Supreme Court: IOs Shall Not Issue Summons To Advocates Who Represent Accused To Know Case Details, Unless Covered U/S 132 BSA Exceptions

The Supreme Court has directed that the Investigating Officers (IOs) shall not issue summons to Advocates who represent the accused to know the details of the case, unless it is covered under any of the exceptions under Section 132 of the Bhartiya Sakshya Adhiniyam, 2023 (BSA).

The Court was deciding a suo-motu case arising out of a Reference made by a Bench of two Judges of the Apex Court in a Special Leave Petition (SLP) filed against a notice issued against an Advocate under Section 179 of BSA.

The three-Judge Bench comprising Chief Justice of India (CJI) B.R. Gavai, Justice K. Vinod Chandran, and Justice N.V. Anjaria issued the following directions –

“1. Section 132 is a privilege conferred on the client, obliging an Advocate not to disclose any professional communications, made in confidence, which privilege, in the absence of the client can be invoked by the Advocate on behalf of the client.

1.1 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.

1.2 When a summons is so issued 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.

1.3 A summons so issued shall be subject to judicial review at the instance of the Advocate or the client under Section 528 of the BNSS.

1.4 The Advocate on whom there is an obligation of non-disclosure as per Section 132 of the BSA shall be one who is engaged in a litigation or in a non-litigious or a pre-litigation matter.

2. Production of documents in the possession of the Advocate or the client will not be covered under the privilege conferred by Section 132, either in a civil case or a criminal case.

2.1 In a criminal case, the production of a document directed by a Court or an Officer shall be complied with by production before the Court under Section 94 of the BNSS; being regulated also by Section 165 of the BSA.

2.2 In a civil case, the production of a document shall be regulated by Section 165 of BSA and Order XVI Rule 7 of the Civil Procedure Code.

2.3 On production of such document, it shall be upon the Court to decide on any objection filed with respect to the order to produce, and the admissibility of the document, after hearing the Advocate and the party whom the Advocate represents.

3. The production of a digital device under Section 94 of the BNSS if directed by an Investigating Officer, the direction shall only be to produce it before the Jurisdictional Court.

3.1 On production of the digital device by the Advocate before the Court; the Court shall issue notice to the party with respect to whom the details are sought to be discovered from the digital device and hear the party and the Advocate on any objection regarding the production of the digital device, discovery from it and the admissibility of that discovered.

3.2 If the objections are overruled by the Court, then the digital device shall be opened only in the presence of the party and the Advocate, who will be enabled due assistance of a person with expertise in digital technology, of their choice.

3.3 While examining the digital device, care shall be taken by the Court not to impair the confidentiality with respect to the other clients of the Advocate and the discovery shall be confined to that sought by the Investigating Officer, if it is found to be permissible and admissible.

4. In-house counsel will not be entitled to the privilege under Section 132 since they are not Advocates practicing in Courts as spoken of in the BSA.

4.1 The In-house counsel, however, would be entitled to the protection under Section 134 insofar as any communication made to the legal advisor of his employer, which however, cannot be claimed for the communications between the employer and the In-house counsel.”

Senior Advocates Vikas Singh (President, Supreme Court Bar Association-SCBA), Atmaram N.S. Nadkarni, Siddharth Luthra, Shoeb Alam, and Advocate Vipin Nair (President, SCAORA) represented the lawyers, while Attorney General of India (AGI) R. Venkataramani and Solicitor General of India (SGI) Tushar Mehta represented the Union of India and State of Gujarat.

Case Background

Pursuant to an agreement relating to a loan and its breach, an FIR was lodged at the Odhav Police Station, Ahmedabad, Gujarat under various provisions of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) read with the provisions of the Gujarat Money-Lenders Act, 2011 (GML Act) and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC/ST Act). The accused was arrested and the Petitioner in SLP i.e., an Advocate filed a Regular Bail Application for the accused before the Sessions Judge, which was allowed. Subsequently, a notice was issued wherein after referring to the complaint and the accused arrayed, the Assistant Commissioner of Police (ACP), the Investigating Officer, directed the appearance of the Advocate within three days from the date of receipt of notice so as to “know true details of the facts and circumstances after making your inquiry” (sic).

The Petitioner Advocate approached the High Court, which rejected the Application on the ground that he did not respond to the summons and his non-cooperation resulted in the investigation being stalled. The Supreme Court’s Judges who heard the SLP against the High Court’s Order were of the opinion that two questions arise of utmost public importance, as to under what circumstances an investigating agency can directly issue a summons to question a counsel who is appearing for a party in a given case, especially under the rigour of Section 132 of the BSA corresponding to Section 126 of the Indian Evidence Act, 1872 (IEA).

