Investigating Officer not to issue summon to advocate representing accused to know details of the case, unless it is covered under exceptions u/s 132 of BNSS.
In a recent judgment, Hon’ble Supreme Court has issued directions that Investigating Officer 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 of Bharatiya Nagarik Suraksha Sanhita (BNSS).
ABCAUS Case Law Citation:
4820 (2025) (10) abcaus.in SC
In a recent judgment, the Hon’ble Supreme Court has issued directions that no summon shall be issued to Advocates who give legal opinion or represent parties during investigation of cases and related issues.
The matter travelled to the Hon’ble Supreme Court by reference made by a Division Bench of the Apex Court in a Special Leave Petition filed against a notice issued against an Advocate under Section 179 of the Bharatiya Nagarik Suraksha Sanhita, 2023.
In the instant case an Advocate who had procured bail for an accused under Gujarat Money-Lenders Act by Sessions Judge was issued a notice by the Investigating Officer, directing his appearance within three days so as to know true details of the facts and circumstances after making your inquiry.
The said advocate moved 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.
Aggrieved, the advocate filed a Special Leave Petition (SLP) before the Division Bench of the Hon’ble Supreme Court who framed the following questions in reference order,
(i) When an individual has the association with a case only as a lawyer advising the party, could the Investigating Agency/Prosecuting Agency/Police directly summon the lawyer for questioning?Â
(ii) Assuming that the Investigating Agency/ Prosecuting Agency/Police has a case that the role of the individual is not merely as a lawyer but something more, even then should they be directly permitted to summon or should judicial oversight be prescribed for those exceptional criterion of cases? Â
The Full Bench of the Hon’ble Supreme Court issued the following directions to ensure that the privilege under Section 132 to 134 of the BSA is not misused by the investigators or parties to a litigation:
1. Section 132 is a privilege
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 not covered under the privilege
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. Production of a digital device under Section 94 of the BNSS
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
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.
With the above directions, their Lordships cautioned Investigating Officers from transgressing the privilege under Section 132, which could result in violating the statutory provision.
Download Full Judgment Click Here >>
- Addition deleted as banks wrongly associated PAN of assessee with ATM Cash Account
- Supreme Court directions on issuing summon to advocate representing accused
- CBDT prescribes course of action for verification of agricultural income in assessment
- Pendency of only one criminal case no disqualification for Bar Council elections
- Magistrate order framing charges against assessee for prosecution u/s 276CC upheld
