2023 (5) TMI 1158 - HC - Money Laundering

Presence of Advocate during Enquiry/interrogation as a matter of right - petitioner submits that as of now the investigation has been completed and the prosecution complaint has also been filed - HELD THAT - In view of the fact that the investigation has already completed and the respondent has chosen not to come forward to contest the same. There is no impediment in confirming the order in DIRECTORATE OF ENFORCEMENT VERSUS SATYENDAR KUMAR JAIN 2022 (6) TMI 382 - DELHI HIGH COURT granting permission that during the time of enquiry/interrogation from the accused, one Advocate of the accused shall be allowed to remain present at a safe distance where from where he can see the accused but not hear him . The petition is allowed in terms of order in DIRECTORATE OF ENFORCEMENT VERSUS SATYENDAR KUMAR JAIN 2022 (6) TMI 382 - DELHI HIGH COURT .

Summary

Issues involved:
The core issue raised in the matter is whether the respondent has the right to have his lawyer present at a safe distance during the recording of his statements under Section 50 of PMLA.

Judgment Details:
The petitioner challenged the direction in the order passed by the Ld. Addl. Sessions Judge/Special Judge regarding the presence of the lawyer during interrogation. The Court noted the argument that the respondent should have the right to have his lawyer present during the recording of statements. Various judgments were cited by both parties.

In the case of Poolpandi and Others vs. Superintendent, the Court emphasized that the purpose of the enquiry under the Customs Act would be frustrated if the whims of the persons being questioned were allowed to prevail. The Court held that there is no constitutional right to claim the presence of a lawyer during such proceedings.

In Sudhir Gulati vs. Union of India, the Division Bench held that the petitioner could not be compelled to be a witness against himself, but the scope of the offence and enquiry under the Customs Act were different, and the petitioner was not entitled to the assistance of a lawyer during the recording of his statement.

The Court also referred to Ramesh Chandra Mehta vs. State of West Bengal, which discussed the principles when a person stands in the character of an accused.

The respondent's counsel referred to various cases supporting the presence of a lawyer during such proceedings, but the Court found that since there was no FIR or complaint against the respondent, he could not claim the presence of his lawyers as a matter of right.

The Court concluded that the impugned direction allowing the presence of the advocate at a visible but not audible distance during the recording of the statement was not justified in this case. The petition was allowed, and the order dated 03.06.2022 was confirmed.

In summary, the Court upheld the petitioner's challenge to the direction regarding the presence of the lawyer during interrogation, emphasizing the lack of a right to have a lawyer present during the recording of statements in the absence of a FIR or complaint against the respondent.