Supreme Court: In a special leave petition raising a question of grave public importance, namely, whether and under what circumstances Investigating Agencies can directly summon a counsel representing a party in an ongoing case, the Division Bench of K.V. Viswanathan and N.K. Singh, JJ. observed that the issue, along with other related questions that may arise, required comprehensive consideration, as it directly impacts the efficacy of the administration of justice and the ability of lawyers to discharge their professional duties conscientiously and without fear.
The Bench, taking note of the serious implications, directed that the case papers be placed before the Chief Justice of India for passing such orders as he may deem appropriate.
Insofar as the present proceedings were concerned, the Court restrained the State from summoning the petitioner until further orders and granted a stay on the operation of the notice dated 24-03-2025, including any subsequent notices issued to the petitioner in the same matter.
Background
The petitioner, a practicing Advocate enrolled in the year 1997, regularly appeared before various courts across the State of Gujarat. He also held the position of President of the Vastral Advocates Association, Gujarat.
On 24-06-2024, an agreement had been executed between two individuals in connection with a loan transaction. Subsequently, on 13-02-2025, an FIR was registered under Sections 296(b) and 351(3) of the Bharatiya Nyaya Sanhita, 2023 (‘BNS’), along with Sections 40, 42(a), 42(d), and 42(e) of the Gujarat Money-Lenders Act, 2011, and Sections 3(2)(v) and 3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The petitioner, acting on behalf of his client, filed a regular bail application before the Sessions Court at Ahmedabad. Upon due consideration, the Court was pleased to grant regular bail to the accused.
While the matter stood thus, on 24-03-2025, a notice under Section 179 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’) was served upon the petitioner. The notice referred to the aforementioned FIR and stated that, to ascertain the true facts and circumstances, the petitioner was required to appear before the Assistant Commissioner of Police, within three days from the date of receipt of the notice.
The petitioner challenged the said notice before the High Court by filing a Special Criminal Application. By the impugned order, the High Court dismissed the petition after considering a report dated 11-04-2025, which stated that the petitioner had failed to respond to the summons and that, due to his non-cooperation, further investigation had stalled.
The High Court held that, since the summons had been issued under Section 179 of the BNSS in the petitioner’s capacity as a witness, and as the authorities were acting within their powers to investigate, there was no violation of the petitioner’s fundamental rights.
Aggrieved by the order, the petitioner filed the present Special Leave Petition.
Contentions
The petitioner contended that he was neither an accused nor a witness in the case and was merely discharging his professional duties as the Advocate for the accused. It was submitted that the FIR pertained solely to a dispute between the complainant and the accused, and the petitioner had no involvement beyond his role as legal counsel.
According to the Petitioner, all communications between an Advocate and their client are privileged under Section 132 of the Bharatiya Sakshya Adhiniyam, 2023 (‘BSA’) and, therefore, cannot be the subject of any enquiry under Section 179 or any other provision of the BNSS, 2023.
It was further submitted that Advocates are bound by their professional obligation to maintain the confidentiality of client communications and legal advice rendered. Thus, permitting investigating or prosecuting agencies to summon advocates who are engaged as legal counsel or have advised a party would violate the rights of advocates and pose a serious threat to the independence and integrity of the legal profession.
Analysis and Decision
The Court observed that prima facie, there was merit in the petitioner’s submission. It noted that the legal profession forms an integral part of the administration of justice, and that counsel engaged in the practice of law, in addition to enjoying the fundamental rights under Article 19(1)(g) of the Constitution of India, are also entitled to certain rights and privileges—both by virtue of their professional status and under statutory provisions such as Section 132 of the BSA.
The Court emphasised that allowing Investigating Agencies, Prosecuting Authorities, or the Police to directly summon defence counsel or legal advisors involved in a given case would not only compromise the autonomy of the legal profession but could also amount to a direct threat to the independence of the administration of justice.
In view of the significant issue arising in the present case, the Court found it appropriate to issue notice to the Attorney General for India, Solicitor General of India, the Chairman, Bar Council of India, as well as, for the time being, to the President/Executive Committee of the Supreme Court Bar Association and the President/Executive Committee of the Supreme Court Advocates-on-Record Association, to assist the Court in addressing the legal questions involved. Notice was ordered to be issued accordingly.
The Court framed the following questions for consideration:
- When an individual is associated with a case solely in the capacity of a lawyer advising a party, can the Investigating Agency, Prosecuting Agency, or Police summon such a lawyer for questioning directly?
-
Assuming that the Investigating or Prosecuting Agency contends that the individual’s role extends beyond legal representation, should such summoning be permitted directly, or should it be subject to judicial oversight—particularly in cases that meet an exceptional threshold?
The Court observed that these issues, and others that may arise would need to be addressed comprehensively, as they directly concern the efficacy of the administration of justice and the ability of lawyers to discharge their duties conscientiously and without fear. Subjecting legal counsel to the “beck and call” of investigating authorities, prima facie, appeared untenable and raised serious concerns about the independence of the legal profession.
Given the importance of the matter, the Court directed that the case papers be placed before the Chief Justice of India for passing such orders as he deemed appropriate.
As regards the present proceedings, the Court restrained the State from summoning the petitioner until further orders and granted a stay on the operation of the notice dated 24-03-2025, including any subsequent notices issued to the petitioner in the same matter.
The Court further directed that notice be issued to the respondents, along with notices to the authorities. The matter was directed to be placed before the Chief Justice of India for appropriate directions.
[Ashwinkumar Govindbhai Prajapati v. State of Gujarat, Petition(s) for Special Leave to Appeal (Crl.) No(s).9334/2025, decided on 25-06-2025]
Advocates who appeared in this case :
For Petitioner(s) :Mr. Siddharth H. Dave, Adv. Mr. Prafull Bhardwaj, Adv. Mr. Maulik Soni, Adv. Mr. Siddhant Sharma, AOR
Buy Constitution of India HERE
