Advocate Cannot Be Summoned As Witness And Be Compelled To Disclose Confidential Information Against Client : Kerala HC

“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 information 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.”

Advocate can't be compelled to disclose privileged client communication

The Court further observed that the notice issued by the police in this case to the lawyer, was in a way asking the petitioner lawyer to be present before the police to be interrogated regarding any information that he may have, which has been communicated between him and his client, in professional capacity. 

The court thus underscored that this is "privileged communication" under Section 132(1) of BSA and an advocate cannot be compelled to disclose that. 

“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.”

Background

The petitioner, an advocate represented a husband and wife who were booked under Sections 336(2) and 340(2) of the BNS and Section 14, 14(b), 14(c) of the Foreigners Act It was alleged that they were Bangladeshi national and had no documents to prove their citizenship and forged their id cards namely Aadhar Card, Election ID and Driving License. The petitioner filed a bail application for his clients before the Magistrate Court which was subsequently dismissed.

As per the petitioner, a notice was issued against him by the Sub-Inspector of the police under Section 94 of BNSS to produce the accused person's documents before the police station. The next day, the advocate produced the documents including the original ID cards of the accused before the court. After that, he sent a reply to the notice sent by the police saying that he has produced all the documents before the court. Subsequently, he received a notice under Section 35(3) of BNSS from the Sub Inspector of Njarakkal Police Station requiring him to appear before the police station for questioning. It was mentioned in the notice that the petitioner will be arrested if he fails to appear before the police. Against this notice, the petitioner approached the High Court. The petitioner stated that the notice was sent to him as a retaliatory measure as his client had complained before the Magistrate against the Sub-Inspector alleging custodial torture.

After the Court orally reprimanded the Sub-Inspector questioning his authority to issue such a notice in the earlier hearing, the Sub-Inspector withdrew the Section 35(3) notice.

The Court in its judgment observed that it appears that they were trying to involve the petitioner in the investigation of the crime by sending the notice. The Court said that it appears that the police wanted to allege that the petitioner has been instrumental in making the fake documents without having any material fact against him. 

It thereafter said that the action on the part of the police in issuing the notice under Section 35(3) is an infringement of the petitioner's right to practice the profession as envisaged in the Advocates Act and Article 19(1)(g) of the Constitution of India; the court thus held it as "illegal" and  "ultra vires in character". It however observed that since the Sub-Inspector had informed that the notice is withdraw, the prayer for quashing need not be granted. 

Section 35(3) notice can't be issued in routine manner

Section 35(3) states that the police officer shall, in all cases where the arrest of a person is not required under Section 35(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.

The court referred to Supreme Court's decisions in Arnesh Kumar  and Satender Kumar Antil where directions were given 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. 

The court thus underscored that 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. 

It said that 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.

It said that Section 35(3) notice is issued to an accused or suspect of attendance in lieu of arrest. Thus, a police officer has a duty to apply his mind to the case before him and ensure that the conditions in Section 35 BNSS are met before effecting arrest under sub-section (1) or issuing notice under subsection (3) in lieu of arrest. It further underscored that a Section 35(3) cannot be issued in a routine manner.

"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 court underscored.

The court directed the State Police Chief to give direction all police officers in the state to strictly comply with the Section 35(3) before issuing a notice under it.

Case No: WP(Crl.) 363 of 2025

Case Title: Ajithkumar K. K. v State of Kerala and Another

Citation: 2025 LiveLaw (Ker) 223