Section 38 BNSS

Source: Supreme Court

Why in News? 

A Division Bench of Justice Vikram Nath and Justice Sandeep Mehta, in State of Andhra Pradesh v. Suda Suresh Veera Venkata Naga Raju (2026), held that Section 38 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) guarantees an arrested person the right to meet an advocate of his choice during interrogation, but does not extend to the advocate remaining continuously and physically present for the entire duration of each interrogation session. 

What was the Background of State of Andhra Pradesh v. Suda Suresh Veera Venkata Naga Raju (2026) Case? 

• The High Court, while dealing with the matter concerning the respondent-accused's police custody, had imposed a condition directing the prosecution to nominate two advocates who would remain present at the prison during the accused's police custody. 
• The High Court had further permitted one of the two nominated advocates to remain present "at any given point of time" during the accused's interrogation. 
• Aggrieved by this direction, the State of Andhra Pradesh approached the Supreme Court, contending that the condition was excessive in nature and would create practical hurdles in the custodial investigation of the accused. 
• The State argued that a standing, continuous presence of an advocate throughout interrogation went beyond what the law permits and would compromise the effectiveness of the investigative process. 

What were the Court's Observations? 

• On the scope of Section 38 BNSS: The Court held that a plain reading of Section 38 BNSS shows that the right conferred on an arrested person is the right to meet an advocate of his choice during interrogation, and that the provision does not confer an unqualified entitlement to the advocate's continuous, ongoing physical presence for the entirety of each interrogation session. 
• On the High Court's direction: The Court found that if the High Court's direction permitting the advocate's presence "at any given point of time during the interrogation" were construed as granting a right to uninterrupted continuous presence, such a construction would exceed what Section 38 BNSS itself contemplates. 
• On the State's apprehension: Agreeing with the State's submission, the Court held that the conditions as originally framed by the High Court would create practical impediments to a custodial investigation and were accordingly excessive. 
• On the modified direction: While upholding the substance of the High Court's direction permitting an advocate's presence, the Court modified it, directing that the advocate would only be permitted to remain present within the site of interrogation, positioned so that he could see the accused, rather than being continuously and physically present alongside him throughout the interrogation. 

What is Section 38 of BNSS? 

Section 38 BNSS preserves the right of an arrested person to consult and be defended by a legal practitioner of his choice and further recognises the right to meet an advocate of choice during the course of interrogation. 

• Nature of the right: The right under Section 38 BNSS is a right to meet an advocate during interrogation, and not a right to the advocate's continuous, unbroken physical presence throughout the interrogation process. 
• Rationale: The provision is intended to safeguard the arrested person against custodial abuse and to secure access to legal advice, while at the same time preserving the efficacy of custodial interrogation as an investigative tool available to the police. 

Note: Section 38 BNSS corresponds to Section 41D of the erstwhile Code of Criminal Procedure, 1973, which was inserted by the Code of Criminal Procedure (Amendment) Act, 2010, and continues the same underlying safeguard recognised by the Supreme Court in D.K. Basu v. State of West Bengal (1997).