Probe agencies can’t summon lawyers unless approved by SP, rules SC; sets aside ED summonses

Investigating agencies can’t summon lawyers in connection with advice given by them to their clients, unless it’s covered under any of the exceptions under Section 132 of the Bharatiya Sakshya Adhiniyam, (BSA) 2023 and approved by the Superintendent of Police (SP), the Supreme Court ruled on Friday.

“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 Investigating Officer (IO) 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 the Bharatiya Nagarik Suraksha Sanhita (BNSS),” a bench of CJI BR Gavai, Justice K Vinod Chandran and Justice NV Anjaria said.

Writing the judgment for the bench, Justice Chandran said, “When a summons is 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,” it said, setting aside summonses issued by ED to two lawyers.

The verdict harmonises the police’s right to probe criminal cases and advocate-client privileged relationship recognised under Section 132 of the BSA, which obliges an advocate not to disclose any professional communications.

Regarding production of a digital device under Section 94 of the BNSS, the bench introduced several safeguards as it said, “if directed by an IO, the direction shall only be to produce it (digital device) before the jurisdictional court”.

“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,” the top court said.

“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. 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 IO, if it is found to be permissible and admissible,” the bench said.

The top court had on July 13 taken suo motu cognisance of the issue in the backdrop of a controversy over ED summoning senior lawyers Datar and Venugopal, who had reportedly offered legal advice to Care Health Insurance Limited on the employee stock ownership plan given to Rashmi Saluja, former chairperson of Religare Enterprises.

The SCBA and Supreme Court Advocates-on-Record Association (SCAORA) had called it a “disturbing trend” that struck at the very foundations of the legal profession and urged the CJI to take suo motu cognisance of the matter.

The bench clarified that “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”.

“On production of such a 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,” it said.

“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.

“In a civil case, the production of documents shall be regulated by Section 165 of the BSA and Order 16 Rule 7 of the Civil Procedure Code. On production of such documents, it shall be upon the court to decide any objections with respect to the order to produce and the admissibility of the document after hearing the advocate and the party whom the advocate represents,” it said.

However, an “in-house counsel will not be entitled to the privilege under Section 132 since they are not advocates practising in courts as spoken of in the BSA,” it said.