In a Suo Motu Writ Petition before the Supreme Court regarding the summoning of advocates who give legal opinion or represent parties during the investigation of cases and related issues, a Bench constituted of Chief Justice B.R. Gavai, Justice K. Vinod Chandran, and Justice N.V. Anjaria set aside the impugned summons and held that an investigating agency cannot summon the lawyer of the accused as a witness, unless the case is covered as an exception in statutory provisions under the Bharatiya Sakshya Adhiniyam, 2023 (BSA).
The matter arose out of a reference made by a Division Bench of this court in a Special Leave Petition (SLP). The facts of the said SLP are that after an agreement to a loan was breached, a First Information Report was lodged in Ahmedabad. Thereafter, the accused was arrested, and the advocate filed a regular bail application, which was allowed.
Subsequently, the Assistant Commissioner of Police, Ahmedabad (Investigating Officer), issued a notice requiring the appearance of the petitioner’s advocate within three days. The advocate moved the High Court, which rejected his application because he failed to respond to the summons, and his non-cooperation was the reason the investigation was delayed.
The Judges who heard the SLP against the said order of the High Court questioned the circumstances under which an investigating agency could issue a summons directly to question a counsel in a given case, especially under Section 132 of the BSA. Two other questions emphasized were –
• Can the investigating agency summon an individual who is associated with a case only as a lawyer advising the party?
• Assuming that the investigating agency is not merely a lawyer but something more, should they be directly permitted to summon, or should judicial oversight be prescribed for those exceptional cases?
It was prima facie observed in the case that subjecting the counsel in a case to the beck and call of the investigating agency appeared to be completely untenable.
The Bar contended that there is no corresponding statutory scheme to protect an advocate from being coerced into disclosing things related to his client’s case, especially by an investigating agency that is empowered to summon witnesses and interrogate suspects.
It was contended that the police and investigating agencies continued to summon advocates who appear for the accused, taking recourse to provisions under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which were illegal, since any privileged communication under Section 132 cannot be disclosed without the client’s consent. It was submitted that a summons to an advocate regarding an investigation into a person whom the advocate defends interferes with the fundamental right to carry on a profession and does not fall within any exception.
The Court took note of various cases and perused Rule 11 of Section 20 of Part VI of the Bar Council of India Rules, 1975, and stated that a lawyer is under an obligation to provide his client with the maximum protection as established by law. It was said that Sections 132 to 134 were incorporated not only to protect the client but also to provide the advocate with immunity from making any disclosure.
The Court stated that the illustrations in the statutory provisions of the BSA are indicative of the instances when the transactions between a client and his lawyer would not come within the privilege of professional communication under Section 132. It was said that an advocate cannot be coerced into revealing any information regarding his client or his cause, as such a disclosure would constitute a violation of Section 132. Further, the Court stated that even if the accused admits to his lawyer his complicity in the crime, it would not fall within the genre of an ‘extra-judicial confession’.
The Court stated that the question was whether the professional brethren of good repute and competency had to be associated in a summons issued to a lawyer by the Police under BNSS in pursuance of an investigation into a crime. It was said that an Investigating Officer (IO) is not oblivious of the law and that when a person cannot incriminate himself, he cannot be incriminated by his counsel’s statement based on professional conversations.
Further, while discussing a person’s right to legal representation, the Court cited Articles 14 and 21 and drew on various cases. The Court stated that it was not satisfied that it could frame a guideline regarding the procedure of summoning a lawyer. It was said that the power of the police officer to investigate a cognizable offence under Section 175 could not be regulated by the Court, especially when sufficient guidelines were available under Sections 132 to 134 of BSA.
The Court stated that it was not inclined to constitute a committee of legal professionals or enable the issuance of summons through a Magistrate, which would be in derogation of the provisions of BNSS. It was said that such a measure could frustrate the cause of justice and stifle the due administration of law. Further, the Court said that it would be wholly inappropriate if a committee of legal experts or even a Magistrate took a decision without the client/accused, who would eventually be prejudiced if a decision was taken in favour of the disclosure made by his lawyer.
