S.41D CrPC | Advocate Cannot Be Permitted To Remain Present With Accused During Entire Course Of Interrogation: Calcutta High Court

The Calcutta High Court has made it clear that Section 41D of CrPC, which entitles an accused to meet an Advocate of his choice during interrogation by the investigating agency, does not extend to presence of Advocate throughout the investigation.While admitting a criminal revision application preferred by the Enforcement Directorate (ED) against the Magistrate's order permitting the Advocate for the opposite party/accused to all along remain present at the time of investigation, Justice Bibek Chaudhuri observed,"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, it held that Section 41D CrPC does not mean that the advocate of the choice will be permitted to be present in course of entire interrogation.The proceedings are instituted under the Prevention of Money Laundering Act, 2002 ('PMLA') in connection with an investigation conducted by ED into allegations of criminal misappropriation of large sums of money amassed through cryptocurrency and bitcons purchased with various bank accounts by way of introduction and circulation of false and forged online gaming apps. The said investigation culminated into the arrest of several accused individuals under Section 19 of PMLA and the said accused individuals were thereafter produced before the Chief Metropolitan Magistrate. ED counsel argued that in terms of the plain language of Section 41D, the Magistrate misconstrued the said provision by failing to appreciate the difference between the accused's statutory entitlement to meet advocate of choice during interrogation as opposed to giving unfettered authority to the respondents' Advocate to be present in the course of the investigation and that should the Magistrate's interpretation of Section 41D be given effect to, the same would render the interrogation process of investigating agencies fruitless as also reducing the said process to a baseless formal compliance. ED further raised objections as to the observation of the Chief Metropolitan Magistrate requiring the accused individuals to be subjected to medical examination once every 24 hours in the custody of the agency, arguing the same to be violative of the guidelines laid down by the Supreme Court in D. K. Basu v. State of West Bengal [1997 (1) SCC 416]. In its interim order, the High Court has permitted the respondents to meet an advocate of choice once a day for half an hour during the course of detention in the ED custody. The order of the Chief Metropolitan Magistrate was also modified to the extent that the respondents will be subjected to routine medical examination once every 48 hours in terms of the guidelines laid down by the Supreme Court in D. K. Basu v. State of West Bengal [1997 (1) SCC 416].The matter is listed again one week after court vacation. Case title: In Re: Enforcement Directorate v. Mr. Arijit Chakrabarti & Anr., CRR No. 3943 of 2022 Order date: 23.10.2022Citation: 2022 LiveLaw (Cal) 326 Click Here To Read/Download Order

S.41D CrPC | Advocate Cannot Be Permitted To Remain Present With Accused During Entire Course Of Interrogation: Calcutta High Court

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