Section 41D CrPC | Advocate Of Accused Cannot Be Permitted To Be Present In Course Of Entire Interrogation: Calcutta HC

The Calcutta High Court has held that the Advocate of an accused person cannot be permitted to be present in the course of entire interrogation under Section 41D of the Code of Criminal Procedure.

The bench of Justice Bibek Chaudhuri held 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."

Section 41D of the Code of Criminal Procedure provides for the right of the arrested person to meet an advocate of his choice during interrogation.

Advocates Arijit Chakrabarti and Deepak Sharma appeared for the petitioner-ED.

The Court made this observation while dealing with a criminal revision petition by the Enforcement Directorate challenging the legality of the order passed by the Chief Metropolitan Magistrate in allowing the Advocate for the opposite party/accused to all along remain present at the time of investigation.

The Advocate for the petitioner submitted that the Magistrate had failed to appreciate the difference between the accused person's entitlement to meet an advocate of his choice during interrogation and giving unfettered authority to the Advocate for the accused/opposite party to remain present in course of investigation and interrogation of the accused/opposite party.

It was further submitted that the presence of the advocate for the accused/opposite party during interrogation will reveal the course and direction of investigation to others.

The Advocate for the petitioner argued that in view of the said direction, the investigating officer of the Enforcement Directorate has not been able to interrogate the accused till date.

The High Court observed that "It is needless to say that Section 41D of the Code of Criminal Procedure was inserted in the statute by Amending Act 5 of 2009 with effect from 1st November, 2010. The purpose and object of introduction of Section 41D of the Cr. P. C. is to ensure 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."

Therefore, the Court modified the impugned Order in the following manner-

"The Enforcement Directorate is entitled to interrogate the accused/opposite party during his detention with the Enforcement Directorate. Entire process of interrogation shall be videographed. The accused/opposite party shall be permitted to meet an advocate of his choice once for a day for half an hour during the course of his detention in the custody of the Enforcement Directorate."

Cause Title- CRR No. 3943 of 2022

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