Recently, 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.
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.
In Feb., an SUV was found parked near industrialist Mukesh Ambani’s multi-story residence Antilia, with gelatin sticks in it. The NIA arrested the Mumbai policeman. Sachin Waze, for his alleged role in this case.
The NIA recently claimed in Mumbai Court that Sachin Waze has not been cooperating in the interrogation. He has sought his lawyer’s presence during questioning, while the NIA has argued that this insistence could hamper the investigation.
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.
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”.
Waze’s lawyer 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.
The case of DK Basu v. State of West Bengal is one of the landmark authorities which enumerate guidelines and requirements for arrests and detentions provided by the Supreme Court.
There are 11 guidelines which are an addition to constitutional and statutory safeguards and do not contradict any of them.
The memorandum focuses on maintaining proper and authenticated records from the side of the authority known as ‘inspection memo’.
It also throws a repetitive glance upon all the other rights guaranteed to a person in custody and mentions all authorities who are bound to adhere to those.
The decisions emanating from this case also led to the incorporation of Section 50A of CrPC which imposes a legal obligation on the Police to give information regarding such arrest and place where the arrested person is being held to any of his friends, relatives or such other persons as may be nominated by the arrested person for the purpose of giving such information.
Rights of an arrested person in India
The arrest of a person can be a violation of Article 21 of the Constitution that states, “no person shall be deprived of his right to life and personal liberty except a procedure established by law”. It means that the procedure must be fair, clear and not arbitrarily or oppressive.
The Constitution under Article 14 guarantees the right to equality before the law. The Code of Criminal Procedure also provides that for a trial to be fair, it must be an open court trial. This provision is designed to ensure that convictions are not obtained in secret. In some exceptional cases the trial may be held in camera.
The Constitution provides an accused the right to a speedy trial. Although this right is not explicitly stated in the constitution, it has been interpreted by the Hon'ble Supreme Court of India in the judgment of Hussainara Khatoon.
Article 22(1) of the Constitution provides that no person who is arrested shall be denied the right to consult a legal practitioner of his choice.
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”.