Case Law (SC) – The investigating/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.

Suo Motu Writ Petition (Crl.) No. 2 of 2025 & Ors. [2025 INSC 1275] dated 31.10.2025.

Issue before Court is: -

(i)      When an individual has the association with a case only as a lawyer advising the party, could the Investigating Agency/Prosecuting Agency/Police directly summon the lawyer for questioning?

(ii)       Assuming that the Investigating Agency/ Prosecuting Agency/Police has a case that the role of the individual is not merely as a lawyer but something more, even then should they be directly 4 for short, ‘the BSA’ permitted to summon or should judicial oversight be prescribed for those exceptional criterion of cases?’

 Decision: -

“48. We find the summons issued in the instant case to be illegal and against the provisions of Section 132 insofar as the Advocate has been summoned to know the true details of the facts and circumstances of the case in which he appears for the accused. We are surprised that the High Court, being a Constitutional Court, exercising the jurisdiction under Section 528 of the BNSS refused to interfere with the same. We find the reasons stated; of the Advocate having not responded to the summons and the investigation being stalled, to dismiss the petition, to be flawed & erroneous. It is also in abdication of the inherent powers conferred on the High Court, which the blatant breach of the rule against non-disclosure projects. The breach is not only of the evidentiary rule, which many jurisdictions accept as fundamental to the adversary adjudicatory scheme, but, in the Indian context, project infringement of fundamental rights; guaranteed against self-incrimination and effective representation of Counsel.

49. On a conspectus of the issues raised, as deliberated upon, we answer the first of the two questions referred to us by a Co-ordinate Bench of this Court, with an emphatic ‘NO’. 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.

50. We also make it clear that any such summons issued as against a lawyer by an I.O has to be with the approval and satisfaction of the hierarchical Superior, not below the rank of a Superintendent of Police which satisfaction has to be recorded in writing and should mention the facts leading to the exception under Section 132, for which the summons is issued.

51. Answering question No.2, we are of the opinion that sufficient judicial oversight is prescribed under Section 528 of the BNSS. Oliver Wendell Holmes, J. in Panhandle Oil Page 55 of 78 Suo Motu Writ Petition (Crl.) No. 2 of 2025 & Ors. Company v. State of Mississippi24 referred to a quote of the Chief Justice John Marshall that ..“the power to tax is the power to destroy25”. Finding that the said proposition no more holds good, when it is recognised that distinction of law are distinction of degree, it was observed so, ..“if the States had any power, it would assume that they have all power, and the necessary alternate was to deny it all together. But this Court which so often has defeated the attempt to tax in certain ways, can defeat an attempt to discriminate or otherwise go far without wholly abolishing the power to tax. The power to tax is not the power to destroy while this Court sits”.

52. Drawing a corollary, 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. We cannot deny the power altogether or place fetters on it by 24 (1928) 277 US 218 25 McCulloch v. Maryland, 17 U.S. 316 (1819) Page 56 of 78 Suo Motu Writ Petition (Crl.) No. 2 of 2025 & Ors. 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 as has been done in the present case. Borrowing a phrase from the above extract, we cannot but say that the power to summon under Section 175 & 179 is not the power to interfere with the privileged communications between a lawyer and client, as long as the Constitutional Courts sit, in this Country. We know the inaction of a High Court has resulted in the Suo-Motu initiation, which we are sure is not the norm.

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The Way Forward;

67. On a broad conspectus of the Client-Advocate privilege as codified in Section 132 to 134 of the BSA; though we are not persuaded to lay down any guidelines, which we believe are sufficiently available on an interpretation of the provisions itself, which also restrains us from constituting a committee of legal professionals, we issue the following directions; to ensure that the privilege is not impinged upon by valiant investigators or overzealous parties to a litigation, purely on the basis of the interpretation of the evidentiary rules codified :

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 Page 75 of 78 Suo Motu Writ Petition (Crl.) No. 2 of 2025 & Ors. 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.

68. With the above directions, we dispose of the Suo Motu case, setting aside the summons issued in the SLP (Crl.) No. 9334 of 2025 and cautioning gallant Investigating Officers from transgressing impulsively, the privilege under Section 132, which could result in violating the statutory provision and more importantly result in the infringement of the fundamental rights guaranteed to the person whom the Advocate represents, by the Constitution of India.”