The Court said that the facts and circumstances of a crime or an FIR are not to be elicited from the advocate representing the accused, and that it is for the IO to obtain independent evidence of the accused’s culpability. It was stated that it must be explicitly mentioned when a summons issued to an advocate lies within any of the exceptions under Section 132, as this is not an empty formality.
The Court held that the summons issued in the present matter was illegal and expressed surprise that the High Court, being a Constitutional Court, refused to interfere. Going back to the questions mentioned above, the Court answered the first question in the negative and made it clear that any summons issued against a lawyer must be issued with the approval of the IO’s hierarchical superior. While answering the second question, the Court opined that sufficient judicial oversight is provided for under Section 528 of the BNSS. It said that when there is an overreach, the Constitutional Courts could always be approached.
While considering the issue of seizure of digital equipment, it was stated that the Court and the IO are empowered to direct the production of a document under Section 94 of Chapter VII of the BNSS. The Court said that when the client, who has the document, cannot refuse to produce the same, subject only to his objection being decided by the court, and cannot claim privilege under Section 126, there is no question of any privilege being claimed by the lawyer to whom his client has given the document.
The Court held that any summons issued by an IO to a lawyer for producing documents related to his client can only be to produce the same before the court so that the court can decide its admissibility after hearing the witness who produces it and any objection by the client under Section 132 BSA. Further, it was held that, in examining such digital equipment, the court shall ensure the presence of the lawyer, his client, and any other person well-versed in technology.
While deciding whether an in-house counsel employed by a corporate entity would be covered under Section 132, the Court said that their regular employment with full salaries takes them away from the definition of an advocate under the Advocates Act, 1961.
Regarding the client-advocate relationship, the Court passed the following directions –
• The IO 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.
• When a summons is issued to an advocate, it shall explicitly specify the facts on which the exception is sought to be relied upon, with the consent of a superior not below the rank of a Superintendent of Police, who shall record his satisfaction in writing.
• 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.
• The advocate having an obligation of non-disclosure as per Section 132 shall be one who is engaged in a litigation or in a non-litigious or a pre-litigation matter.
• Production of documents in the possession of an advocate or a client will not be covered under the privilege conferred by Section 132, either in a civil case or a criminal case.
• In a criminal case, the production of a document directed by a Court or IO shall be complied with by production before the Court under Section 94 of the BNSS, being regulated also by Section 165 of the BSA.
• 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.
• On production of a document, the Court shall decide on any objection filed with respect to the order to produce, and the admissibility of the document.
• If the Court overrules objections, then the digital device shall be opened only in the presence of the party, the advocate, and any person with expertise in digital technology.
• While examining a digital device, the court shall not impair the confidentiality of other clients of the advocate.
• In-house counsel will not be entitled to the privilege under Section 132.
• In-house counsel, however, will be protected under Section 134 for 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.
Lastly, the Court set aside the issued summons and cautioned IOs against breaching the privilege under Section 132, which could violate statutory provisions and infringe the fundamental rights guaranteed by the Constitution.
