Kiran Raj

The Kerala High Court, Single Bench of Justice Dr. Kauser Edappagath held that police officers cannot issue a notice under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), to an advocate representing an accused unless there is reasonable suspicion that the advocate has committed a cognizable offence. The Court found that issuing such a notice without any supporting material is illegal, ultra vires, and violates the advocate’s right to practise under Article 19(1)(g) of the Constitution. Referring to Section 132(1) of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), the Court recorded that communications between an advocate and client are privileged and cannot be compelled. Although the impugned notice had been withdrawn, the Court directed the Kerala State Police Chief to ensure that all officers comply strictly with the requirements of Section 35(3) of BNSS.

The petitioner, a practicing advocate, approached the High Court challenging a notice dated 19 March 2025 issued to him under Section 35(3) of BNSS by the Sub Inspector of Police, Njarakkal Police Station. The context involved Crime No. 157 of 2025, registered against a husband and wife on allegations of being Bangladeshi nationals who had forged identity documents, including Aadhaar Cards, Election Identity Cards, and Driving Licences, to falsely establish Indian citizenship. Offences under Sections 336(2) and 340(2) of the Bharatiya Nyaya Sanhita, 2023 (BNS), along with Sections 14A, 14(b), and 14(c) of the Foreigners Act were invoked.

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The petitioner, as advocate for the accused, had submitted original identity documents before the Judicial First-Class Magistrate Court, Njarakkal, along with a memo on 15 February 2025. Prior to that, on 14 February 2025, a notice under Section 94 of BNSS was issued by the police, requesting production of the same documents. The petitioner responded on 17 February 2025, stating that all documents had already been submitted to the court.

Despite this, a subsequent notice under Section 35(3) of BNSS was served on the petitioner, requiring his presence for questioning as part of the ongoing investigation. The notice also contained an intimation that non-compliance would lead to arrest under Sections 35(5) and 35(6) of BNSS.

In challenging the legality of the notice, the petitioner contended that he merely acted in accordance with professional obligations and did not possess or use the documents beyond filing them before the court. It was further submitted that the issuance of the notice was retaliatory, citing a complaint made before the Magistrate by the accused alleging custodial torture by the Sub Inspector.

The petitioner's counsel asserted that such police actions violated the petitioner's right under Article 19(1)(g) of the Constitution, which guarantees the freedom to practice any profession. Further, it was argued that the summons amounted to compelling disclosure of privileged communication protected under Section 132(1) of the BSA. The Advocates Act, 1961 was also cited in support of the claim that the issuance of the notice amounted to unwarranted interference in the petitioner’s professional role as an advocate.

The Court examined the scope and application of Section 35 of BNSS, which governs police powers to arrest without warrant and to issue notices for appearance in lieu of arrest. Referring specifically to Section 35(3), the Court recorded:

“A notice under sub-section (3) of Section 35 can only be issued to a person when there is reasonable suspicion that he has committed a cognizable offence.”

It stated that such notices must be preceded by subjective satisfaction on the part of the police officer, backed by credible information or reasonable complaint. The judgment recorded that:

“No notice under Section 35(3) can be issued in a routine manner. Criminal law and its process ought not to be instrumentalized as a tool of harassment.”

Quoting the Supreme Court decisions in Arnesh Kumar v. State of Bihar and Another [(2014) 8 SCC 273] and Satender Kumar Antil v. Central Bureau of Investigation & Another [(2022) 10 SCC 51], the Court noted that strict adherence to procedural safeguards is integral to the constitutional guarantee under Article 21. It was further stated that failure to comply with Section 35 provisions would attract appropriate disciplinary or legal action.

The Court contrasted the purpose of notices issued under Section 35(3) of BNSS (which are directed at suspects) and Section 179(1) of BNSS (which apply to witnesses). The judgment clearly recorded:

“Notice under Section 35(3) of BNSS is issued to a suspect, whereas the notice under Section 179(1) of BNSS is issued to a witness.”

On the core issue of whether an advocate can be summoned by the police in relation to a case involving his clients, the Court stated:

“The power of the police under Section 179(1) of BNSS cannot be stretched to call for an advocate who is appearing for the accused in the crime to divulge communication between him and the client.”

It was observed that compelling an advocate to disclose such communication would contravene the confidentiality protected under Section 132(1) of BSA. The judgment noted:

“No advocate can be compelled to disclose any communication made to him by his client in the course of their professional relationship under Section 132(1) of BSA.”

Further, it recorded:

“The petitioner, as an advocate, has the right not to participate in the proceedings where he should divulge any communication which he had made with his client in the course of defending his client.”

The Court found no material on record to suggest that the petitioner had been involved in fabricating any documents and recorded:

“It appears that the police, by issuing Ext.P3 notice, were trying to involve the petitioner in the investigation of the crime alleged against his clients without having any material fact that he has been instrumental in making the fake documents.”

It was also held that police have no authority to summon advocates acting in their professional capacity:

“The police have absolutely no authority to issue notice under Section 35(3) of BNSS to the advocate of an accused to summon him for the purpose of an investigation involving his client.”

Though the impugned notice (Exhibit P3) was withdrawn by the police before the hearing date, the Court considered it appropriate to issue directions aimed at preventing recurrence. It recorded that the Sub Inspector had personally appeared and submitted a letter confirming withdrawal of the notice.

Nonetheless, the Court directed the Kerala State Police Chief:

“The Kerala State Police Chief is directed to give direction to all the police officers in the State to strictly comply with the statutory provisions under Section 35(3) of BNSS if the presence of any person is required in connection with a crime involving a cognizable offence.”

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It added that:

“The power given to the police under Section 35(3) is for the sake of preventing abuse of powers and cannot be used to intimidate, threaten and harass a person.”

The original petition was accordingly disposed of, noting that no further orders were required in light of the withdrawal of the contested notice.

Advocates Representing the Parties

For the Petitioners: K.R. Rajkumar, Jagadeesh Lakshman, Aromalunni M.S., R.K. Rakesh, Nandana Babu T., Sreelakshmi P.S., Nandida Sebastian, Naveen P. Mathew, S. Rajeev, V. Vinay, M.S. Aneer, Sarath K.P., Anilkumar C.R, K.S. Kiran Krishnan, Dipa V, Raajesh S. Subrahmanian, Vishnu T.C.
For the Respondents: Smt. Sreeja V., Senior Public Prosecutor

Case Title: Ajikumar K.K v. State of Kerala and Another
Neutral Citation: 2025:KER:26581
Case Number: WP(Crl.) No. 363 of 2025
Bench: Justice Dr. Kauser Edappagath

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