1984 Supreme(Del) 45

High Court Of Delhi
K.T.ADVANI, NEW DELHI - Appellant
Versus
STATE, NEW DELHI - Respondent
CRI.MISC. 205 of 1983
Decided On : 02/13/1984

The petitioners were entitled to the presence of counsel in the course of investigation, but they could not be compelled to write a statement in their own hand. Grover could not be compelled to produce his passport except by the authorities under the Passport Act or the Court which admitted him to bail. The petitioners were bound to produce documents summoned from them if they were relevant to the investigation. The petitioners were bound to answer truly all questions commanded of them in relation to matters under investigation and were not entitled to the benefit of the rule against self-incrimination.

Headnote:

FOREIGN EXCHANGE REGULATION ACT - RIGHT TO COUNSEL - PRESENCE OF COUNSEL - RIGHT TO SILENCE - RULE AGAINST SELF-INCRIMINATION - COMPULSION TO MAKE A WRITTEN STATEMENT - PRODUCTION OF DOCUMENTS - RIGHT TO COPIES OF STATEMENTS - PRODUCTION OF PASSPORT - SUMMARY

Fact of the Case:

The petitioners were granted anticipatory bail by the learned Addl. Sessions Judge, after he was satisfied that, according to the authorities under the Foreign Exchange Regulation Act, their dealings and conduct involving contravention of certain provisions of the Foreign Exchange Regulations Act were under investigation. Both the petitioners were directed to present themselves for interrogation before the concerned authority. Some of their records had also been earlier seized by the authorities. Both of them participated in the course of the aforesaid proceedings and either made oral statements to the officers entrusted with the proceedings or gave a written statement purporting to answer questions put to them in the course of interrogation.

Finding of the Court:

The court held that the petitioners were entitled to the presence of counsel in the course of investigation, but they could not be compelled to write a statement in their own hand. The court also held that Grover could not be compelled to produce his passport except by the authorities under the Passport Act or the Court which admitted him to bail. The court further held that the petitioners were bound to produce documents summoned from them if they were relevant to the investigation. The court also held that the petitioners were bound to answer truly all questions commanded of them in relation to matters under investigation and were not entitled to the benefit of the rule against self-incrimination.

Issues: 1. Whether the petitioners were entitled to the presence of counsel in the course of investigation? 2. Whether the petitioners could be compelled to write a statement in their own hand? 3. Whether Grover could be compelled to produce his passport? 4. Whether the petitioners were bound to produce documents summoned from them? 5. Whether the petitioners were bound to answer truly all questions commanded of them in relation to matters under investigation?

