S. 38 BNSS | Advocate Of Accused Cannot Remain Present Throughout Police Interrogation : Supreme Court
Clarifying the scope of Section 38 of Bharatiya Nagarik Suraksha Sanhita, 2023, the Supreme Court on Monday (July 27) held that the provision entitles an arrested person to meet an advocate of choice during interrogation but does not contemplate continuous physical presence throughout the interrogation.
“A plain reading of the provision makes it clear that the right guaranteed thereunder is the right to meet an advocate of choice during interrogation. It does not, by any means, contemplate the continuous, ongoing physical presence of an advocate for the entirety of each interrogation session, whatever be the visual or audible distance maintained.”, observed a bench of Justice Vikram Nath and Justice Sandeep Mehta.
The bench was hearing an appeal filed by the State of Andhra Pradesh against the High Court's decision to put a mandatory condition of nominating two advocates to be present at the prison during the respondent-accused's police custody. Moreover, one advocate was permitted to remain present 'at any given point of time during the accused's interrogation'.
The State challenged this condition before the Supreme Court, contending it was excessive and hampered the investigation.
Finding force in the State's contention, the judgment authored by Justice Sandeep Mehta acceded to the Appellant-State apprehension that the conditions imposed would create a hurdle in a custodial investigation of the Respondent. Moreover, it found the condition to permit an advocate's presence during the accused interrogation to be beyond the scope of Section 38 of BNSS.
“However, the direction that such presence should be available “at any given point of time during the interrogation”, if construed as conferring an unqualified entitlement to continuous presence, would travel beyond what Section 38 BNSS itself contemplates…”, the Court said.
Resultantly, the condition permitting presence of the lawyer was retained with the modification that “such lawyer shall only be allowed to remain present within the site of interrogation where he can see the respondent accused.”
Also From Judgment: New Criminal Law Allows Police Custody Beyond First 15 Days : Supreme Court Explains S.187(2) BNSS
Cause Title: THE STATE OF ANDHRA PRADESH VERSUS SUDA SURESH VEERA VENKATA NAGA RAJU
Citation : 2026 LiveLaw (SC) 722