Advocates Can’t Be Equated To Witnesses: Delhi High Court Stays Notice Asking Advocate To Appear At CBI Office

The High Court was considering a petition filed by an advocate seeking the quashing of the impugned notice issued under Sections 94 and 179 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

The Single Bench of Justice Swarana Kanta Sharma held, “The role of an advocate in representing a client, communicating with the investigating agency on behalf of the client, and facilitating lawful cooperation with the investigation cannot be equated with that of a witness or any other person liable to be examined during investigation. If advocates are subjected to summons for recording of statements merely because they have addressed communications or forwarded documents to the I.O. in discharge of their professional duties, it would seriously prejudice the working of the advocates and the advocates sending communications on behalf of their clients.”

Senior Advocate Mohit Mathur represented the Petitioner while SPP Ripudaman Bharadwaj represented the Respondent.

Factual Background

As per the petitioner, the Central Bureau of Investigation (CBI) had registered an FIR against a company and its directors, alleging misuse of SIM cards for cyber-criminal activities, some of which were allegedly issued by the said company. One of the directors of the accused company had approached the petitioner, who is an Advocate, seeking legal assistance in connection with the said FIR. The petitioner claimed that in an effort to cooperate with the ongoing investigation, the accused company had deputed one of its staff members to the CBI office to submit certain documents. However, the Investigating Officer (I.O.) had allegedly refused to receive the documents and subjected the said staff member to harassment.

Thereafter, the present petitioner, acting in his professional capacity of being an Advocate engaged on behalf of his client, sent emails to the respondent I.O. of the case enclosing some relevant documents pertaining to the investigation which had been sought from the accused. The petitioner filed an application on behalf of one of the directors of the accused company, and the said director was granted interim protection on the same date. Soon thereafter, the IO issued the impugned notice to the petitioner, who is an advocate of the accused against whom the present FIR was registered, directing him to appear at the CBI office along with the certified copies of the documents that had already been forwarded through email.

Reasoning

On a perusal of the emails sent by the petitioner to the respondent IO, the Bench noted that it was clearly mentioned by the petitioner that he was communicating on behalf of his “client” and was forwarding documents on behalf of his client for the purpose of facilitating the investigation. At the end of the email, the name and details of the petitioner-advocate and his law office were also mentioned.

The Bench was of the view that the issuance of the impugned notice to the petitioner was in teeth of, and contrary to the principles laid down by the Supreme Court in case of Summoning Advocates who give legal opinion or represent parties during investigation of cases and related issues (2025) wherein it has been held that the Investigating Officers in a criminal case or a Station House Officer conducting a preliminary inquiry in a cognizable offence shall not issue a summons to an Advocate who represents the accused to know the details of the case, unless it is covered under any of the exceptions under Section 132. It has also been held therein that when a summons isissued to an Advocate, under any of the exceptions, it shall explicitly specify the facts on which the exception is sought to be relied upon, which shall also be with the consent of the superior Officer not below the rank of a Superintendent of Police who shall record his satisfaction as to the exception in writing, before the summons is issued.

Coming to the facts of the case, the Bench noted that the IO was aware that the petitioner was an Advocate of the accused company, and the emails or documents were not sent to anyone else but to the I.O. only for the purpose of facilitating the investigation on instructions from the client and not in his individual capacity. “Therefore, the aforesaid directions, prima facie, proceeds on treating the petitioner as a witness in the investigation, merely because as the advocate of the accused, on the instructions of his accused client, he had sent the documents sought by the I.O. to facilitate investigation, notwithstanding the admitted position that his involvement with the matter arises solely from his professional engagement as an advocate for the accused company”, it added.

As per the Bench, the relationship between an advocate and his client is such that the client discloses facts of the case to him, so that he can defend him, and this cannot make every lawyer a witness in all the cases handled by him/her. “Permitting such a course, as adopted in the present case, would have far-reaching consequences, and if allowed, such a practice would adversely affect the independence of the legal profession…”, the Bench held while allowing the application for stay and staying the impugned notice during the pendency of the petition.

Cause Title: Sachin Bajpai v. Union Of India (Neutral Citation: 2025:DHC:11699)

Appearance

Petitioner: Senior Advocates Mohit Mathur, Sandeep Sharma, Advocates Gaurav Bharadwaj, Nitesh Mehra, Ashish Sareen, Anurag Mishra, K.K. Mishra, Kumar Kshitij, Gautam Singh, Ayush Yadav, Ratnesh Mathur, Adarsh Singh, Divakar Kapil

Respondent: SPP Ripudaman Bharadwaj, Advocates Kushagra Kumar, Amit Kumar Rana,

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