Police Cannot Summon Accused's Advocate To Police Station: Kerala High Court
The Kerala High Court said that no Advocate can be compelled to disclose any communication made to him by his client in the course of their professional relationship under Section 132(1) of BSA.
The Kerala High Court held that the Police cannot issue a summons to an Advocate in his professional capacity who is appearing for the accused in a crime.
The Court held thus in a Writ Petition preferred by an Advocate who was served with a notice under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), calling upon him to appear before the Investigating Officer in a crime in which he represented an accused at the Magistrate Court in a hearing on the Bail Application.
A Single Bench of Justice Kauser Edappagath observed, "While the police can issue a summons to a suspect or witness, they cannot summon an advocate to the police station in his professional capacity. The power of the police under Section 179(1) of BNSS cannot be stretched to call for an advocate who is appearing for the accused in the crime to divulge communication between him and the client."
The Bench said that no Advocate can be compelled to disclose any communication made to him by his client in the course of their professional relationship under Section 132(1) of the Bharatiya Sakshya Adhiniyam, 2023 (BSA). It further emphasised that the said provision protects the confidentiality of communication between an Advocate and his client.
"The petitioner, as an advocate, has the right not to participate in the proceedings where he should divulge any communication which he had made with his client in the course of defending his client", it added.
Advocate S. Rajeev appeared for the Petitioner while Senior Public Prosecutor (SPP) V. Sreeja appeared for the Respondents.
Facts of the Case
The Police registered a crime against a husband and wife alleging that they were Bangladeshi nationals and did not have proper documents to prove their citizenship. It was alleged that the couple fabricated and forged the documents such as their Aadhar Cards, Election Identity Cards, Driving Licence etc., to falsely establish their Indian citizenship and thus committed the offences punishable under Sections 336(2) and 340(2) of the Bharatiya Nyaya Sanhita, 2023 (BNS) as well as Sections 14A, 14(b), and 14(c) of the Foreigners Act. The Petitioner-Advocate filed a Bail Application for the accused before the Judicial First Class Magistrate Court and the same was dismissed. According to the Petitioner, the documents of his clients were handed over to him by his clients to produce before the Court.
Accordingly, he produced 20 documents in originals with a memo before the Court. Before that the Inspector of Police issued a notice under Section 94 of BNSS to the Petitioner, calling upon him to produce the documents before the Police. The Petitioner gave reply by stating that he had already produced all the documents before the Court. Thereafter, the Sub Inspector of Police issued a notice under Section 35(3) of BNSS to the Petitioner to appear before him at the Police Station in order to question him as part of the investigation. It was also stated in the notice that if the Petitioner does not comply with the direction, he will be arrested. Challenging this, the Petitioner was before the High Court.
Reasoning
The High Court in view of the facts and circumstances of the case, noted, “Summoning an advocate representing his client potentially infringes the client's right to represent and violates the constitutional rights of the legal practitioners besides impinging upon the stature of an advocate.”
The Court agreed with the fact that the police was trying to involve the Petitioner in the investigation of the crime alleged against his clients without having any material fact that he has been instrumental in making the fake documents.
“Ext.P3 notice issued by the police is, in one way, asking the petitioner to be present before the police to be interrogated regarding the information, if at all any, with the petitioner, which has been communicated between his client and himself in his professional capacity. It is a privileged communication protected under Section 132 (1) of BSA”, it added.
Moreover, the Court remarked that in the criminal justice system, the police and the defence Advocate play a pivotal role and while the police investigate the crimes, the defence Advocate ensures fair legal representation.
“As part of the investigation, the police have wide powers to summon and interrogate witnesses and suspects to obtain information related to the investigation. However, the said power should not be used as a weapon for the selective harassment of the citizens. As stated already, the police have absolutely no authority to issue notice under Section 35(3) of BNSS to the advocate of an accused to summon him for the purpose of an investigation involving his client. Nor do they have any power to summon an advocate to disclose privileged client communication”, it also observed.
The Court said that the action on the part of the police in issuing notice is an infringement of the Petitioner's right to practice the profession as envisaged in the Advocates Act, 1961 and Article 19(1)(g) of the Constitution and is, thus, illegal, ultra vires in character and cannot be sustained.
“Needless to say, the police officers who exercise the power under Section 35(3) of BNSS are bound to act in strict compliance with the provisions of the Statute. Under no circumstances will the police have any authority to interfere with the freedom of any individual, much less an advocate of an accused, by serving notice under Section 35(3)”, it reiterated.
The Court concluded that the power given to the police under Section 35(3) is for the sake of preventing abuse of powers and cannot be used to intimidate, threaten and harass a person,
The Court, therefore, directed the Kerala State Police Chief to give direction to all the police officers in the State to strictly comply with the statutory provisions under Section 35(3) of BNSS if the presence of any person is required in connection with a crime involving a cognizable offence.
Accordingly, the High Court disposed of the Petition.
Cause Title- Ajikumar K.K. v. The State of Kerala & Anr. (Neutral Citation: 2025:KER:26581)
Appearance:
Petitioner: Advocates S. Rajeev, K.R. Rajkumar, Jagadeesh Lakshman, Aromalunni M.S., R.K. Rakesh, Nandana Babu T., Sreelakshmi P.S., Nandida Sebastian, Naveen P. Mathew, V. Vinay, M.S. Aneer, Sarath K.P., Anilkumar C.R., K.S. Kiran Krishnan, Dipa V., Raajesh S. Subrahmanian, and Vishnu T.C.
Respondents: SPP V. Sreeja
