Section 38 BNSS: Right of arrested person to meet an advocate of his choice during interrogation (Formerly Section 41D CrPC)

Section 38 of Bharatiya Nagarik Suraksha Sanhita, 2023: Right of arrested person to meet an advocate of his choice during interrogation

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

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.

Statutory Defined Terms in this Section: (Click any term for official legal definition)

Cognizable Offence Sec 2(1)(c) Non-Cognizable Offence Sec 2(1)(l) Arrest Sec 35

Legal Commentary & Landmark Judgments: Section 38

Section 38 of the Bharatiya Nagarik Suraksha Sanhita, 2023 guarantees the right of an arrested person to meet and consult an advocate of their choice during police interrogation.

Statutory Rights & Obligations: Section 38 codifies the constitutional right to counsel enshrined in Article 22(1).
Operational Statutory Rights & Obligations: It provides that when any person is arrested and interrogated by the police, they shall be entitled to meet an advocate of their choice throughout interrogation, though not throughout the entire duration of interrogation.

This ensures that the suspect receives timely legal advice, understands their right to silence, and is protected from psychological or physical coercion.

Key Landmark Precedents:

Senior Intelligence Officer v. Jugal Kishore Samra (2011) 12 SCC 362: The Supreme Court held that the advocate may observe interrogation from a distance beyond earshot, balancing the constitutional right to counsel with unimpeded investigative efficacy.
Nandini Satpathy v. P.L. Dani (1978) 2 SCC 424: Affirmed that the right to consult a lawyer begins from the moment of arrest and police custodial interrogation, acting as a crucial safeguard against forced confessions.

Legal Commentary:

Section 38 provides a critical statutory shield during the high-vulnerability period immediately following arrest. While the advocate cannot participate directly in answering questions, their visual presence deters third-degree methods and preserves the voluntariness of statements.