Lawyer Has No Unqualified Right To Continuous Presence During Entire Interrogation Under Section 38 BNSS: Supreme Court

"A plain reading of the provision makes it clear that the right guaranteed thereunder is the right to meet an advocate of choice during interrogation. It does not, by any means, contemplate the continuous, ongoing physical presence of an advocate for the entirety of each interrogation session..." Supreme Court of India, in a significant ruling dated July 27, 2026, clarified the scope of the right to counsel under Section 38 of the newly enacted Bharatiya Nagarik Suraksha Sanhita (BNSS), holding that an accused is not entitled to the continuous physical presence of a lawyer throughout an entire police interrogation.

A bench comprising Justice Vikram Nath and Justice Sandeep Mehta observed that while the presence of a lawyer is a salutary safeguard against coercion, it does not translate into an unqualified entitlement to have an advocate stationed closely at the site of questioning at all times.

The case arose from allegations of custodial death against an Inspector of Police in Vijayawada. Following his arrest by a Special Investigation Team (SIT), a Magistrate granted police remand but imposed stringent conditions, including confining the interrogation strictly within the Central Prison and mandating uninterrupted videography of all transit movements. The High Court substantially affirmed these restrictions, prompting the State to approach the Supreme Court with the grievance that such omnibus conditions rendered the statutory right to police custody entirely illusory.

The primary question before the court was whether Section 38 of the BNSS permits the continuous, ongoing physical presence of a lawyer during the entirety of a custodial interrogation. The court was also called upon to determine whether a Magistrate can place an absolute, non-extendable outer limit on police custody, and whether mandating uninterrupted videography of an accused's physical transit during investigation is legally sustainable.

Section 38 BNSS Does Not Mean Continuous Presence

Examining the statutory scheme under the new criminal procedure code, the court clarified the exact contours of an arrested person's right to legal assistance. The bench noted that while the law permits meeting a lawyer during questioning, it does not envision an advocate hovering over the entire investigative process in a manner that might impede the interrogation.

"A plain reading of the provision makes it clear that the right guaranteed thereunder is the right to meet an advocate of choice during interrogation," the bench observed. The court emphasized that the provision does not contemplate the continuous physical presence of an advocate for the entirety of each session, whatever the visual or audible distance maintained.

The court modified the lower court orders, allowing a single lawyer to remain present at the site of interrogation only where they can observe the accused, provided they remain entirely beyond hearing distance. The bench issued a strict caveat that the lawyer shall not be permitted to intervene in the process of investigation at any cost or communicate with the accused during questioning.

New Remand Window Under Section 187 BNSS Explained

Addressing the Magistrate's order that placed an absolute and non-extendable outer limit on the period of police custody, the Supreme Court highlighted a crucial legislative shift brought about by the BNSS. The court pointed out that unlike Section 167 of the erstwhile Code of Criminal Procedure, Section 187(2) and (3) of the BNSS deliberately enlarges the window during which police remand may be sought.

The bench explained that police custody, up to an aggregate of fifteen days, is now available in parts during the first forty or sixty days of the total permissible period of detention, rather than being strictly confined to the initial fifteen days of remand. An arbitrary and absolute cap imposed by a lower court strips the investigating agency of this statutory flexibility.

"This legislative change was intended precisely to meet situations, such as the present, where fresh facts, discoveries or leads may emerge during the course of investigation warranting further custodial interrogation, and an unduly rigid or premature foreclosure of that statutory window... would run counter to the object of the provision," the court stated.

Interrogation Inside Prison Frustrates Evidence Discovery

The court strongly disapproved of the directives that confined the entirety of the custodial interrogation to the Central Prison at Rajamahendravaram. Given that the dead body of the victim and crucial CCTV hard disks remained untraced, the court noted that restricting the investigating agency to a prison facility over a hundred kilometers away from the crime scene was fundamentally unjustified.

The bench reasoned that discoveries under Section 23 of the Bharatiya Sakshya Adhiniyam (formerly Section 27 of the Indian Evidence Act) require taking the accused to the actual place of discovery. Interrogating a suspect about missing evidence from a massive distance effectively paralyzes the efficacy of this statutory procedure.

Continuous Videography Of Transit Unworkable

While agreeing that CCTV documentation and audio-visual recording of actual interrogation sessions are vital constitutional safeguards, the bench struck down the High Court's mandate requiring continuous, uninterrupted videography of the accused's physical transit between locations.

Characterizing the order to record every minute of a three-hour road journey as an inflexible and totally logistical exercise, the court observed that interruptions due to signal loss, battery failure, storage limitations, or security contingencies are inherent in road travel. The court held that penalizing the investigating agency for such technical interruptions would defeat the purpose of the safeguard.

"It would be unrealistic, and self-defeating of the safeguard itself, to visit the investigating agency with the consequence of an inference of impropriety merely because of such an interruption. What the safeguard requires is that the interrogation itself... be continuously and contemporaneously recorded."

The Supreme Court ultimately allowed the State's appeal, setting aside the impractical conditions that confined the custodial interrogation to the prison. The bench granted the investigating officers unrestricted access to interrogate the accused at a designated SIT center for the remainder of the permitted fifteen-day custody period, while strictly retaining the requirements for CCTV coverage of the actual questioning and any discovery proceedings.

Date of Decision: 27 July 2026