Ajikumar K.K vs The State Of Kerala

2025:KER:26581

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH

THURSDAY, THE 27TH DAY OF MARCH 2025 / 6TH CHAITHRA, 1947

WP(CRL.) NO. 363 OF 2025

PETITIONER:

AJIKUMAR K.K AGED 52 YEARS, ADVOCATE, S/O KARUNAKARAN PILLAI K, KUNDOOR, CHENGAMANAD POST, NEAR ST ANTONYS CHURCH, CHENGAMANAD, KUNNUKARA, ERNAKULAM, PIN - 683578 BY ADVS. K.R.RAJKUMAR JAGADEESH LAKSHMAN AROMALUNNI M.S. R.K.RAKESH NANDANA BABU T. SREELAKSHMI P.S. NANDIDA SEBASTIAN NAVEEN P. MATHEW S.RAJEEV(K/000249/1993) V.VINAY(K/355/2009) M.S.ANEER(K/644/2013) SARATH K.P.(K/001467/2021) ANILKUMAR C.R.(K/001190/2020) K.S.KIRAN KRISHNAN(K/3514/2022) DIPA V.(K/003785/2024) RAAJESH S.SUBRAHMANIAN(K/396/2004) VISHNU T.C.(K/326/2019) RESPONDENTS:

1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY, DEPARTMENT OF HOME, SECRETARIAT, W.P.(Crl.) No. 363 OF 2025

..2..

2025:KER:26581

THIRUVANANTHAPURAM, PIN - 695001

2 THE STATION HOUSE OFFICER NJARAKKAL POLICE STATION, NJARAKKAL, ERNAKULAM DISTRICT, PIN - 682505

SMT.SREEJA V., SR. PP

THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 27.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(Crl.) No. 363 OF 2025

..3..

2025:KER:26581

"C.R."

JUDGMENT

The petitioner, a practising advocate, was served with a

notice under Section 35(3) of the Bharatiya Nagarik Suraksha

Sanhita, 2023 (for short 'BNSS'), calling upon him to appear

before the investigating officer in a crime in which he

represented the accused at the Magistrate Court in a hearing

on the bail application - a strange procedure unheard of in

criminal investigation.

2. The Njarakkal Police registered a crime as Crime

No.157 of 2025 against a husband and wife, alleging that

they are Bangladeshi nationals and do not have proper

documents to prove their citizenship. It is alleged that the

couple fabricated and forged the documents such as their

Aadhar Cards, Election Identity Cards, Driving Licence etc., to

falsely establish their Indian citizenship and thus committed W.P.(Crl.) No. 363 OF 2025

..4..

2025:KER:26581

the offences punishable under Sections 336(2) and 340(2) of

the Bharatiya Nyaya Sanhita, 2023 (for short 'BNS'), as well

as Sections 14A, 14(b) and 14(c) of the Foreigners Act. The

petitioner filed a bail application for the accused before the

Judicial First-Class Magistrate Court, Njarakkal. The bail

application was dismissed.

3. According to the petitioner, Aadhar Cards, Election

Identity Cards, Driving Licence etc., of his clients were

handed over to him by his clients to produce before the court.

Accordingly, he produced 20 documents in originals, including

the documents mentioned above with a memo before the

court on 15.02.2025. On the previous day, i.e., on

14.02.2025, the Inspector of Police, Njarakkal Police Station,

issued Ext.P1 notice under Section 94 of BNSS to the

petitioner, calling upon him to produce the documents before

the police on 17.02.2025 at 10.00 a.m. The petitioner gave

Ext.P2 reply on 17.02.2025 to Ext.P1 notice stating that he

had already produced all the documents before the court. W.P.(Crl.) No. 363 OF 2025

..5..

2025:KER:26581

Thereafter, the Sub Inspector of Police, Njarakkal Police

Station, who is the investigating officer of Crime No.157 of

2025, issued Ext.P3 notice under Section 35(3) of BNSS to

the petitioner to appear before him at the police station in

order to question him as part of the investigation in Crime

No.157 of 2025. It is also stated in the notice that if the

petitioner does not comply with the direction, he will be

arrested in terms of the sub-sections (5) & (6) of Section 35.

Being aggrieved by Ext.P3 notice, the petitioner has

approached this Court to quash the same.

4. I have heard Sri. S. Rajeev, the learned counsel for

the petitioner and Smt.V.Sreeja, the learned Senior Public

Prosecutor.

