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IN THE HIGH COURT OF KERALA AT ERNAKULAM
KAUSER EDAPPAGATH, J.
Ajikumar K.K., S/o. Karunakaran Pillai K. - Petitioner
Versus
The State of Kerala, Represented by the Secretary, Department of Home, Secretariat & Ors. - Respondents
WP(Crl.) No. 363 of 2025
Decided On : 27-03-2025
(A) Bharatiya Nagarik Suraksha Sanhita, 2023 - Section 35(3) - Advocates Act, 1961 - Article 19(1)(g) of the Constitution - Notice issued to advocate to appear before police in connection with investigation of clients' case - Court held that police cannot summon an advocate in professional capacity, infringing on client confidentiality and legal representation rights. (Paras 9 , 10 , 11 , 12 )
(B) Criminal Procedure Code - Sections 41 and 41A - Police must comply with statutory provisions while issuing notices or making arrests - Failure to do so can lead to appropriate action against police officers. (Paras 7 , 13 )
Facts of the case:
The petitioner, an advocate, was served a notice under Section 35(3) of BNSS to appear before police regarding clients accused of document forgery. The notice was deemed illegal as it infringed on the advocate's right to confidentiality.
Findings of Court:
The notice was withdrawn by the police, rendering the petition moot.
Issues: Whether the police can summon an advocate in connection with a case involving their clients.
Ratio Decidendi: The court ruled that the police's action violated the advocate's rights and the confidentiality of client communication.
Result: Petition disposed of as the notice was withdrawn.
The High Court's directions in this case are as follows:
The notice issued to the advocate under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) was found to be illegal, ultra vires, and an abuse of the legal process. The Court held that police cannot summon an advocate in his professional capacity as it infringes upon client confidentiality and the advocate's right to practice (!) .
The police's action of issuing the notice was an infringement of the advocate's rights protected under the relevant legislation and the Constitution. The Court emphasized that the police have no authority to summon an advocate for investigation purposes regarding privileged communications with clients (!) .
The Court noted that the notice had already been withdrawn by the police, rendering the petition moot. Therefore, there was no need to further quash the notice (!) .
The Court directed that police officers must strictly comply with the statutory provisions when issuing notices or making arrests, particularly emphasizing that notices under Section 35(3) should not be issued to advocates or in situations involving privileged communication (!) .
The Kerala State Police Chief was directed to instruct all police officers in the State to adhere strictly to these statutory provisions and ensure that the power under Section 35(3) is not misused to harass or intimidate individuals, including advocates (!) .
Overall, the Court disposed of the original petition considering that the contested notice had been withdrawn and reinforced the principle that police actions must respect the rights of advocates and the confidentiality of client communications.
JUDGMENT :
The petitioner, a practising advocate, was served with a notice under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short 'BNSS'), calling upon him to appear before the investigating officer in a crime in which he represented the accused at the Magistrate Court in a hearing on the bail application - a strange procedure unheard of in criminal investigation.
2. The Njarakkal Police registered a crime as Crime No.157 of 2025 against a husband and wife, alleging that they are Bangladeshi nationals and do not have proper documents to prove their citizenship. It is 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 (for short 'BNS'), as well as Sections 14A, 14(b) and 14(c) of the Foreigners Act. The petitioner filed a bail application for the accused before the Judicial First-Class Magistrate Court, Njarakkal. The bail application was dismissed.
3. According to the petitioner, Aadhar Cards, Election Identity Cards, Driving Licence etc., of his clients were handed over to him by his clients to produce before the court. Accordingly, he produced 20 documents in originals, including the documents mentioned above with a memo before the court on 15.02.2025. On the previous day, i.e., on 14.02.2025, the Inspector of Police, Njarakkal Police Station, issued Ext.P1 notice under Section 94 of BNSS to the petitioner, calling upon him to produce the documents before the police on 17.02.2025 at 10.00 a.m. The petitioner gave Ext.P2 reply on 17.02.2025 to Ext.P1 notice stating that he had already produced all the documents before the court. Thereafter, the Sub Inspector of Police, Njarakkal Police Station, who is the investigating officer of Crime No.157 of 2025, issued Ext.P3 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 in Crime No.157 of 2025. It is also stated in the notice that if the petitioner does not comply with the direction, he will be arrested in terms of the sub-sections (5) & (6) of Section 35. Being aggrieved by Ext.P3 notice, the petitioner has approached this Court to quash the same.
4. I have heard Sri. S. Rajeev, the learned counsel for the petitioner and Smt. V. Sreeja, the learned Senior Public Prosecutor.
5. The learned counsel for the petitioner submitted that Ext.P3 notice issued by the Sub Inspector of Police, Njarakkal Police Station, is ultra vires in character, illegal and sheer abuse of the process of law. The learned counsel further submitted that the petitioner has only acted in the best interest of his clients, and the police have no authority to summon the petitioner in connection with the investigation of a case wherein his clients were accused. The counsel also submitted that the issuance of Ext. P3 notice to the petitioner was retaliatory since his client/accused made a complaint before the Magistrate against the Sub Inspector alleging custodial torture. The Advocates Act, 1961 and Article 19(1) (g) of the Constitution of India protect an advocate’s right to practice and the police’s action violated confidentiality under Section 132(1) of the Bharatiya Sakshya Adhiniyam, 2023 (for short, ‘BSA’), added the Counsel.
6. In the notice issued by respondent No.2 to the petitioner under Section 94 of the BNSS, the petitioner was directed to produce the Aadhaar Card, other documents etc., before the police. However, before the receipt of the said notice, the petitioner had already submitted all those documents before the Court. The petitioner gave Ext.P2 reply to respondent No.2 stating all these facts on 17.02.2025. However, subsequently, Ext.P3 notice under Section 35(3) of BNSS was issued to him stating that, as part of the investigation, he has to
Police cannot summon an advocate in their professional capacity, as it infringes on client confidentiality and legal representation rights.
An Advocate cannot be summoned under Section 160 of the Cr.P.C. without a valid legal basis, protecting attorney-client confidentiality unless evidence of illegal activity exists.
The court affirmed that notices issued under Section 179 of the BNSS are valid for investigative purposes and not subject to challenge if statutory provisions are followed.
The autonomy of the legal profession must be protected against undue interference by investigating agencies, ensuring advocates can perform their duties without fear of summons.
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