Ratio Decidendi: 1. The court held that the petitioners were entitled to the presence of counsel in the course of investigation based on the following grounds: a) Article 22(1) of the Constitution guarantees the right to consult counsel. b) The spirit and sense of Article 22(1) is that it is fundamental to the rule of law that the service of a lawyer shall be available for consultation to any accused person under circumstances of near custodial interrogation. c) The expression "accused" was apparently used in the judgment in the case of Nandini Satpathy (1978 Cri LJ 968) (SC) (supra) in the sense of a suspect because the expression "accused" does not occur in Art. 22, and there are a number of situations in which a person may be arrested, without being formally accused, and S. 35 of the Foreign Exchange Regulation Act is one of them. d) If a suspect is entitled to presence of counsel in an investigation, governed by the Code of Criminal Procedure there is nothing in the provisions of the Foreign Exchange Regulation Act, which purport, explicitly or impliedly, to oust such a right. e) If the right to the presence of counsel be fundamental to the rule of law, it makes little difference if the investigation is one under the Code of Criminal Procedure or independently of it. 2. The court held that the petitioners could not be compelled to write a statement in their own hand based on the following grounds: a) There is nothing in S. 40 of the Foreign Exchange Regulations Act which may bind a person summoned under sub-section (3) of that section to make a statement in writing. b) The person can be required to produce a document but there is no power to require him to compile a document. c) The provision contains no words of compulsion in that behalf. 3. The court held that Grover could not be compelled to produce his passport except by the authorities under the Passport Act or the Court which admitted him to bail based on the following grounds: a) Passport is no doubt not the property of the passport-holder. b) The procedure for its seizure, production, as indeed impounding, etc. is laid down in that Act. c) Officers exercising power under the Foreign Exchange Regulation Act do not have any power under that Act. d) They are no doubt entitled to seize that passport if such a seizure would be otherwise justified or to take it into possession when a suspect is arrested, on his personal search. e) The officers are also entitled to require the suspect to produce any document but such documents must have relevance to the matter under investigation. f) If any entry in the passport or the passport itself is relevant for the purpose of investigation or proceedings under the Act, the officers conducting the investigation or the proceedings would certainly be entitled to require the suspect to produce the passport. g) But the mere anxiety of the authorities that the suspect should not be able to leave the country would not entitle them to require the suspect to produce the passport under S. 40 of the Act, even though the appropriate authorities under the Passport Act, as indeed, the Court which grants bail to the suspect, would be entitled to make appropriate orders in relation to it in accordance with law. 4. The court held that the petitioners were bound to produce documents summoned from them if they were relevant to the investigation based on the following grounds: a) If the constitutional protection against testimonial compulsion is not available until a formal accusation and a person is bound to state the truth when summoned u/s 40, there is no escape from the further conclusion that he is bound to comply with a summons to produce documents, so long as the documents be "useful" for or "relevant" to the investigation or the proceedings, and this duty is not in any way affected merely because of the likelihood that such documents may eventually be used at the trial for any offence under the Act. b) In terms of sub-section (3) of Section 40, when required the suspect is bound to produce the documents, so long as the documents satisfy the requirement of being relevant to the matter under investigation. 5. The court held that the petitioners were bound to answer truly all questions commanded of them in relation to matters under investigation and were not entitled to the benefit of the rule against self-incrimination based on the following grounds: a) The expression "state the truth", in sub-section (3) of S. 40 is a composite one binding the person not only to be truthful but also to make a statement and the expression appears to be pari materia with the corresponding expression "answer truly", used in sub-s. (2) of S. 161. b) To hold to the contrary would frustrate the object of the provision itself and would defeat the purpose for which the sub-section was intended. c) That the duty to state the truth would also imply the duty to answer any question demanded of a person is amply supported by the phraseology of S. 179 of the Penal Code, irrespective of whether it would be attracted or not, if there is a refusal to answer a question, and this is a question which has not arisen in the present cases.

Final Decision: Cr. M (M) 205/83 succeeds. Cr. M (M) 1054/83 succeeds in part. Petitioners are entitled to the presence of counsel in the course of investigation. Petitioners cannot be compelled to write statement in their own hand. Grover cannot be compelled to produce the passport except by the authorities under the Passport Act or the Court which admitted him to bail. He can be directed to produce the passport by the authorities under the Foreign Exchange Regulations Act only if the production of the passport is considered by them to be useful and relevant to the investigation. Cr. M (M) 251/83 Cr. M. 504/83 and Cr. M 2129/83 fail and are hereby dismissed. Petitioners are not entitled to copies of their statements at this stage even though they are entitled to take their notes by themselves or through counsel when they make the statements and may refer to the earlier statements, if required to make supplementary statements. Cr. M. 2056/83 fails and is also dismissed. Petitioners are bound to produce documents summoned from them if they are relevant to the investigation, Cr. M. 622/83 is dismissed as infructuous as the amount of surety has already been reduced and the order is made absolute. Cr. M. 2113/83 is dismissed as infructuous. Petitioners are hound to answer truly all questions commanded, of them in relation to matters under investigation and are not entitled to the benefit of rule against self-incrimination. The authorities are, however, under an implied duty to warn the petitioner before examination that if they made a statement, it could be used against them. The impugned orders of the learned Additional Sessions Judge are modified accordingly.