5. The learned counsel for the petitioner submitted

that Ext.P3 notice issued by the Sub Inspector of Police,

Njarakkal Police Station, is ultra vires in character, illegal and

sheer abuse of the process of law. The learned counsel W.P.(Crl.) No. 363 OF 2025

..6..

2025:KER:26581

further submitted that the petitioner has only acted in the

best interest of his clients, and the police have no authority

to summon the petitioner in connection with the investigation

of a case wherein his clients were accused. The counsel also

submitted that the issuance of Ext. P3 notice to the petitioner

was retaliatory since his client/accused made a complaint

before the Magistrate against the Sub Inspector alleging

custodial torture. The Advocates Act, 1961 and Article 19(1)

(g) of the Constitution of India protect an advocate's right to

practice and the police's action violated confidentiality under

Section 132(1) of the Bharatiya Sakshya Adhiniyam, 2023

(for short, 'BSA'), added the Counsel.

6. In the notice issued by respondent No.2 to the

petitioner under Section 94 of the BNSS, the petitioner was

directed to produce the Aadhaar Card, other documents etc.,

before the police. However, before the receipt of the said

notice, the petitioner had already submitted all those W.P.(Crl.) No. 363 OF 2025

..7..

2025:KER:26581

documents before the Court. The petitioner gave Ext.P2 reply

to respondent No.2 stating all these facts on 17.02.2025.

However, subsequently, Ext.P3 notice under Section 35(3) of

BNSS was issued to him stating that, as part of the

investigation, he has to be questioned, failing which, the

consequences, including his arrest, would follow.

7. Section 35 of BNSS outlines the circumstances

under which police can arrest a person without a warrant for

cognizable offences and mode of issuance of notice in case

his arrest is not required. Sub-section (3) of Section 35,

which is relevant for the purpose of this case, provides that

the police officer shall, in all cases where the arrest of a

person is not required under sub-section (1), issue a notice

directing the person against whom a reasonable complaint

has been made, or credible information has been received, or

a reasonable suspicion exists that he has committed a

cognizable offence, to appear before the officer or at a place W.P.(Crl.) No. 363 OF 2025

..8..

2025:KER:26581

specified in the notice. A reading of the said provision makes

it clear that 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. In other words,

before issuing a notice to a person under sub-section (3) of

Section 35, the police officer must have subjective

satisfaction that the person against whom the notice is to be

issued has committed a cognizable offence. A notice under

Section 35(3) is issued to an accused or suspect of

attendance in lieu of arrest. The police officer has a duty to

apply his mind to the case before him and ensure that the

conditions in Section 35 of BNSS are met before effecting

arrest under sub-section (1) or issuing notice under sub-

section (3) in lieu of arrest. 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. In Arnesh Kumar v. State of Bihar and Another

[(2014) 8 SCC 273], the Supreme Court has emphasized that W.P.(Crl.) No. 363 OF 2025

..9..

2025:KER:26581

the investigating agencies and their officers are duty-bound

to comply with the mandate of Section 41 and 41 A of Cr.PC

(Section 35(1) and (3) of BNSS). In Satender Kumar Antil v.

Central Bureau of Investigation & Another [(2022) 10 SCC

51], the Supreme Court reiterated the importance of doing so

and held that any dereliction on the part of the police officers

to comply with the mandate of those provisions would be met

with appropriate action. It was observed that Sections 41 and

41 A of Cr.P.C are facets of Article 21 of the Constitution.

8. In Ext. P3 notice, it has been stated that the police

were convinced that the petitioner has to be questioned to

ascertain certain facts and circumstances as part of the

investigation in Crime No.157 of 2025 of Njarakkal Police

Station. As per Section 179(1) of BNSS (Section 160(1) of

Cr.P.C), any police officer making an investigation has the

power to require the attendance before himself of any person

who appears to be acquainted with the facts and W.P.(Crl.) No. 363 OF 2025

..10..

2025:KER:26581

circumstances of the case. 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. Here Ext. P3

notice was issued under Section 35(3) of BNSS.

9. While the police can issue a summons to a suspect

or witness, they cannot summon an advocate to the police

station in his professional capacity. 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.

Summoning an advocate representing his client potentially

infringes the client's right to represent and violates the

constitutional rights of the legal practitioners besides

impinging upon the stature of an advocate.

10. As rightly argued by the learned counsel for the

petitioner, it appears that the police, by issuing Ext.P3 notice,

were trying to involve the petitioner in the investigation of W.P.(Crl.) No. 363 OF 2025

..11..

