S.35(3) BNSS | 'What Power Do You Have?': Kerala HC Orally Reprimands Sub-Inspector For Summoning Accused's Lawyer For Questioning In Probe

Pursuant to the order of the Court on Monday, the Sub-Inspector of Njarakkal police station appeared before the Court today.

When the matter was taken up in the morning, Justice Kauser Edappagath questioned the authority of the Sub-Inspector for issuing a notice under Section 35(3) BNSS to the lawyer, which the court said is an officer of the Court. The Court clarified that a notice under Section 35 (3) can only be issued to a person when there is a reasonable suspicion that he has committed a cognizable offence.

The court orally said, “…He is an officer like you, an officer of this Court. How can you issue a 35 (3) notice to a lawyer who appeared for a client? If compensation is claimed, you will have to pay compensation. This is article 21 violation. What power do you have?...”

The Court further noted that notice was issued to the lawyer because the accused complained against the Sub-Inspector before the Magistrate Court alleging that he was tortured in the police station.

The Court further orally said that it would issue a detailed order in this matter, setting out directions to prevent the summoning of lawyers and to safeguard privileged communication. The Court also directed the Sub-Inspector to communicate with the lawyer and resolve the issue, warning him of the consequences of his action.

Thereafter, as the court was about to rise for lunch, the Sub-Inspector handed over a letter before the court, submitting that the notice issued to the lawyer has been withdrawn. 

As per the facts, a case was registered against a husband and wife who are from West Bengal alleging that they are Bangladeshi nationals and do not have proper documents to prove their citizenship, adding that their Aadhar, Election Identity cards, driving lincense etc are all forged.

The police had arrested the husband, illegally detained him in the station and allegedly tortured him while in police custody. The wife was arrested the next day and they were both produced before the Magistrate Court. They have been in judicial custody since February 6. 

It is stated that the police issued a notice under Section 94 of the BNSS to the lawyer, directing the submission of the accused's Aadhaar card and other documents before the police. However, before the receipt of his notice, the lawyer had already submitted all the documents before the Magistrate Court which was entrusted to him by his clients.

The lawyer's plea states that subsequently, a notice under Section 35 (3) BNSS was issued to him, stating that as part of the investigation in the case the lawyer has to be questioned.

The lawyer in his plea submitted that he has only acted in the interests of his clients and the notice under Section 35 (3) is illegal and not maintainable. He submitted that all documents were submitted before the Magistrate Court as per the direction of his client on the apprehension that if the documents are given to the police will not be kept safely. 

The lawyer further stated that the police has no authority to question him as a witness in an investigation involving his clients. It is also stated that the communication between him and his clients are in professional capacity and is confidential and cannot be disclosed.

The matter is next listed on March 27. 

Plea has been moved by Advocates S Rajeev, K.R.Rajkumar, Jagadeesh Lakshman, Aromalunni M.S., R.K.Rakesh, Nandana Babu T., Sreelakshmi P.S., Nandida Sebastian, Naveen P. Mathew

Case Title: Ajikumar K K v State of Kerala

Case No: WP (Crl) 363/2025