Supreme Court Clarifies BNSS Section 38: Advocate of Accused Cannot Remain Present Throughout Police Interrogation
- Kaustav Chowdhury
- Jul 28
- 4 min read
On July 27, 2026, the Supreme Court of India, in State of Andhra Pradesh v. Suda Suresh Veera Venkata Naga Raju (2026 LiveLaw SC 722), clarified the scope of Section 38 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. A bench comprising Justices Vikram Nath and Sandeep Mehta held that while an arrested person is entitled to meet an advocate of their choice during interrogation, this right does not extend to having the advocate continuously present throughout the interrogation process. The ruling draws an important distinction between the words "during" and "throughout" as used in the provision, carrying significant implications for criminal defence practice across India.
Background of the Case
The case originated from a custodial death in Andhra Pradesh. A suspended police inspector was accused of involvement in the death, and the investigating agency sought police custody for further interrogation. The trial court granted custody but imposed a series of conditions, including a requirement that two advocates nominated by the accused be permitted to remain present at any point during the interrogation sessions.
The Andhra Pradesh High Court largely upheld these conditions on appeal. The State of Andhra Pradesh then approached the Supreme Court, arguing that these conditions were unworkable and exceeded the scope of Section 38 of the BNSS. Courts routinely impose conditions when granting police custody or bail, including restrictions on travelling abroad while on bail and requirements for periodic reporting. However, the specific question of whether an advocate could remain continuously present during interrogation had not previously been addressed by the apex court.
What Section 38 BNSS Provides
Section 38 of the BNSS states that when any person is arrested and interrogated by the police, the arrested person shall be entitled to meet an advocate of their choice during interrogation, though not throughout interrogation. This provision has no direct counterpart in the erstwhile Code of Criminal Procedure, 1973, and represents a new statutory recognition of the arrested person's right to legal consultation during the interrogation process.
The provision builds upon the constitutional guarantee under Article 22(1) of the Constitution, which ensures that every arrested person shall not be denied the right to consult and be defended by a legal practitioner of their choice. Courts across India have upheld this fundamental right in various contexts, including in cases where violations of Article 22(1) led to the grant of bail.
The Supreme Court's Interpretation
The Supreme Court drew a clear distinction between the words "during" and "throughout" as used in Section 38. The bench held that the provision guarantees the arrested person the right to meet and consult with an advocate at intervals during the interrogation process, but it "does not, by any means, contemplate the continuous, ongoing physical presence of an advocate for the entirety of each interrogation session."
The Court reasoned that allowing an advocate to remain physically present throughout interrogation would undermine the very purpose of custodial questioning, which requires a degree of direct engagement between the investigating officer and the accused. The bench observed that an advocate's continuous presence could have a chilling effect on the investigation and potentially influence the responses of the accused. While the conditions allowing the accused to nominate advocates and regulating their presence at the interrogation site were considered "unobjectionable" and "salutary," the direction permitting an advocate's presence at any given point of time during the interrogation, if interpreted as conferring an absolute right to remain present throughout, travelled beyond the scope of Section 38.
Conditions Retained and Modified
While modifying the advocate-presence condition, the Supreme Court did not strip away all safeguards for the accused. The bench retained the requirement that the interrogation be videographed, though it clarified that continuous transit videography was not necessary. The Court also modified the condition that restricted interrogation to the Central Prison, holding it to be unworkable, and permitted the investigating agency to conduct interrogation at any designated police facility of its choice.
The bench directed the investigating team to ensure the safety and physical well-being of the accused throughout the custody period. This approach reflects the Court's broader effort to balance the rights of the accused with the legitimate needs of the investigation, a balance visible in recent decisions such as the Supreme Court's proposals for special courts in Manipur violence cases and the procedural framework for filing applications for discharge under BNSS.
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Key Takeaways
The Supreme Court's ruling in State of Andhra Pradesh v. Suda Suresh Veera Venkata Naga Raju establishes that Section 38 BNSS creates a qualified right, not an absolute one. An arrested person can meet and consult an advocate during interrogation, but the advocate cannot insist on remaining physically present throughout. Courts may impose safeguards such as videography and periodic advocate access, but conditions that amount to an advocate's uninterrupted presence exceed the statutory mandate. The decision also reaffirms that conditions imposed during police custody must be practical and must not obstruct the investigation process. This ruling will likely serve as the leading authority on the interpretation of Section 38 BNSS going forward.
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