Representation of Clients Before Administrative Agencies
An administrative agency can be defined as a regulatory body that, is established by government or quasi-government bodies to form, monitor, and enforce laws and rules within their jurisdiction.
- In a regulatory or supervisory role, an administrative agency is a public entity or body answerable for exercising autonomous control over specific areas of human activity.
- The purpose of these agencies is to ensure that safety and norms are adhered to.
- Generally, an administrative agency results from legislation, which means an administrative agency is established from an act made in the parliament.
- These agencies perform other tasks as well such as investigation, prosecution, gathering pieces of evidence, etc. Investigations by these administrative agencies play a very important part in maintaining the integrity of laws, rules, and regulations.
Types of Administrative Agencies
- There are many types of regulating bodies, such as financial regulating bodies, for example Reserve Bank of India (RBI), Board of Revenue, and the Securities and Exchange Board of India (SEBI). There are also regulating bodies relayed to the industries such as the Food Safety and Standards Authority of India (FSSAI). There are regulating bodies related to crime and criminal laws, some of these administrative agencies are:
- Police
- Directorate of Enforcement
- Central Bureau of Investigation
- Narcotics Control Bureau
- Anti-corruption Bureau
Some of the main Functions of the Administrative Agencies are
- Commencement of Investigation: The investigations conducted by administrative authorities may be initiated in numerous ways, including as a response to complaints, informers, or regular monitoring. Also in some cases, an administrative agency may choose to investigate proactively based on emerging risks or trends.
- Gathering of Evidence: After an investigation is launched, the administrative agency begins gathering evidence. Gathering pieces of evidence often involves demanding documents, and records, meeting witnesses, conducting interviews, and analyzing contracts, and relevant data. Different administrative agencies are granted specific investigative powers through different acts passed by the legislation. These powers also include the ability to compel witnesses to provide evidence, access to premises, and the authority to seize documents. The investigator of the administrative agency may also interview people connected to the matter under scrutiny and these interviews are usually conducted under caution and can be used as evidence in subsequent legal proceedings.
- Imposition and Regulation: The administrative agency sometimes in some cases can sometimes also impose interim measures during the process of conducting an investigation. These measures are imposed to protect public interests and prevent further harm. After an investigation, the administrative agency should compile its findings. These findings may check compliance with regulations, identify areas of upgrading, or uncover violations and misconduct.
- Enforcement Actions and Prosecution: The administrative agency may, depending on the severity of the findings, take various enforcement actions, which may range from issuing warnings and fines to suspending licenses, revoking registrations, or initiating legal proceedings may be taken. In cases of grave misconduct or violations, these bodies may refer the matter to the prosecution in the competent Court. In cases of crimes, they have the power to arrest the accused. Some regulators have the power to bring their criminal prosecutions.
Police
- The functioning of the police in India is multifaceted, involving law enforcement, crime prevention, and maintaining public order.
- The Indian police system operates under a hierarchical structure, with the Ministry of Home Affairs at the central level overseeing various state police forces.
- Each state and union territory has its own police force headed by a Director General of Police (DGP).
- Police duties include investigating crimes, apprehending offenders, and implementing traffic regulations.
- Additionally, they are responsible for disaster response, handling public protests, and ensuring the safety and security of citizens.
- The police work under various laws and regulations, including the Indian Penal Code/Bharatiya Nyaya Sanhita, the Code of Criminal Procedure/Bharatiya Nagarik Suraksha Sanhita, and specific state laws.
The Procedure
- Registration of FIR (First Information Report): The police register an FIR when a cognizable offense is reported to them. This is the first step in the criminal investigation process.
- Investigation: The police investigate the offense by collecting evidence, interrogating the accused and witnesses, and conducting scientific analysis if necessary.
- Arrest of the Accused: The police can arrest the accused without a warrant if the offense is cognizable. The accused can be kept in police custody or sent to judicial custody pending further investigation.
- Completion of Investigation: The police complete their investigation and prepare a report, which is called a 'charge sheet' or 'challan'.
- Filing of Charge Sheet: The police file the charge sheet with the Magistrate, which includes the details of the offense, evidence collected, and the accused's statement.
Directorate of Enforcement
- The Directorate of Enforcement (ED) is a specialized financial investigation agency under the Department of Revenue, Ministry of Finance, Government of India.
