charges; and beyond that, of course, for the trial. It is thus to be seen that the right to access to a lawyer in this country is not based on the Miranda principles, as protection against self-incrimination, for which there are more than adequate safeguards in Indian laws. The right to access to a lawyer is for very Indian reasons; it flows from the provisions of the Constitution and the statutes, and is only intended to ensure that those
provisions are faithfully adhered to in practice.
486. At this stage the question arises, what would be the legal consequence of failure to provide legal aid to an indigent who is not in a position, on account of indigence or any other similar reasons, to engage a lawyer of his own choice?
487. Every accused unrepresented by a lawyer has to be provided a lawyer at the commencement of the trial, engaged to represent him during the entire course of the trial. Even if the accused does not ask for a lawyer or he remains silent, it is the Constitutional duty of the court to provide him with a lawyer before commencing the trial. Unless the accused voluntarily makes an informed decision and tells the court, in clear and unambiguous words, that he does not want the assistance of any lawyer and would rather defend himself personally, the obligation to provide him with a lawyer at the commencement of the trial is absolute, and failure to do so would vitiate the trial and the resultant conviction and sentence, if any, given to the accused (see Suk Das v. UT of Arunachal Pradesh95).
488. But the failure to provide a lawyer to the accused at the pre-trial stage may not have the same consequence of vitiating the trial. It may have other consequences like making the delinquent magistrate liable to disciplinary proceedings, or giving the accused a right to claim compensation against the State for failing to provide him legal aid. But it would not vitiate the trial unless it is shown that failure to provide legal assistance at the pre-trial stage had resulted in some material prejudice to the accused in the course of the trial. That would have to be judged on the facts of each case. [ 95 (1986) 2 SCC 401 ]
In UP the following procedure is followed:
i. Every Police Station under the jurisdiction of a court sends one personnel to the court every day during the 2nd half.
ii. The police personnel then gather trial dates from the concerned court and report to the Superintendent of Police office by the evening.
iii. SP offices then co-ordinate among each other and the concerned IO is informed way in advance of the next hearing date when s/he has to appear as a witness.
This gives considerable amount of time to the IO to plan the court appearance and avoid delay in appearance.
Most frequently found cognizable sections are as follows.
• Murder – Section 302 of the IPC
• Rape – Section 376 of the IPC
• Culpable Homicide not amounting to murder-Section 304 of the IPC
• Dowry Death- Section 304B of the IPC
• Attempt to murder(Marpeet Case)- Section 307 of the IPC
• Kidnapping (Apharan)- Section 363 of the IPC
• Arms Act
• Extortion (Rangdaari)
• Armed Robbery (Dacoity)
Custodial rape and torture cases :
1. Delay of nearly 2 weeks in conducting medical examination
2. Delay of nearly 2 yrs in filing of Charge Sheet
3. Delay of nearly 2 yrs in charge framing
4. Victim unaware of case status and lawyer
- Victim claims she cannot afford a private lawyer and legal aid panel lawyers do not
want to fight her cases of alleged custodial rape and torture.
In an instance of a custodial rape where victim is a prisoner it is difficult for the inmate to come up to the prison administration to register the complaint which may lead to delay and tampering of evidence. Apart from being hesitant the inmate also may not be aware of the steps that need to be taken. Here the onus to take action and secure the safety of the inmate remains on the prison administration. The prison administration should initiate immediate medical examination of the inmate and initiate other legal steps, necessary actions.
Police torture in Thana before Production
When torture victim come to prison from court the prison administration should send the inmate for immediate medical treatment. If torture victim come to prison without mention of the same in the medical report, the prison administration should bring the matter to the notice of the concerned court at the earliest.