MODI, J. - (1.) THIS is a reference by the learned Sessions Judge, Jodhpur, and raises an important point as to the right of a counsel for an accused who is in police custody to interview the accused out of the hearing of the police though in their presence.
(2.) THE facts leading up to this reference may shortly be stated as follows: Mt. Moti Bai was arrested by the police on 15.6.1954, as she was suspected of being involved in an offence under Section 6, Indian Wireless Telegraphy Act and under Section 489 (A), Penal Code. While she was in police custody, learned counsel for the accused wanted to interview her. It appears that this interview was not granted although he was able to obtain one at the house of the Second Additional Extra Magistrate, First Class, Jodhpur City, when the accused was taken to him for a remand under Section 167, Criminal Procedure Code Learned counsel had earlier submitted an application on 16.6.1954, to the said Magistrate in which he had complained of his having not been allowed to interview the accused and sought for such permission. It appears that the accused's counsel further wanted to interview the accused on the 17th and he made a request to the Station House Officer, Division B, in the first instance, and thereafter, when he was not able to obtain the requisite permission from that officer, to the Deputy Superintendent of Police. The latter was apparently of the opinion that an interview could be allowed to the counsel but such interview would be in the presence and within the hearing of the police. Aggrieved by this state of affairs, an application was presented by Sri Mahaveer Singh, learned counsel for the accused, to the Second Additional Magistrate, First Class, praying that the police be directed to allow him interview with the accused out of the hearing of the police though in their presence. The learned Magistrate ordered the application to be put up on the next day i.e., 18.6.1954. The learned Magistrate in his explanation has pointed out that this application was submitted to him after the Court hours, and this position does not appear to be contested. Eventually the learned Magistrate filed the application as learned counsel did not put in appearance before him on the 18th June. Thereafter a revision was taken to the learned Sessions Judge who has made the present reference.
(3.) IT is submitted by the learned Deputy Government Advocate that the accused had since been transferred to judicial custody and, there fore, the present reference has in a way become infructuous, and no directions need to be given to the police allowing counsel for the accused to interview her any longer. On the other hand, it is contended by learned counsel for the accused that even though the accused had since been remanded to judicial custody, the question raised by him is one of considerable importance and as important rights of the accused in relation to their interviews with their legal advisers are involved, the question may be considered, and the correct law laid down on the point. This contention of learned counsel seems reasonable. A few outstanding provisions of law deserve to be borne in mind in this connection. First and foremost I may refer to Article 22 (1) of the Constitution of India, which reads as follows : "No person who is arrested shall be detained in custody without being informed, as soon as may be, of the ground for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice." This is a fundamental right which the authors of the Constitution in their wisdom have guaranteed to every person who may be arrested and detained in custody. The requirement is that no such person shall be detained without being in formed at the earliest possible opportunity of the ground for his arrest and that such person shall have a right to consult and to be defended by a legal practitioner of his own choice.In order that this right "to consult a legal practitioner of one's choice" can properly and reasonably be given effect to, it must follow that such legal practitioner must be allowed the facility to consult the accused whom he seeks to defend, and I may further point out that if such consultation is to be useful, it must be allowed without the hearing of the police though in their presence. The presence of the police is obviously needed so that the accused may not abscond from custody or do anything which may be objectionable other wise. It deserves to be noticed in this connection that the right of the accused enshrined in this Article begins right from the day of his arrest. The position, therefore, at this date is crystal clear that learned counsel for Motibai was within his rights to consult her ever since she was put under arrest and that the police were not right in not allowing such consultation as seems to have been their attitude throughout.;