Context: Recently, the National Investigation Agency (NIA) told a special court in Mumbai that the arrested assistant police inspector Sachin Waze was insisting on his lawyer being present during interrogation.

Rights of an accused related to access to lawyer

• 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.
• The “Miranda rights” or “Miranda warning” require a police officer to inform a suspect being arrested that he has the right to talk to a lawyer for advice before being questioned, and the right to have a lawyer with him during questioning.

In India, the safeguards available to a person in such circumstances are enshrined in the Constitution.

• Article 20 (3) states that no person accused of any offence shall be compelled to be a witness against himself.
• Article- 22(1): No police officer can arrest any individual without informing the accused of the reason/ ground of his detainment/ arrest.
• Article 22 states that a person cannot be denied the right to consult and to be defended by a legal practitioner of his choice. 
• It includes provisions that grant an accused the “right to consult” a lawyer.
• The section 41-D 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”.

What does the law say on lawyers’ access during interrogation?

• Unlike in some countries, the lawyers in India are not allowed to be with an accused throughout their investigation.
• The courts also rely on the Supreme Court judgment in the D K Basu case of 1997, considered the guiding principles to be followed by investigating agencies in cases of arrest or detention.
• The judgment states that “an arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation”.
• The Supreme Court stressed that the safeguards for accused, but also spoke of “difficulties in detection of crimes”, especially in cases of “hardcore criminals”.
• It ruled that a lawyer cannot be permitted to remain present throughout the interrogation.

Police v/s Judicial custody

• Whenever a person is arrested by police or investigating agency and detained in custody and if the investigation cannot be completed in 24 hours, the person is mandated to be produced before a magistrate court.
• The section 167 of CrPC and subsequent provisions lay down procedures that may follow in various scenarios.
• The magistrate may further remand the person to custody of police for a period not more than 15 days as a whole.
• The police custody means that the person is confined at a lock up or remains in the custody of the officer.
• After lapse of 15 days or the police custody period granted by the magistrate, the person may be further remanded to judicial custody.
• The judicial custody means that the person is detained under the purview of the judicial magistrate is lodged in central or state prison.
• In judicial custody, the person can apply for a bail as per the CrPC chapter 33 pertaining to the bails and bonds.
• The judicial custody can extend up to 60 or 90 days as a whole, depending upon the maximum punishment prescribed for the offence.
• An undertrial person cannot remain in judicial custody beyond half the time period of prescribed maximum punishment.

Difference between Judicial and Police Custodies

• In police custody, the investigating authority can interrogate a person while in judicial custody, officials need permission of the court for questioning.
• In police custody, the person has the right to legal counsel, right to be informed of the grounds which the police have to ensure.
• In the judicial custody in jails, while the person under responsibility of the magistrate, the Prison Manual comes into picture for routine conduct of the person.