Section 38 of the BNSS

Source: Allahabad High Court 

Why in News? 

A bench of Justice Atul Sreedharan and Justice Achal Sachdev of the Allahabad High Court decided Ravi Chaurasiya & Anr. v. State of U.P. & Ors. (2026). The Court held that under Section 38 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the police must inform a suspect of his right to have a counsel of his choice present during interrogation, even before he is formally arrested.  

• The Court also held that a later formal arrest and remand cannot cure an earlier illegal detention. It allowed the habeas corpus petition, directed the petitioner's release and awarded ₹30,000 as compensation. 

What was the Background of Ravi Chaurasiya & Anr. v. State of U.P. & Ors. (2026) Case? 

• A habeas corpus petition was filed alleging illegal detention of Ravi Chaurasiya by the Soraon Police, Prayagraj. 
• The sequence of events was as follows: 

• The High Court called for CCTV footage from the police station. 
• The counter affidavit filed by the Station House Officer (SHO) and the Investigating Officer clearly admitted that the petitioner was in custody. 
• The SHO said that the failure to record the petitioner's presence in the General Diary was an "inadvertent mistake." 
• The questions before the Court were:  
  • Whether the petitioner's detention before his formal arrest was illegal, and whether the later arrest and remand could cure it. 
  • Whether the right to counsel during interrogation under Section 38 BNSS applies to a suspect who has not been formally arrested. 

What were the Court's Observations? 

On the right to counsel under Section 38 BNSS: 

• Section 38 BNSS gives an arrested person the right to meet an advocate of his choice during interrogation, though not throughout the interrogation. 
• The provision cannot be read in a way that lets the police avoid this safeguard simply by postponing formal arrest. 
• The Court would not allow a practice in which the police:  
  • Avoid arresting a suspect, 
  • Call him to the police station and interrogate him for 5–6 hours, and 
  • Use his self-incriminatory statements, made without a counsel, to make him an accused. 
• Such a practice would violate his right against self-incrimination. 
• The police's duty under Section 38 BNSS also arises when a suspect is taken to the police station for interrogation. 
• The suspect must be informed, even before he is arrested or made an accused, of his right to have a counsel of his choice present at the police station during interrogation. 
• This does not mean that the counsel must be present throughout the interrogation. 

On the consequence of not informing the suspect: 

• The police cannot interrogate a person without telling him of his right to counsel and then rely on what he says to make him an accused. 
• Failure to inform the suspect of this right vitiates all information he gives, especially self-incriminatory statements. 

On the illegal detention: 

• The Court rejected the SHO's explanation of an "inadvertent mistake." It held that not recording the petitioner's presence in the General Diary was a "conscious omission" meant to escape the charge of illegal detention. 
• The petitioner was kept in police custody for more than 24 hours without being produced before a Magistrate. 
• Applying the "Fruit of the Poisonous Tree" doctrine in the context of Articles 21 and 22 of the Constitution, the Court held that the later formal arrest and remand could not legitimise the initial illegal detention. 

Conclusion: 

• The Court allowed the habeas corpus petition. 
• It directed the petitioner's release, if he was not wanted in any other case. 
• It awarded ₹30,000 as compensation for the illegal detention. 

What is Section 38 of the BNSS? 

About: 

• Section 38 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the right of an arrested person to meet an advocate of his choice during interrogation. 
• It corresponds to Section 41D of the Code of Criminal Procedure, 1973, which was inserted by the Code of Criminal Procedure (Amendment) Act, 2008. 
• It gives statutory form to the constitutional right to consult a legal practitioner. 

Provision: 

• When any person is arrested and interrogated by the police, he is entitled to meet an advocate of his choice during interrogation, though not throughout interrogation. 

Interpretation in Ravi Chaurasiya (2026): 

• The safeguard extends to a suspect called to the police station for interrogation, even if he has not been formally arrested. 
• The police must inform the suspect of this right. 
• Failure to do so vitiates the statements obtained, especially self-incriminatory ones. 

Constitutional and Statutory Safeguards Involved 

What is the Doctrine of "Fruit of the Poisonous Tree"? 

• The doctrine originated in United States law. Under it, evidence derived from an illegal act, such as an unlawful search, arrest or interrogation, is treated as tainted and is excluded. 
• The "tree" is the illegal act, and the "fruit" is whatever flows from it. 
• Indian courts have generally not adopted the doctrine as a strict rule for excluding evidence. In Pooran Mal v. Director of Inspection (1974), the Supreme Court held that evidence obtained through an illegal search is not inadmissible for that reason alone.