- Its primary functions include enforcing the Foreign Exchange Management Act, 1999 (FEMA) and the Prevention of Money Laundering Act, 2002 (PMLA). After determining that the funds have been laundered, the ED searches properties and seizes money and documents by Sections 16 (power of survey) and 17 (search and seizure) of the PMLA. Based on that, the authorities use the power of arrest given under section 19 to determine whether an arrest is necessary.
- Section 50 of the PMLA says that the ED can directly carry out search and seizure without calling the person for interrogation. It is also not necessary to summon the person first and then start with the search and seizure.
- If a person is arrested by the ED under the PMLA, the ED has 60 days to file the charge sheet or the prosecution complaint. The prosecution complaint and attachment order must be presented to the adjudicating authority within sixty days if no one is detained and only the property is attached.
- The agency's key responsibilities involve investigating cases of foreign exchange violations, money laundering, and economic crimes, as well as ensuring compliance with the relevant legal frameworks.
- The ED is empowered to attach assets, conduct searches and seizures, arrest individuals, and prosecute offenders involved in financial irregularities.
- By coordinating with other national and international law enforcement agencies, the Directorate of Enforcement aims to combat economic crimes and maintain the integrity of the financial system.
Procedure
- Procedure for Arrest under PMLA: The ED can arrest a person if they have reason to believe that the person is guilty of an offense punishable under the PMLA. The arresting officer must have the material based on which they believe someone is guilty and record their reasons for arrest in writing. The arrested person must be informed of the reason for arrest.
- Procedure for Search and Seizure: Under Section 17 of the PMLA and Section 8 of the FEOA, the Authorised Officer has the power to enter and search any building, place, vessel, vehicle, or aircraft where they suspect records or proceeds of crime are kept. The officer can seize any record or property found during the search and place marks of identification on such records or properties if required or make or cause to be made extracts or copies therefrom.
- Procedure for Investigation: The ED conducts investigations to trace assets derived from proceeds of crime, provisionally attach property, and ensure prosecution of offenders and confiscation of property by the Special Court. The ED uses Section 16 of the PMLA to examine property and seize money and documents.
- Procedure for Adjudication: The adjudicating authority is responsible for adjudicating and imposing penalties on those adjudged to have contravened the law under FEMA.
- Procedure for Attachment of Properties: The ED can attach the properties of fugitive economic offenders under the FEOA. The ED ensures confiscation of properties to the Central Government under the PMLA and FEOA.
- Procedure for Enforcement: The ED enforces the provisions of the PMLA, FEMA, and FEOA through investigations, adjudications, and attachments. The ED ensures prosecution of offenders and confiscation of property by the Special Court under the PMLA.
Central Bureau of Investigation
- The Central Bureau of Investigation (CBI) is India's premier investigating agency, functioning under the jurisdiction of the Ministry of Personnel, Public Grievances and Pensions.
- Its primary role is to investigate and prosecute cases related to corruption, economic crimes, and other high-profile criminal cases.
- The CBI is known for handling complex cases that have national or international implications, including crimes such as fraud, bribery, and significant violations of fiscal laws.
- It also assists state police forces and other law enforcement agencies in tackling inter-state and transnational crime.
- The CBI's operational framework involves meticulous investigation procedures, evidence collection, and coordination with other intelligence and law enforcement bodies.
The Procedure
- The Central Bureau of Investigation (CBI) follows a structured process for investigating cases. The first step is to analyzing the allegations reported in the FIR, and identifying the points of the investigation including details such as inspecting the spot of the crime, witnesses to be examined, documents to be seized, technical expertise required, expert opinions to be obtained, searches to be conducted, and in case of cross border crimes, Interpol references required, and investigations outside India.
- If the case involves accused persons who have escaped the country, part of the crime was committed abroad, or witnesses and evidence are available in a foreign country, the CBI may conduct investigations abroad, which involves sending formal letters of request to the competent court under the provisions of Section 166-A of the CrPC/Section 112 (1) of the BNSS, and using Interpol and diplomatic channels for informal information collection.
- After a complaint is received and verified by the CBI, a preliminary enquiry is conducted to determine if there is sufficient evidence to proceed with a full-scale investigation. If the preliminary enquiry indicates sufficient evidence, the CBI conducts a full-scale investigation, which includes gathering evidence, examining witnesses, and analyzing documents.
- Once the investigation is complete, the CBI files a chargesheet in court, and the case proceeds through the legal system. The CBI coordinates with state police forces to ensure effective investigation and prosecution of cases, and maintains crime statistics and disseminates criminal information to support law enforcement efforts.
