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2025 Supreme(Online)(Ker) 68014
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
Advocates Appeared :
For the Petitioner : K.R. Rajkumar, Jagadeesh Lakshman, Aromalunni M.S., R.K. Rakesh, Nandana Babu T., Sreelakshmi P.S., Nandida Sebastian, Naveen P. Mathew, S. Rajeev, V. Vinay, M.S. Aneer, Sarath K.P., Anilkumar C.R., K.S. Kiran Krishnan, Dipa V., Raajesh S. Subrahmanian, Vishnu T.C.
For the Respondent : Smt. Sreeja V., SR. PP.
Advocate Appeared:
For the Appellant : BY ADVS. K.R.RAJKUMAR JAGADEESH LAKSHMAN AROMALUNNI M.S. R.K.RAKESH NANDANA BABU T. SREELAKSHMI P.S. NANDIDA SEBASTIAN NAVEEN P. MATHEW S.RAJEEV(K/000249/1993) V.VINAY(K/355/2009) M.S.ANEER(K/644/2013) SARATH K.P.(K/001467/2021) ANILKUMAR C.R.(K/001190/2020) K.S.KIRAN KRISHNAN(K/3514/2022) DIPA V.(K/003785/2024) RAAJESH S.SUBRAHMANIAN(K/396/2004) VISHNU T.C.(K/326/2019)
For the Respondent: SMT.SREEJA V., SR. PP
Police cannot summon an advocate in their professional capacity, as it infringes on client confidentiality and legal representation rights.
Headnote:
(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The notice was withdrawn by the police, rendering the petition moot.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.
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 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 . 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 was issued to him stating that, as part of the investigation, he has to be
