Institute of Legal and Management Studies

The Supreme Court on Friday (October 31) issued a set of directions to ensure that investigating agencies do not arbitrarily issue summons to advocates in criminal cases over the legal advice given by them to the accused.

A bench comprising Chief Justice of India BR Gavai, Justice K Vinod Chandran and Justice NV Anjaria pronounced the decision in the suo motu case taken by the Court over the issue of investigating agencies arbitrarily summoning advocates representing accused.

While the Court refrained from issuing any guidelines and ruled out the need for Magisterial supervision before the issuance of summons, it issued certain directions.

"We have tried to harmonise the evidentiary rule with the procedural rule and issued the following directions," Justice Vinod Chandran said.

Directions

1. Section 132 is a privilege conferred on the client, obliging an Advocate not to disclose any professional communications, made in confidence, which privilege, in the absence of the client can be invoked by the Advocate on behalf of the client.

1.1 The Investigating Officers in a criminal case 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.

1.2 When a summons is so issued to an Advocate, under any of the exceptions, it shall explicitly specify the facts on which the exception is sought to be relied upon, which shall also be with the consent of the superior Officer not below the rank of a Superintendent of Police who shall record his satisfaction as to the exception in writing, before the summons is issued.

1.3 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.

1.4 The Advocate on whom there is an obligation of non-disclosure as per Section 132 of the BSA shall be one who is engaged in a litigation or in a non-litigious or a pre-litigation matter.

2. Production of documents in the possession of the Advocate or the client will not be covered under the privilege conferred by Section 132, either in a civil case or a criminal case.

2.1 In a criminal case, the production of a document directed by a Court or an Officer shall be complied with by production before the Court under Section 94 of the BNSS; being regulated also by Section 165 of the BSA.

2.2 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.

2.3 On production of such document, it shall be upon the Court to decide on any objection filed with respect to the order to produce, and the admissibility of the document, after hearing the Advocate and the party whom the Advocate represents.

3. The production of a digital device under Section 94 of the BNSS if directed by an Investigating Officer, the direction shall only be to produce it before the Jurisdictional Court.

3.1 On production of the digital device by the Advocate before the Court; the Court shall issue notice to the party with respect to whom the details are sought to be discovered from the digital device and hear the party and the Advocate on any objection regarding the production of the digital device, discovery from it and the admissibility of that discovered.

3.2 If the objections are overruled by the Court, then the digital device shall be opened only in the presence of the party and the Advocate, who will be enabled due assistance of a person with expertise in digital technology, of their choice.

3.3 While examining the digital device, care shall be taken by the Court not to impair the confidentiality with respect to the other clients of the Advocate and the discovery shall be confined to that sought by the Investigating Officer, if it is found to be permissible and admissible.

4. In-house counsel will not be entitled to the privilege under Section 132 since they are not Advocates practicing in Courts as spoken of in the BSA.

4.1 The In-house counsel, however, would be entitled to the protection under Section 134 insofar as 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.

With the above directions, the suo motu case was disposed of. The summons issued to the lawyer in the Special Leave Petition was quashed.

Justice K Vinod Chandran pronounced the judgment.

As per the BSA, the privilege of non-disclosure under Section 132 is not available to :

(a) any such communication made in furtherance of any illegal purpose;

(b) any fact observed by any advocate, in the course of his service as such, showing that any crime or fraud has been committed since the commencement of his service.

During the hearings, Attorney General for India R Venkataramani, Solicitor General of India Tushar Mehta, Senior Advocate and Supreme Court Bar Association President Vikas Singh, Supreme Court Advocates-on-Record Association President Vipin Nair etc., submitted their suggestions. Senior Advocates Siddharth Luthra, Vijay Hansaria, Amit Desai, Ranjit Kumar etc, appearing for different bar associations, also gave their suggestions.

SCBA, the SCAORA and other bar associations submitted to the Court that any summons issued to a lawyer should only be after a magistrate's approval, and it should not be prima facie assumed that the fees received for the legal advice are from the proceeds of crime.

Vikas Singh cited the Jacob Mathew case, which held that FIRs against doctors in medical negligence cases can be registered only after a preliminary examination by an expert committee comprising doctors. He suggested adopting a similar measure with respect to the summons to advocates, with the Magistrate exercising oversight.

Solicitor General Tushar Mehta however opposed this suggestion, saying that it would amount to creating a special protection for a class of persons, which would violate the principle of equality under Article 14. The SG further added that a lawyer who is directly involved in a crime cannot claim any protection.

Attorney General also objected to the suggestion for Magisterial oversight, saying that it will amount to giving a "long rope." AG also said that in-house counsel, General counsel etc, will also get the same privileges as a lawyer.

What Led To The Present Case?

The suo motu case followed the controversy created by the action of the Enforcement Directorate in issuing summons to two Senior Advocates- Arvind Datar and Pratap Venugopal. Following the protests by the bar associations, the ED withdrew the summons issued to the lawyers and issued a circular stating that summons to lawyers cannot be issued without the prior permission of the ED Director.

Later, a bench comprising Justice KV Viswanathan and Justice NK Singh expressed concerns over the trend of police and investigative agencies summoning advocates, and referred the matter to the Chief Justice of India. This development happened in a case where the Gujarat Police summoned an advocate who represented an accused. Staying the notice issued to the lawyer, the bench observed that summoning advocates will undermine the independence of the legal profession and consequently impact the fair administration of justice. Following the intervention by Justice Viswanathan's bench, the suo motu case was registered on July 4.

Case : In Re : Summoning Advocates Who Give Legal Opinion or Represent Parties During Investigation of Cases and Related Issues | SMW(Cal) 2/2025

Citation : 2025 LiveLaw (SC) 1051

Click here to read the judgment