Narcotics Control Bureau
- The Narcotics Control Bureau (NCB) is India's premier agency responsible for combating drug trafficking and the use of illegal substances.
- Established in 1986 under the Narcotic Drugs and Psychotropic Substances Act, the NCB operates under the Ministry of Home Affairs.
- Its key functions include enforcing the country's drug laws, coordinating with other international and domestic enforcement agencies, and monitoring and analyzing drug trafficking trends.
- The NCB conducts raids, seizes illegal substances, and apprehends traffickers. It also undertakes public awareness campaigns to educate citizens about the dangers of drug abuse.
The Procedure
- Conducting Raids, Search, and Seizures Operations
- Proper documentation of the search, seizure, and sampling procedures is crucial.
- Seizing narcotic drugs, psychotropic substances, precursor chemicals, and related materials.
- Conducting spot tests to identify the seized substances.
- Collecting samples and sending them for chemical analysis.
- Arrest of the Accused
- Preparing the accused's dossier.
- Taking the accused in custody and getting their medical examination done.
- Investigation
- Open source intelligence gathering.
- Financial investigation and forfeiture of illegally acquired property.
- Collection and handling of digital evidence.
- Investigation of cases involving dark web, cryptocurrency, pharmaceutical drugs, and precursor chemicals.
- Supervision of the investigation.
- Filing of Charge-sheet
- Filing the charge-sheet within the prescribed timelines (60 days for small quantity, 90 days for commercial quantity).
- Presenting the certified inventory, digital evidence if any, and samples as primary evidence making them part of the charge-sheet.
- Disposal of Seized Materials
- The seized materials are reviewed by a Drug Disposal Committee.
- The Committee physically examines and verifies the seized items, and orders their disposal.
Anti-Corruption Bureau
- The Anti-Corruption Bureau (ACB) in India is a specialized government agency tasked with investigating and preventing corruption among public officials and government employees.
- Established under various state legislations, the ACB operates independently to maintain transparency and integrity in public administration.
- It conducts inquiries, surveillance, and raids based on complaints and intelligence reports about corrupt practices.
- The bureau has the authority to register cases, collect evidence, and prosecute offenders under the Prevention of Corruption Act and other relevant laws.
The Procedure
- The process begins with the receipt of complaints of corruption from various sources, including citizens and other government agencies. The ACB then verifies the information provided in the complaint to ensure its genuineness and to identify the public servant involved. Following this, the ACB conducts a thorough investigation, which includes gathering evidence through interviews, document collection, and other means, reviewing assets and premises of the organization, seizing articles and documents, questioning witnesses, and recording testimonies.
- If the evidence is insufficient for a criminal prosecution but sufficient for a departmental enquiry, the ACB sends the case for departmental action.
- If the evidence is sufficient for a criminal prosecution, the ACB files a case in court and conducts the trial. The trial involves presenting evidence in court to prove the charges against the accused public servant. If the accused is found guilty, the court imposes punishment, which can include imprisonment, fines, restitution orders, or other penalties.
- The ACB maintains the confidentiality of informants and does not provide cash rewards for information. Additionally, the ACB encourages public awareness and participation in reporting corruption through various means, including an official app for registering complaints.
- The Director General of the Anti-Corruption Bureau exercises supervision over the ACB to ensure that the process is carried out effectively and efficiently.
Representation of a Client
- An advocate must follow professional conduct, which aims to safeguard the client's dignity and ensure that no discrimination is being done.
- A lawyer is morally bound to represent their client's best interests, and this would be impossible if they were also representing the client of the opposing party.
- The BCI under Chapter II ("Standards of Professional Conduct and Etiquette"), Part VI ("Standards of Professional Conduct and Etiquette") of the BCI Rules mentions that the Advocate cannot represent both parties simultaneously, this is known as a conflict of interests.
- In addition to the BCI Rules, provisions of the Advocates Act, 1961 prohibits a lawyer from representing both parties in a court case.
- The Supreme Court of India in various judgments has said that the right of a client to be represented through a lawyer is an integral part of the due process clause of the Indian Constitution.
- In various cases, it has been observed that the right of being represented through counsel is part of due process and is referable to the right guaranteed under Article 21 of the Constitution of India.
An Accused must be Aware of
- Right to a Fair Trial: The right to a fair trial guarantees the public that the proceedings will be impartial and unambiguous, and it forbids the government from misusing its authority. International recognition of the right to a fair trial as a fundamental human right mandates that nations uphold it. A fair trial means a trial before an unbiased judge, a fair prosecutor, and an atmosphere of judicial calm. Fair trial means a trial in which unfairness or partiality for or against the accused, the witness, or the cause that is being tried, is eliminated.