2025:KER:26581

the crime alleged against his clients without having any

material fact that he has been instrumental in making the

fake documents. Ext.P3 notice issued by the police is, in one

way, asking the petitioner to be present before the police to

be interrogated regarding the information, if at all any, with

the petitioner, which has been communicated between his

client and himself in his professional capacity. It is a

privileged communication protected under Section 132 (1) of

BSA. 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.

The said provision protects the confidentiality of

communication between an advocate and his client. 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.

W.P.(Crl.) No. 363 OF 2025

..12..

2025:KER:26581

11. In the criminal justice system, the police and the

defence advocate play a pivotal role. While the police

investigate the crimes, the defence advocate ensures fair

legal representation. As part of the investigation, the police

have wide powers to summon and interrogate witnesses and

suspects to obtain information related to the investigation.

However, the said power should not be used as a weapon for

the selective harassment of the citizens. As stated already,

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. Nor do they have any power to summon an advocate

to disclose privileged client communication. The action on the

part of the police in issuing Ext.P3 notice is an infringement

of the petitioner's right to practice the profession as

envisaged in the Advocates Act, 1961 and Article 19(1)(g) of

the Constitution of India. Ext.P3 is, thus, illegal, ultra vires in

character and cannot be sustained.

W.P.(Crl.) No. 363 OF 2025

..13..

2025:KER:26581

12. Pursuant to the order of this Court, the Sub

Inspector of Police, Njarakkal Police Station appeared before

me yesterday. He submitted that Ext.P3 notice issued was

already withdrawn. The Sub Inspector of Police has also

handed over a copy of the letter withdrawing Ext.P3 before

me. Since Ext.P3 has already been withdrawn, the prayer

sought to quash the same need not be granted.

13. In Arnesh Kumar (supra) and Satender Kumar Antil

(supra), the Supreme Court has given direction to all the

State Governments to instruct the police officers to strictly

follow Section 41 and 41A of Cr.P.C. (Section 35(1) and (3) of

BNSS) while effecting arrest of a person. Needless to say, the

police officers who exercise the power under Section 35(3) of

BNSS are bound to act in strict compliance with the

provisions of the Statute. Under no circumstances will the

police have any authority to interfere with the freedom of any

individual, much less an advocate of an accused, by serving W.P.(Crl.) No. 363 OF 2025

..14..

2025:KER:26581

notice under Section 35(3). 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 (Unnimon K.A. v. State of Kerala and Others ,

2020 (6) KHC 53). 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.

The original petition is disposed of as above.

Sd/-

DR. KAUSER EDAPPAGATH JUDGE AS/APA W.P.(Crl.) No. 363 OF 2025

..15..

2025:KER:26581

APPENDIX OF WP(CRL.) 363/2025

PETITIONER EXHIBITS

EXHIBIT P1 THE TRUE COPY OF THE NOTICE ISSUED BY THE INSPECTOR/SHO, NJARAKKAL POLICE STATION TO THE PETITIONER DATED 14-02-2025

EXHIBIT P2 THE TRUE COPY OF THE REPLY TO EXHIBIT P1 NOTICE GIVEN BY THE PETITIONER TO THE INSPECTOR/SHO OF NJARAKKAL POLICE STATION DATED 17-02-2025

EXHIBIT P3 THE TRUE COPY OF THE NOTICE ISSUED BY THE SUB INSPECTOR OF POLICE, NJARAKKAL POLICE STATION DATED 19-03-2025 (DATE OF THE NOTICE WRONGLY SHOWN AS 19-03-2024)

EXHIBIT P4 THE TRUE COPY OF THE SWORN STATEMENT OF MR.

DASHARATH BANERJEE U/S 223 OF BNSS, 2023 IN CMP 263/2025 BEFORE THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT, NJARAKKAL

EXHIBIT P5 THE TRUE COPY OF THE STATEMENT OF 1ST ACCUSED RECORDED IN CMP NO.263 OF 2025 OF JFCM, NJARAKKAL IN CRIME NO. 157 OF 2025 OF NJARAKKAL POLICE STATION DATED 07.02.2025

EXHIBIT P6 THE TRUE COPY OF THE STATEMENT OF THE 1ST ACCUSED IN CRIME NO. 157 OF 2025 OF NJARAKKAL POLICE STATION BEFORE THE JFCM, NJARAKKAL DATED 20.03.2025

EXHIBIT P7 THE TRUE COPY OF THE VAKALATH SUBMITTED BY THE PETITIONER ON 07.02.2025