Court’s Observations

The Supreme Court in the above context of the case, observed, “… we cannot but repeat that we are not concerned with a professional misconduct when considering the application of non-disclosure of confidential professional communications made by a client. On the contrary only the breach by an Advocate can lead to a charge of professional misconduct, with which we are not perturbed at the moment. We are herewith troubled with a coercion to make disclosure, by the investigating agencies. The contention also is that unless such attempts are thwarted, there would be breach of the privilege, resulting in an allegation of professional misconduct, which disclosure in any event cannot be used against the client, in evidence.”

The Court remarked that a person cannot walk out of his counsel’s office with a defaced privilege, which he had intact, when he walked into it and that too only by reason of the disclosures he made in his own interests, his defence and to further his chances in the adjudicatory process.

The Court referred to William Shakespeare’s historical play in which it was stated - “The first thing we do, let’s kill all the lawyers”. In this regard, the Court said, “Often spoken with a negative connotation, the context in which the above words were spoken in William Shakespeare’s historical play indicates it to be otherwise. Dick the Butcher, who spoke these words in the play; henchman of Jack Cade who was chosen to foster revolt, described by the Bard of Avon himself as ‘a demagogue pandering to the ignorant’, was not championing liberty, free thought or independent choices. The scene itself ends with a law clerk being sentenced to hang for being literate and informed in law. Emphasising the function of the lawyer as a guardian of freedom, especially in the context of the above statement ‘… being made by a rebel, not a friend of liberty’(sic) Stevens J. in his dissenting opinion in Walter v. Nat. Assn. of Radiation Survivors1 observed that the above text will reveal that “Shakespeare insightfully realized that disposing of lawyers is a step in the direction of a totalitarian form of government.”

The Court noted that a committee of legal experts or even a Magistrate taking a decision, without the junction of the client/accused, who would eventually be prejudiced if a decision is taken in favour of disclosure, would be wholly inappropriate and would run counter to the basic tenets of full and effective legal representation.

Coming back to the facts of the case, the Court said, “We find the summons issued in the instant case to be illegal and against the provisions of Section 132 insofar as the Advocate has been summoned to know the true details of the facts and circumstances of the case in which he appears for the accused. We are surprised that the High Court, being a Constitutional Court, exercising the jurisdiction under Section 528 of the BNSS refused to interfere with the same.”

The Court, therefore, answered the two questions referred to it, with an emphatic ‘NO’. It held that the investigating agency/prosecuting agency/the police cannot directly summon a lawyer appearing in a case to elicit the details of the case, unless there is something, the I.O has knowledge of, which falls under the exceptions, in which case it has to be specifically mentioned in the summons, which the lawyer summoned can challenge under Section 528 of the BNSS.

“… any such summons issued as against a lawyer by an I.O has to be with the approval and satisfaction of the hierarchical Superior, not below the rank of a Superintendent of Police which satisfaction has to be recorded in writing and should mention the facts leading to the exception under Section 132, for which the summons is issued”, it clarified.

The Court elucidated that the power to summon, conferred on an Investigating Officer under Section 179 read with Section 175 of the BNSS; when such summons is directed against an Advocate in a case where he is appearing for a party, is not an absolute or a blanket power to be exercised, without looking at the provisions of Section 132 of the BSA.

“We cannot deny the power altogether or place fetters on it by framing guidelines, especially when there are limits and exceptions to the privilege conferred on confidential professional communications between a Client and an Advocate. If there is an overreach, the Constitutional Courts could always be approached as has been done in the present case”, it added.

Conclusion

The Court further said that the power to summon under Section 175 & 179 is not the power to interfere with the privileged communications between a lawyer and client, as long as the Constitutional Courts sit, in this Country.

“We have already noticed from Greenough that the confidentiality of the professional communications is not confined to transactions with an Advocate engaged in a case but also extends to legal advice taken, at a solitary instance, sporadically, on a periodic basis or even under a regular retainership. We fully agree with the above proposition, one of the earliest in time referred by us, which we respectfully accept as the correct exposition of the privilege, continued incessantly under the 1872 Act, probably inspired by and infused with the principle expounded in 1833, in Greenough”, it also observed.

The Court concluded that any summons issued by an officer in-charge of a Police Station to a lawyer to produce documents, relatable to his client, can only be for production before Court of the said document which shall be perused, for the purpose of deciding on the objections raised against the direction to produce and determine its admissibility, after hearing the witness who produces it and any objection raised by the client under Section 132 of the BSA, which decision shall be by the Court and not by the officer.

Accordingly, the Apex Court disposed of the Suo Motu case, set aside the impugned summons, and cautioned the IOs.

Cause Title- IN RE: Summoning Advocates who give legal opinion or represent parties during investigation of cases and related issues. (Neutral Citation: 2025 INSC 1275)

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