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...
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
Headnote
Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) – Section 187 – Police Custody and Remand – Extent of Window for Police Custody – Absolute Outer Limit Cannot Be Imposed By Courts – The Supreme Court observed that Section 187(2) and (3) of the BNSS enlarges the window during which police custody (not exceeding 15 days in the aggregate) may be sought, allowing it to be taken in parts during the first 40 or 60 days of detention - This legislative change was specifically intended to address situations where fresh facts or discoveries emerge later in the investigation - imposing an absolute, non-extendable outer limit on custody by courts runs counter to the statutory object of the provision. [Paras 20-24]
Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) – Section 38 – Right of Arrested Person to Meet an Advocate During Interrogation – Ongoing Presence of Counsel Not Mandated – The Supreme Court held that a plain reading of Section 38 of the BNSS guarantees the right of an accused to meet an advocate of their choice during interrogation, but it does not contemplate the continuous, ongoing physical presence of the advocate for the entirety of each interrogation session - While the court can regulate the manner and distance of the advocate's presence to prevent interference, an unqualified entitlement to continuous presence travels beyond the scope of Section 38. [Paras 22-24]
Criminal Procedure – Custodial Interrogation – Audio-Visual Safeguards and Videography During Transit – While affirming that continuous audio-visual recording and CCTV coverage during actual questioning sessions are salutary safeguards to protect both the accused and the investigating agency, the Supreme Court clarified that an inflexible mandate to continuously videograph every minute of road transit (e.g., over long distances between jail and the interrogation centre) is unworkable in practice due to logistical limitations like signal loss, battery, and security considerations - The requirement stands satisfied by recording actual interrogation sessions and discovery/recovery proceedings. [Paras 20-25]
Constitution of India – Article 21 – Safegards Against Custodial Torture – The investigating agency is bound by the inherent constitutional safeguards under Article 21 to ensure that the accused is not subjected to any threat, inducement, coercion, physical assault, or third-degree methods during custodial interrogation - Named investigating officials and jail authorities remain jointly and severally responsible for the safety and physical well-being of the accused. [Paras 20-25]
Cause Title: THE STATE OF ANDHRA PRADESH VERSUS SUDA SURESH VEERA VENKATA NAGA RAJU
Citation : 2026 LiveLaw (SC) 722