Section 38 BNSS: Supreme Court Says Lawyer Cannot Remain Present Throughout Police Interrogation

The Supreme Court has held that Section 38 of the Bharatiya Nagarik Suraksha Sanhita (BNSS)[earlier Section 41D of the CrPC] gives an arrested person the right to meet an advocate of their choice during interrogation, but does not entitle the lawyer to remain physically present throughout the entire questioning.

Court also clarified that while safeguards against custodial abuse must be protected, they cannot be so restrictive that they make police investigation impractical or defeat the very purpose of police custody.

Section 38 of the BNSS provides that when any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation.

A Bench of Justices Vikram Nath and Sandeep Mehta modified an Andhra Pradesh High Court order that had directed the continuous presence of a lawyer during interrogation, confined custodial questioning to a prison, and required videography of every movement of the accused police inspector in a custodial death case being investigated by a Special Investigation Team (SIT).

Scope of Section 38, BNSS

The Supreme Court held that although the high court's direction permitting a lawyer's presence was "salutary", interpreting it to mean that an advocate could remain present throughout every interrogation session would go beyond what Section 38, BNSS actually provides.

The Bench observed:

"Section 38... grants a right of arrested person to meet an advocate of his choice during interrogation, but it does not, by any means, contemplate the continuous, ongoing physical presence of an advocate for the entirety of each interrogation session, whatever be the visual or audible distance maintained."

Accordingly, Court retained the safeguard with a modification. It held that the lawyer may remain present at the interrogation site in a position where the accused is visible to him, but cannot intervene in the investigation or insist on remaining continuously present during questioning.

Supreme Court on police custody and investigation

Court said the statutory scheme governing police custody is intended to enable investigators to pursue fresh leads and discoveries that emerge during the course of investigation.

It observed that imposing rigid restrictions on where and how interrogation must take place defeats that objective.

"The power to seek police custody under the statutory scheme is designed to allow for fresh facts and discoveries to emerge during the investigation period. An unduly rigid foreclosure of this window by imposing restrictive conditions on the location and manner of interrogation runs counter to the legislative intent and impairs the investigative process," the Bench said.

Accepting the State's contention, Court held that the high court's conditions, particularly confining interrogation exclusively to prison premises and mandating continuous transit videography, were unworkable and hindered the investigation.

Allowing the State's appeal, the Bench observed:

"We feel that the apprehension expressed by the investigating agency regarding the hurdles created in effective custodial investigation thereby frustrating the entire process is realistic and justified."

Why did the Supreme Court modify the videography directions?

Court agreed that videography of interrogation is an important safeguard against allegations of custodial misconduct. However, it held that requiring continuous recording of every movement of the accused, including the nearly three-hour journey each way between Central Prison, Rajamahendravaram and Vijayawada, was impractical.

The Bench noted that interruptions due to road travel, poor network, battery limitations, storage constraints, recording equipment failures or security concerns are natural and unavoidable. It would therefore be unrealistic to draw adverse inferences against the investigating agency merely because such interruptions occurred.

According to the Court, what must be continuously recorded is the interrogation itself, namely the questioning and interaction between the investigators and the accused. The requirement cannot be stretched to include every minute of transit, which is merely a logistical exercise.

Accused's safety to remain protected

The respondent-accused had argued that his life would be at risk if he was interrogated at a police facility in Vijayawada because, during his tenure as a police inspector, he had arrested persons who are presently lodged there.

Court held that this concern could be adequately addressed by directing that interrogation outside the Central Prison, Rajamahendravaram be conducted only at the SIT's designated interrogation centre or another secure police facility.

It also retained the high court's direction making the investigating officer, Additional Superintendent of Police, members of the SIT and the jail superintendent jointly responsible for ensuring the accused's safety.

The Bench noted that the high court had already directed that the accused should not be subjected to threats, inducement, coercion, physical assault or third-degree methods during custodial interrogation.

It further observed that these protections are inherent under Article 21 of the Constitution, and the SIT remains duty-bound to ensure the accused's safety and physical well-being throughout the period of police custody.

Background of the case

The appeal arose from a case involving Suda Suresh Veera Venkata Naga Raju, a police inspector accused in the alleged custodial death of Gade Sai Krishna.

According to the prosecution, Sai Krishna was illegally confined, subjected to custodial torture, which allegedly resulted in his death, and his body was subsequently made to disappear.

Following his arrest by the SIT on June 23, 2026, the accused was remanded to judicial custody at Central Prison, Rajamahendravaram.

The magistrate granted the SIT eight days' police custody but imposed several conditions, including restricting interrogation to the prison premises. The Andhra Pradesh High Court only partly modified those conditions.

Challenging the remaining restrictions, the State argued that they severely hampered the investigation, including efforts to reconstruct the crime scene and recover the deceased's body.

Accepting these submissions, the Supreme Court set aside the condition confining interrogation exclusively to Central Prison, Rajamahendravaram, and held that the Investigating Officer would have unrestricted access to the accused during the seven-day police custody period.

Court clarified that the SIT may interrogate the accused at its designated interrogation centre or any equivalent secure police facility in Vijayawada. It also reiterated that the SIT must conduct a fair, impartial and scientific investigation strictly in accordance with law, uninfluenced by any observations made in the proceedings.

Case Title: State of Andhra Pradesh Vs Suda Suresh Veera Venkata Naga Raju

Bench: Justices Vikram Nath and Sandeep Mehta

Date of Judgment: July 27, 2026