Section 38 – Right of Arrested Person to Meet an Advocate of His Choice During Interrogation

Introduction

Section 38 of the Bharatiya Nagarik Suraksha Sanhita, 2023 provides an important procedural safeguard to a person who has been arrested and is being interrogated by the police. It gives the arrested person the right to meet an advocate of their choice during interrogation.

The provision, however, does not create a right for the advocate to remain continuously present throughout the entire interrogation. The right is limited to meeting the advocate during interrogation.

Section 38 substantially continues the protection that existed under Section 41D of the Code of Criminal Procedure, 1973.

Meaning of Section 38

Section 38 means that when a person has been arrested and is being interrogated by the police, that person is entitled to meet an advocate of their choice during the interrogation.

The right is concerned with access to legal assistance during custodial questioning. At the same time, the provision expressly limits the right by stating that the advocate need not be present throughout the interrogation.

Section 38 therefore attempts to balance two interests:

1. The arrested person’s access to legal assistance and protection against improper custodial practices.
2. The investigating agency’s ability to conduct an effective interrogation without unnecessary interference.

Statutory Basis

The relevant provision is Section 38 of the BNSS, 2023.

Section 38 provides that a person who is arrested and interrogated by the police shall be entitled to meet an advocate of their choice during interrogation, though not throughout interrogation.

The provision forms part of the statutory safeguards relating to arrest and custodial interrogation under the BNSS.

Object and Purpose

The primary purpose of Section 38 is to provide a procedural safeguard to an arrested person during police interrogation.

Custodial interrogation places an arrested person in a vulnerable position because the person is under the control of the investigating agency. Access to an advocate provides an important safeguard against coercion, intimidation and improper treatment.

The provision also promotes fairness in criminal investigation while preserving the legitimate investigative function of the police.

The right is therefore not intended to prevent interrogation. It is intended to ensure that interrogation takes place within the limits of law.

Nature of the Right

The right under Section 38 is a statutory right available to an arrested person who is being interrogated by the police.

Three aspects are particularly important:

• The person must have been arrested.
• The person must be subjected to police interrogation.
• The person is entitled to meet an advocate of their choice during interrogation.

The provision does not state that the advocate must remain physically present for every moment of questioning.

Essential Elements

1. The Person Must Be Arrested

Section 38 applies when a person has been arrested.

Its specific statutory protection therefore concerns an arrested person who is undergoing police interrogation.

This should be distinguished from the broader constitutional and legal principles concerning access to legal assistance at different stages of criminal proceedings.

2. There Must Be Police Interrogation

The right operates in the context of interrogation by the police.

It is directly connected with custodial questioning and the investigative process.

3. Right to Meet an Advocate of Choice

The arrested person is entitled to meet an advocate of their choice.

The expression advocate of his choice recognises the person’s ability to seek assistance from a lawyer selected by them rather than merely accepting a lawyer chosen by the investigating agency.

4. The Right Operates During Interrogation

The meeting with the advocate can take place during the period of interrogation.

The provision therefore provides protection while investigative questioning is taking place rather than restricting access to counsel exclusively to the courtroom.

5. No Right to Continuous Presence

The most important limitation is contained in the words though not throughout interrogation.

Section 38 does not give an arrested person an unconditional right to have an advocate physically present for the entire interrogation.

This distinction is important when understanding the scope of the provision.

Scope of the Advocate’s Presence

Section 38 does not mean either that an arrested person has no access to an advocate during interrogation or that an advocate must remain continuously inside the interrogation process.

The provision gives the arrested person a right to meet the advocate during interrogation while allowing the investigation to proceed without continuous intervention by counsel.

The manner in which access is facilitated may therefore be regulated so that the advocate’s role does not obstruct the investigation.

Supreme Court Interpretation

State of Andhra Pradesh v. Suda Suresh Veera Venkata Naga Raju

In State of Andhra Pradesh v. Suda Suresh Veera Venkata Naga Raju, 2026 INSC 744, the Supreme Court considered the scope of Section 38 in the context of custodial interrogation.

The case involved conditions concerning police custody, including the question of whether an advocate could remain continuously present during interrogation.

The Supreme Court clarified that Section 38 guarantees an arrested person’s right to meet an advocate of their choice during interrogation. It does not, however, create an unconditional right for the advocate to remain continuously and physically present throughout every interrogation session.

The Court recognised the distinction between access to legal assistance and continuous participation of counsel in police questioning.

Principle Established

The central principle can be stated simply:

Right to meet an advocate does not mean right to continuous presence of an advocate throughout interrogation.

The advocate’s access may be regulated in a manner that protects the arrested person while preventing interference with the investigation.

Constitutional Connection

Section 38 operates within the broader constitutional framework protecting personal liberty and fair procedure.

