It is ostensibly in the fitness of things that while striking the right chord, the Kerala High Court in a most learned, laudable, landmark, logical and latest judgment titled Ajitkumar KK vs The State of Kerala & Anr in WP(Crl) 363 of 2025 and cited in Neutral Citation No.: 2025:KER:26581 that was finally heard on 27.3.2025 and judgment pronounced on same day has made it clear in most unmistakable terms that the police cannot issue a summons to an advocate in his professional capacity who is appearing for the accused in a crime. It also observed clearly that police’s power provided under Section 179(1) of BNSS cannot be stretched to call for an advocate – who is appearing for the accused in the crime – so as to divulge information shared between him and the client. Very rightly so!
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Dr Justice Kauser Edappagath of the Kerala High Court at Ernakulam sets the ball in motion by first and foremost putting forth in para 1 that, “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.”
To put things in perspective, the Bench envisages in para 2 observing that, “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.”
As it turned out, the Bench enunciates in para 3 stating that, “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.”
It is worth noting that the Bench then notes in para 7 that, “Section 35 of BNSS outlines the circumstances under which police can arrest a person without a warrant for cognizable offences and mode of issuance of notice in case his arrest is not required. Sub-section (3) of Section 35, which is relevant for the purpose of this case, provides that the police officer shall, in all cases where the arrest of a person is not required under sub-section (1), issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before the officer or at a place specified in the notice. A reading of the said provision makes it clear that a notice under sub-section (3) of Section 35 can only be issued to a person when there is reasonable suspicion that he has committed a cognizable offence. In other words, before issuing a notice to a person under sub-section (3) of Section 35, the police officer must have subjective satisfaction that the person against whom the notice is to be issued has committed a cognizable offence. A notice under Section 35(3) is issued to an accused or suspect of attendance in lieu of arrest. The police officer has a duty to apply his mind to the case before him and ensure that the conditions in Section 35 of BNSS are met before effecting arrest under sub-section (1) or issuing notice under subsection (3) in lieu of arrest. No notice under Section 35(3) can be issued in a routine manner. Criminal law and its process ought not to be instrumentalized as a tool of harassment. In Arnesh Kumar v. State of Bihar and Another [(2014) 8 SCC 273], the Supreme Court has emphasized that the investigating agencies and their officers are duty-bound to comply with the mandate of Section 41 and 41 A of Cr.PC (Section 35(1) and (3) of BNSS). In Satender Kumar Antil v. Central Bureau of Investigation & Another [(2022) 10 SCC 51], the Supreme Court reiterated the importance of doing so and held that any dereliction on the part of the police officers to comply with the mandate of those provisions would be met with appropriate action. It was observed that Sections 41 and 41 A of Cr.P.C are facets of Article 21 of the Constitution.”
Be it noted, the Bench then notes in para 8 that, “In Ext. P3 notice, it has been stated that the police were convinced that the petitioner has to be questioned to ascertain certain facts and circumstances as part of the investigation in Crime No.157 of 2025 of Njarakkal Police Station. As per Section 179(1) of BNSS (Section 160(1) of Cr.P.C), any police officer making an investigation has the power to require the attendance before himself of any person who appears to be acquainted with the facts and circumstances of the case. Notice under Section 35(3) of BNSS is issued to a suspect, whereas the notice under Section 179(1) of BNSS is issued to a witness. Here Ext. P3 notice was issued under Section 35(3) of BNSS.”
Most significantly, most remarkably and so also most forthrightly, the Bench encapsulates in para 9 what constitutes the cornerstone of this notable judgment postulating that, “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. 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.”
Equally significant is that while continuing in the same vein, the Bench then hastens to add in para 10 propounding that, “As rightly argued by the learned counsel for the petitioner, it appears that the police, by issuing Ext.P3 notice, were 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. 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 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.”
Most sagaciously, the Bench points out in para 11 expounding clearly that, “In the criminal justice system, the police and the defence advocate play a pivotal role. 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. The action on the part of the police in issuing Ext.P3 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 of India. Ext.P3 is, thus, illegal, ultra vires in character and cannot be sustained.”
It would be instructive to note that the Bench then notes in para 12 that, “Pursuant to the order of this Court, the Sub Inspector of Police, Njarakkal Police Station appeared before me yesterday. He submitted that Ext.P3 notice issued was already withdrawn. The Sub Inspector of Police has also handed over a copy of the letter withdrawing Ext.P3 before me. Since Ext.P3 has already been withdrawn, the prayer sought to quash the same need not be granted.”
Finally, the Bench then draws the curtains of this robust judgment by holding and directing in para 13 that, “In Arnesh Kumar (supra) and Satender Kumar Antil (supra), the Supreme Court has given direction to all the State Governments to instruct the police officers to strictly follow Section 41 and 41A of Cr.P.C. (Section 35(1) and (3) of BNSS) while effecting arrest of a person. 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). 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 (Unnimon K.A. v. State of Kerala and Others, 2020 (6) KHC 53). The Kerala State Police Chief is directed 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. The original petition is disposed of as above.”
All told, there is no creditworthy reason as to why the police should not comply in totality with what the Kerala High Court has directed so clearly, cogently, commendably and convincingly in this leading case. It merits just no reiteration that the bottom-line of this notable judgment is that an advocate cannot be summoned as a witness and be compelled to disclose confidential information against a client. There is no valid reason as to why the police should not adhere to this as held so very courageously by the Kerala High Court in this noteworthy judgment not in just Kerala but all over India!