Appearances:
For Petitioners – Mr. Nishant R. Katneshwarkar, Ms. Ganu Suvarna Siddhanath, Mr. Siddhant Sharma, Mr. Siddharth H Dave, Mr. Maulik Soni, Mr. Prafull Bhardwaj
For Respondents – Mr. Tushar Mehta, Mr. Atmaram N.S. Nadkarni, Ms. Swati Ghildiyal, Ms. Abhipsa Mohanty, Mr. S Prabakaran, Mr. Manan Kumar Mishra, Mrs. Usha Prabakaran, Mr. Apurba Kumar Sharma, Mr. Maheswaran Prabakaran, Ms. Anjul Dwivedi, Mr. M Naveen, Dr. Ram Sankar, Mr. Jawahar P, Mrs. Harini Ram Sankar, Mr. Ajith Williams, Ms. Adhirai Devi, Mr. Adhil, M/s. Ram Sankar & Co., Mr. Sidharth Luthra, Mr. Kumar Vaibhaw, Mr. Mohd. Ashaab, Ms. Madhusruthi Neelakantan, Mr. Mukul Rohatgi, Mr. Ranjit Kumar, Mr. Mahesh Agarwal, Mr. Anshuman Srivastava, Mr. Himanshu Saraswat, Mr. Chirag Nayak, Mr. E. C. Agrawala, Mr. M Shoeb Alam, Mr. Talha Abdul Rahman, Mr. M Shaz Khan, Mr. Sudhanshu Tewari, Mr. Dev Sareen, Mr. Faizan Ahmed, Mr. Rafid Akhter, Mr. Deepak Khosla, Mr. Pranav Sachdeva, Mr. Abhay Nair, Mr. P Rohit Ram, Mr. Sanyam Jain, Mr. S Prabakaran, Mr. Manan Kumar Mishra, Mrs. Usha Prabakaran, Mr. Apurba Kumar Sharma, Mr. Maheswaran Prabakaran, Ms. Anjul Dwivedi, Mr. M Naveen, Dr. Ram Sankar, Mr. Jawahar P, Mrs. Harini Ram Sankar, Mr. Ajith Williams, Ms. Adhirai Devi, Mr. Adhil, Mr. Amit Desai, Mr. Shantanu Phanse, Mr. Prashant Relekar, Mr. Prastut Mahesh Dalvi, Ms. Vidhi Pankaj Thaker, Ms. Preet Phanse, Mr. Suresh Sabrat, Mr. Gopal Shenoy, Mr. Kaustubh Shukla, Mr. Vikas Singh, Mr. Rahul Kaushk, Mrs. Aparna Bhat, Mr. Anand Sanjay M. Nuli, Mr. Dinesh Kr Goswami, Dr. Anindita Pujari, Mr. Ashok Panigrahi, Ms. Monika Gusain, Mrs. Pragya Baghel, Mr. Meenesh Kumar Dubey, Mr. Vikrant Yadav, Mr. Susheel Kumar Tomar, Mr. Kumar Gaurav, Mr. Mukesh Kumar Singh, Mr. Manish Mohan, Mr. Ashish Kumar Sinha, Mr. Upendra Mishra, Mr. Rohit Vats, Mrs. Samta Pushkarna Mishra, Mrs. Smriti Kumari, Ms. Rachna Gandhi, Ms. Shrika Gautam, Mr. Vivek Sharma, Dr. Vijay Kumar Sharma, Mr. Varun K Chopra, Mr. Dipu Kumar Jha, M/S. VKC Law Offices, Mr. Vijay Hansaria, Mr. Tarun Rana, Ms. Kavya Jhawar, Ms. Nandini Rai, Mr. Pushkar Karni Sinha, Mr. Vipin Nair, Mr. Amit Sharma, Mr. Nikhil Jain, Mr. Kaustubh Shukla, Mr. Aljo K. Joseph, Mr. Vishal Prasad, Ms. Reena Pandey, Dr. Meenakshi Kalra, Ms. Pragbya Parijat Singh, Ms. Astha Sharma, Mr. Aditya Giri, Mr. A. Selvin Raja, Mr. Nipun Saxena, Mr. Salvador Santosh Rebello, Mr. Shreyas Awastrhi, Ms. Pratibha Yadav, Ms. Aadya Pandey, Ms. Monal Prasad, Ms. Deepali Dabas, Mr. Praveen Kr. Singh, Mr. Amit Desai, Mr. Mahesh Agarwal, Mr. Gopalakrishna Shenoy, Mr. Ritesh Desai, Mr. Anshuman Srivastava, Mr. Himanshu Saraswat, Mr. Chirag Nayak, Mr. E.C. Agrawala
