BREAKING| No Summons To Advocates Except Under S.132 BSA Exceptions; Prior Approval Of Superior Officer Mandatory: Supreme Court Issues Directions

The Supreme Court on Friday (October 31) issued a set of directions to ensure that investigating agencies do not arbitrarily issue summons to advocates in criminal cases over the legal advice given by them to the accused.

While the Court refrained from issuing any guidelines and ruled out the need for Magisterial supervision before the issuance of summons, it issued certain directions. "We have tried to harmonise the evidentiary rule with the procedural rule and issued the following directions," Justice Vinod Chandran said. Directions 1. Section 132 of the Bharatiya Sakshya Adhiniyam is a privilege conferred on the client obliging the advocate not to disclose any professional communications made in confidence. Investigating officers in the criminal cases, Station House Officers conducting preliminary enquiry in a cognizable offence, shall not issue a summons to an advocate who represents the accused to know the details of the case, unless it is covered under any of the exceptions under Section 132 BSA. When a summons is so issued to the advocate under any of the exceptions, it shall exclusively specify the facts on which the exception is sought to be relied upon, and shall also be issued with the consent of a 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.

2. A summons so issued shall be subject to judicial review at the instance of the advocate or the client under Section 528 BNSS. 3. The advocate on whom there is an obligation of non-discolosure is one who is engaged in a litigation or in a non-litigatious or a pre-litigation matter. 4. Production of documents from the possession of an advocate of the client will not be covered by the privilege under Section 132, either in a civil case or a criminal case. 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 document shall be regulated by Section 165 of BSA and Order 16 Rule 7 of the Civil Procedure Code. On production of 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.