- Presumption of Innocence: The accused is always presumed innocent at the outset of a criminal trial. The prosecution has to bear the burden of establishing the accused's guilt, and the courts are unable to record a finding of guilt until the prosecution releases itself from this obligation. This presumption is from the Latin legal principle ei incumbit probatio qui dicit, non qui negat, which means, the burden of proof rests on who asserts, not on who denies. It is pertinent to mention here that there are several laws of presumption i.e. POCSO, cases of Rape, outraged the modesty of a woman, dowry death, cases of Negotiable Instrument Act (cheque bounce) etc, where the presumption of innocence is not applicable and accused have to disprove the burden.
- Awareness of Double Jeopardy: It means that if a person is convicted once he cannot be convicted again for the same offence. This clause is embodied from the common law rule of nemo debet vis vexari which means that no man should be put twice in peril for the same offence.
- Proceeding in the Presence of the Accused: To ensure a fair trial, all case-related proceedings must be conducted with the accused or his legal counsel's presence. According to Section 273 of the CrPC/Section 308 of the BNSS, the accused must be present for the taking of all evidence during the trial. If the accused is not required to be present in person, the evidence must be taken in front of his pleader.
- Knowledge of Statements: It is the duty of the advocate to aware the accused about the statement that he has to make during the course of investigation and interrogation. The accused must not make any self-harming statements.
- Article 20(3) provides that no person accused of any offense or crime shall be compelled to be a witness against himself. This clause is based on the maxim nemo tenetur prodere accusare seipsum, which means that 'no man is bound to accuse himself.
Rights of an Accused
- Right to Legal Representation: Every accused has a right to be represented by a lawyer or a counsel. A person is entitled to legal advice both before to during interrogation by administrative agencies. This is an essential right that contributes to the protection of a person's legal interests.
- The Right to Be Informed: Every accused person has the right to be informed by the authorities about the charges framed against him. Every arrested person in India has the right to be informed about the grounds and charges of their arrest, as per Section 50 of the CrPC/Section 47 of the BNSS. This section ensures that the accused are aware of the charges against them, allowing them to understand the reasons for their arrest.
- The Right to Remain Silent: Every accused has a right to remain silent. This right is based on the principle that no person can be compelled to be a witness against themselves, as per Article 20(3) of the Indian Constitution. Section 161(2) CrPC/Section 180(2) BNSS says that when an officer examines a person, who is acquainted with the facts and circumstances of the case, such a person shall answer the questions truthfully other than the questions which tend to expose him to criminal charges. Other provisions and several judgments also clarify this.
- The Right to Humane Treatment: Every person who is arrested has a right to be treated with respect and dignity during detention. This ensures that people, including the accused, are not subjected to any form of mental or physical abuse while in custody, upholding the basic human rights of the accused.
- The Right to Speedy Trial: The right to a speedy trial is fundamental to safeguarding a fair and just legal process. Article 21 of the Indian Constitution guarantees the right to life and personal liberty, which includes the right to a speedy trial, and ensures that the delay in legal proceedings does not unduly prejudice the accused.
- Right to be Produced Before a Magistrate: Under Section 57 of the CrPC/Section 58 of BNSS, an arrested individual must be produced before a magistrate within 24 hours of arrest, excluding the time necessary for the journey from the place of arrest to the magistrate’s court.
How Can We Help You?
- We represent our clients before the administrative agencies with all the knowledge and guidance they need while the interrogation to safeguard their rights and prepare a defense in their case.
- We make our clients informed with the constitutional and fundamental rights if they are presented before any of the administrative agency so they can make their stand well off before the investigating officer.
- We guide our clients with the probable defense and take of their integrity and dignity with all the legal remedies available in the law for the protection of an accused before any administrative agency.
- We make sure for the knowledge of statements and information provided by the accused clients before the administrative agencies that it must not be against the accused.
- We make assure for no harassment or no torture to be faced in the custody period with the administrative agencies by assuring the presence before the court at the right time and compliances of provisions of law while in the custody.
- We make our clients aware of the charges slapped against them and the procedure of investigation to be taken up and the conditions they have to face, and work in preparing initial defense for early reliefs.
Conclusion
After all, it is the lawyer or the advocate who can help the person to get justice, hence it is very important that a client is represented very carefully to the administrative authorities and their right is protected. To know more, contact us.