In CRR No. 3943 of 2022-CAL HC- Sec.41D of CrPC protects accused during interrogation entitling him to meet  advocate of his choice but such advocate is not permitted to be present in course of his entire interrogation: Calcutta HC
Justice Bibek Chaudhuri [23-10-2022]

Read Order: IN RE V. ENFORCEMENT DIRECTORATE

Mansimran Kaur

Kolkata, November 1, 2022:While referring to Section 41D of the CrPC which gives an arrested person the right to meet an advocate of his choice during interrogation, the Calcutta High Court has opined that this provision ensures the fundamental right of a citizen enshrined in Article 21 of the Constitution of India.

A Single-Judge Bench of Justice Bibek Chaudhuri admitted the instant criminal revision petition by observing that  Section 41D of the Code of Criminal Procedure protects an accused during interrogation entitling him to meet an advocate of his choice. It does not mean that the advocate of the choice will be permitted to be present in course of his entire interrogation.

The Enforcement Directorate through its Assistant Director filed the instant criminal revision challenging the legality, validity and propriety of the order dated 21st October, 2022 by alleging   that  the Chief Metropolitan Magistrate acted illegally and with material irregularity in allowing the Advocate for the opposite party/accused to all along remain present at the time of investigation, rendering the process of investigation absolutely baseless and irrelevant. 

It was further alleged that the  Magistrate, while issuing a direction upon the investigating officer to arrange for medical examination of the opposite party/accused during his custody with the Enforcement Directorate every 24 hours did not follow the guidelines in D. K. Basu’s case.

The competent authority of the Federal Bank, Park Street Branch lodged an FIR against one Aamir Khan under Sections 420/406/409/468/479/471/34 of the Indian Penal Code alleging commission of cheating, criminal misappropriation of money and forgery against the said Aamir Khan.

 On the basis of the said complaint, police registered a case. Similar complaint was lodged against the above-named accused by two private complainants. Specific case was also registered against Aamir Khan.

 During investigation of the said two cases, it was ascertained that the said Aamir Khan and his associates committed criminal misappropriation of huge amount of money by introducing false and forged online gaming Apps and insisting upon the users of the said App to spread the said online gaming Apps to others alluring and enticing high monetary return. 

In this way, the said Aamir Khan and his associates managed to accumulate a huge amount of money. Numbers of bank accounts were created for keeping the said money. Money earned, was also used in cryptocurrency and bitcoins purchased through various accounts.

What troubled the Enforcement Directorate was that by passing the impugned order, the  Magistrate permitted the  Advocate for the opposite party to remain present at the time of investigation by the investigating officer of the said case.

After considering the submissions from both the sides, the Court noted that it is needless to say that Section 41D of the Code of Criminal Procedure was inserted in the statute by amending Act of 2009 with effect from November 1, 2010. The purpose and object of introduction of Section 41D of the Cr. P. C. is to ensure the fundamental right of a citizen enshrined in Article 21 of the Constitution of India. Such liberty of individuals cannot be curtailed likely.

 At the same time, it is the duty of the Court to strike a balance between the right of a citizen for being represented by an advocate during investigation and trial and the power of the investigating agency to carry on proper investigation to unearth the truth and collect evidence against the perpetrator of a crime punishable under any penal provision of the statute, the Court observed. 

“Therefore, Section 41D of the Code of Criminal Procedure protects an accused during interrogation entitling him to meet an advocate of his choice. It does not mean that the advocate of the choice will be permitted to be present in course of his entire interrogation”,the Court observed while admitting the criminal revision petition.