Article 21

Article 21 protects life and personal liberty and requires a procedure affecting personal liberty to satisfy constitutional standards of fairness.

Protection against coercive custodial practices is closely connected with Article 21.

Section 38 provides a statutory safeguard during a stage of criminal investigation where the arrested person may be particularly vulnerable.

Article 22

Article 22 provides important safeguards to arrested persons, including the right to consult and be defended by a legal practitioner of their choice.

Section 38 operates as part of the statutory procedural framework protecting an arrested person’s access to legal assistance during police interrogation.

Section 38 and CrPC

Section 38 BNSS substantially corresponds to Section 41D of the Code of Criminal Procedure, 1973.

Aspect	CrPC, 1973	BNSS, 2023
Provision	Section 41D	Section 38
Subject	Right to meet advocate during interrogation	Right to meet advocate during interrogation
Right	Meeting with advocate of choice	Meeting with advocate of choice
Continuous presence	Not contemplated	Not contemplated
Nature of change	Earlier statutory safeguard	Substantially continued

Section 38 therefore does not represent a major substantive alteration of the earlier statutory safeguard. It substantially carries forward the earlier protection within the BNSS framework.

Important Distinction

Right to Meet Advocate	Continuous Presence of Advocate
Expressly recognised by Section 38	Not expressly granted by Section 38
Available during interrogation	Not required throughout interrogation
Protects access to legal assistance	May interfere with effective interrogation if treated as an unconditional right
Statutory right	Not a statutory entitlement under Section 38

Example

Suppose A is arrested in connection with a criminal investigation and the police begin interrogating A.

A can seek to meet an advocate of A’s choice during the interrogation process. The police cannot treat Section 38 as providing no access to counsel.

However, A cannot claim under Section 38 that the advocate must sit beside A and remain continuously present during every question and answer throughout the entire interrogation.

The manner in which the advocate’s access is facilitated may be regulated so that the investigation is not obstructed.

Important BNSS Provisions

• Section 36 – Procedure of arrest and duties of officer making arrest.
• Section 37 – Designated police officer.
• Section 38 – Right of arrested person to meet an advocate of his choice during interrogation.
• Section 47 – Person arrested to be informed of grounds of arrest and of right to bail.
• Section 48 – Obligation of person making arrest to inform about arrest, etc.
• Section 187 – Procedure when investigation cannot be completed in twenty-four hours.

Common Confusions

Can an arrested person meet a lawyer during police interrogation?

Yes.

Section 38 expressly gives an arrested person the right to meet an advocate of their choice during interrogation.

Can the lawyer remain present throughout the entire interrogation?

No.

Section 38 expressly qualifies the right by stating that the advocate need not be present throughout interrogation.

The Supreme Court has clarified that continuous presence of counsel throughout interrogation is not the statutory right created by Section 38.

Does Section 38 prevent the police from interrogating an arrested person?

No.

The provision protects access to an advocate but does not prevent lawful police interrogation.

Is Section 38 the same as Section 41D CrPC?

Substantially, yes.

Section 38 BNSS corresponds to Section 41D CrPC and substantially carries forward the earlier statutory safeguard.

Topic at a Glance

Point	Position
Topic	Right to meet advocate during interrogation
BNSS Section	Section 38
Applies to	Arrested person being interrogated by police
Right	Meeting an advocate of choice
Continuous presence	Not guaranteed
Corresponding CrPC provision	Section 41D
Constitutional connection	Articles 21 and 22
Leading case	State of Andhra Pradesh v. Suda Suresh Veera Venkata Naga Raju
Key principle	Right to meet counsel does not mean continuous presence throughout interrogation

Quick Revision

• Section 38 BNSS protects an arrested person’s right to meet an advocate of their choice during police interrogation.
• The right is available during interrogation but not throughout interrogation.
• It substantially corresponds to Section 41D of the CrPC.
• The provision balances access to legal assistance with the legitimate needs of police investigation.
• Section 38 does not create an unconditional right to continuous physical presence of an advocate.
• In State of Andhra Pradesh v. Suda Suresh Veera Venkata Naga Raju, the Supreme Court clarified the scope of the right under Section 38.
• The provision is connected with the constitutional protections under Articles 21 and 22.
• The manner of an advocate’s access may be regulated to prevent interference with the interrogation.

ASO READ: Section 37 – Designated police officer

Conclusion

Section 38 BNSS provides an important safeguard for an arrested person during police interrogation by recognising the right to meet an advocate of their choice. At the same time, the provision deliberately stops short of granting continuous legal representation throughout every moment of interrogation.

The provision therefore seeks to maintain a balance between the arrested person’s right to legal assistance and the investigating agency’s need to conduct an effective investigation. The Supreme Court’s interpretation further clarifies that access to counsel is protected, but continuous physical presence of counsel throughout interrogation is not an automatic statutory entitlement.