S. 38 BNSS | Police Must Inform Suspect Of Right To Counsel During Interrogation Even Before Formal Arrest: Allahabad High Court

The Allahabad High Court observed that, under Section 38 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), the police have a duty to inform a suspect of his right to have counsel of his choice present during interrogation, even before he is formally arrested.

A Bench of Justice Atul Sreedharan and Justice Achal Sachdev held that the police cannot avoid this safeguard by keeping a suspect formally unarrested and interrogating him at the police station.

The Court made the observation while dealing with a habeas corpus petition concerning Ravi Chaurasiya, whose initial detention was earlier held illegal. In this case, the Bench has also held that a subsequent arrest and remand could not legitimize an illegal detention.

For context, Section 38 BNSS provides that an arrested person has the right to meet an advocate of his choice during interrogation, though not throughout interrogation.

The High Court, however, cautioned against interpreting the provision in a way that lets the police circumvent the safeguard simply by postponing formal arrest.

The Bench observed thus:

"This Court cannot allow a process whereby the police in order to escape the rigors of the same, does not arrest an accused/suspect, calls him to police station, interrogates him for 5-6 hours, and on the basis of self-incriminatory statements of the suspect makes him an accused because that would be violative of his right against self-incrimination, which was made on account of the absence of a counsel".

The Court made it clear that police cannot interrogate a person without informing him of his right to counsel and then rely on information obtained during that interrogation to make him an accused.

The Bench categorically said that the police's duty under Section 38 of the BNSS also arises when a suspect is taken to the police station for interrogation.

The Court further said that the suspect must be informed "even before he is arrested or made an accused" of his right to have a counsel of his choice present in the police station during interrogation.

At the same time, the Bench clarified that this does not mean that the counsel must remain present throughout the interrogation.

The Court also clarified that the failure to inform the suspect of his right to counsel would "vitiate all information given by the said suspect, especially self-incriminatory statements".

Case in brief

Briefly put, the petitioner had approached the High Court (through his) alleging illegal detention by the Soraon Police in Prayagraj.

According to his case, police took him into custody on September 14, 2026, from Ayodhya and brought him to the Soraon Police Station. However, no arrest was shown at that stage.

His mother subsequently visited the police station on September 15 to ascertain his well-being, following which a habeas corpus petition was filed before the High Court.

On September 16, the police formally arrested him at 10:45 am, recorded the arrest in the General Diary, conducted his medical examination and produced him before a Magistrate, who remanded him to judicial custody.

The High Court had earlier called for CCTV footage from the police station. However, it found that the counter affidavit filed by the Station House Officer and Investigating Officer clearly admitted that the petitioner was in custody.

The SHO attributed the failure to record the petitioner's presence in the General Diary to an "inadvertent mistake". The Court, however, rejected this explanation and termed the omission a "conscious omission" to escape the charge of illegal detention.

The Court ultimately held that the subsequent formal arrest and remand could not cure the initial illegality. In this regard, the bench applied the "Fruit of the Poisonous Tree" doctrine in the context of Articles 21 and 22.

The High Court found that the petitioner had remained in police custody for more than 24 hours without being produced before a Magistrate.

Hence, it directed Chaurasiya's release, if not wanted in any other case, and awarded ₹30,000 compensation. The habeas corpus plea was thus allowed.

Another report from the same order : 'Fruit Of Poisonous Tree': Subsequent Arrest, Remand Cannot Cure Illegal Detention, Holds Allahabad High Court; Awards ₹30K Compensation