In Re: Summoning Advocates Who Give Legal Opinion Or Represent Parties During Investigation Of Cases And Related Issues 2025 INSC 1275

Bharatiya Sakshya Adhiniyam - Section 132-134 ; Bharatiya Nagarik Suraksha Sanhita 2023 - Section 528- The investigating agency/prosecuting agency/the police cannot directly summon a lawyer appearing in a case to elicit the details of the case, unless there is something, the I.O has knowledge of, which falls under the exceptions, in which case it has to be specifically mentioned in the summons, which the lawyer summoned can challenge under Section 528 of the BNSS. (Para 49) Directions issued: 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 - 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- 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. (Para 43)

Bharatiya Nagarik Suraksha Sanhita 2023 - Section 175,179 ; Bharatiya Sakshya Adhiniyam - Section 132- The power to summon under Section 175 & 179 is not the power to interfere with the privileged communications between a lawyer and client- The power to summon, conferred on an Investigating Officer under Section 179 read with Section 175 of the BNSS; when such summons is directed against an Advocate in a case where he is appearing for a party, is not an absolute or a blanket power to be exercised, without looking at the provisions of Section 132 of the BSA- But cannot deny the power altogether or place fetters on it by framing guidelines, especially when there are limits and exceptions to the privilege conferred on confidential professional communications between a Client and an Advocate. If there is an overreach, the Constitutional Courts could always be approached. (Para 52)

Bharatiya Sakshya Adhiniyam - Section 132- 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 (para 43) - Confidentiality of the professional communications is not confined to transactions with an Advocate engaged in a case but also extends to legal advice taken, at a solitary instance, sporadically, on a periodic basis or even under a regular retainership. (Para 53)

Bharatiya Sakshya Adhiniyam - Section 132- 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- 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- 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 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- 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 - 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- 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- 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.

Bharatiya Sakshya Adhiniyam - Section 132-134 ; Advocates Act 1961- Section 2(a) - 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- The fact of their regular employment with full salaries takes them away from the definition of an Advocate as defined under the Advocates Act 1961, which has been incorporated in Section 132 of the BSA - Whether, in his employment, an In-house Counsel advises his employer on legal affairs would not bring an In-house counsel, a fully salaried employee, within the definition of an Advocate which would also not enable him to claim the privilege with respect to communications with his employer as available under Section 126, but could definitely take up other pleas - 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 - In-house counsel though is engaged in the job of advising his employer on questions of law would even then be influenced by the commercial and business strategies pursued by his employer and would always be beholden to his employer and obliged to protect their interest.  (Para 59-62 ,67)

Bharatiya Sakshya Adhiniyam - Section 132-The complicity to the crime even if admitted by the accused to his lawyer, it does not fall within the genre of an ‘extra-judicial confession’.(Para 33)

Constitution of India - Article 14,21,22,39A - Article 14 and 21 encompasses within it the right to a legal practitioner. In addition, Article 22(1) makes mandatory the provision of the right to consult and to be defended by the legal practitioner of a man’s choice when he is arrested. Article 39-A of the Directive Principles puts obligations on the State to secure justice and equal opportunity by providing free legal aid especially in the case of citizens denied such representation by reason of economic or other disabilities-The said right has been stated to be one which enables provision of effective and adequate legal representation, which would be jeopardized while summoning a lawyer to be witness in a case. (Para 43)

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