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Can Investigating Agency summon Advocates ?

The question is whether at all and if so under what circumstances can the Investigating Agencies directly issue summon to question a counsel who is appearing for a party in a given case?
Whether an advocate at the beck and call of investigating agency or authority or prosecuting agency be made to appear for the advice given as a counsel in a case to accused ?

Supreme court in its recent order in IA No. 148847/2025 ASHWINKUMAR GOVINDBHAI PRAJAPATI VERSUS. STATE OF GUJARAT & ANR considering the question that whether at all and if so under what circumstances can the Investigating Agencies directly issue summon to question a counsel who is appearing for a party in a given case; observed that permitting the Investigating Agencies/Prosecuting Agency/Police to directly summon defence counsel or Advocates, who advice parties in a given case would seriously undermine the autonomy of the legal provision and would even constitute a direct threat to the independence of the administration of justice. The legal profession is an integral component of the process of administration of justice. Counsel, who are engaged in their legal practice apart from their fundamental rights under Article 19(1)(g) of the Constitution of India, have certain rights and privileges guaranteed because of the fact that they are legal professionals.
The facts of the case are that the accused was charged under Sections 296(b) and 351(3) of Bharatiya Nyaya Sanhita, 2023 and Sections 40, 42(a), 42(d) and 42(e) of Gujarat Money-Lenders Act, 2011 as well as under Sections 3(2)(v), 3(2)(va) of Scheduled Castes and the Scheduled Tribes (Preventionof Atrocities) Act, 1989 and was subsequently arrested. As the matter stood the petitioner (advocate of the client) was issued a notice by under section 179 of BNSS wherein petitioner was asked to appear to know the true details of facts and circumstances of the case.
The bench comprising of HON’BLE MR. JUSTICE K.V. VISWANATHAN and HON’BLE MR. JUSTICE NONGMEIKAPAM KOTISWAR SINGH has placed the the matter before Hon’ble Chief Justice of India to decide the matter appropriately and in comprehensive basis.

Comprehensive Analysis of Attorney-Client Privilege

Attorney-client privilege is a core principle of legal practice that protects the confidentiality of communications between a lawyer and their client. This privilege is considered essential because it allows clients to freely share all information—good or bad—with their attorney, without fear that these disclosures will be revealed to others.
The rationale behind this protection is that a lawyer can only effectively advocate for and advise their client if they have access to the complete truth. When clients feel secure in disclosing every detail, attorneys are better equipped to prepare a case and provide sound legal advice.
Geoffrey C. Hazard in his “An Historical Perspective on the Attorney-Client Privilege” Vol. 66:1061 of California Law Review stated that If the privilege were completely abolished, a person accused of a crime would be unable to share their side of the story with their lawyer with full confidence and without it getting disclosed to the prosecution. In effect, defense attorneys would become mere conduits for confessions, which would seriously undermine both the accused’s right to legal representation and the protection against self-incrimination. Therefore, it is widely accepted that the privilege should, at a minimum, protect communications between an accused person and their lawyer—when those communications are made in preparation for defending against a current or imminent criminal prosecution, and relate to a crime that has already been committed.

History Under Common Law

Few references from the Elizabethan period, the reported decisions involving the privilege can be traced back to 1654. . In some of the cases the witness was allowed to withhold his testimony, at least as to some matters, but on grounds that reveal considerable doubt about the scope of the privilege. In the others the claim of privilege was denied.
According to J Wigmore , [in his treatise on EVIDENCE §§ 2290 (3d ed. 1940) ] says of the privilege that the history of this privilege goes back to the reign of Elizabeth, where the privilege already appears as unquestioned …. The policy of the privilege has been plainly grounded, since the latter part of the 1700s…. In order to promote freedom of consultation of legal advisors by clients, the apprehension of compelled disclosure by the legal advisers must be removed; and hence the law must prohibit such disclosure except on the client’s consent.
Elizabethan legal cases do reference the concept of privilege. While some early cases viewed the privilege as belonging to the lawyer—based on the notion that a gentleman would not betray confidences entrusted to him—the doctrine evolved so that the privilege was recognized as the client’s right to have their secrets protected. To effectively prevent disclosure, the law must explicitly prohibit it; otherwise, lawyers would be subject to the general rule requiring witnesses to testify about facts they know.
On the contrary, recognition of the privilege was slow and halting until after 1800. It was applied only with much hesitation, and exceptions concerning crime and wrong-doing by the client evolved simultaneously with the privilege itself
In the English cases, an exception to the rule was usually found if proof aliunde indicated that the client was indeed engaged in some malfeasance.
The opposing argument that was always offered against a claim of privilege-that disclosure would yield the truth-and that argument prevailed.

Greenough v. Gaskell (1833) 1 My & K 98) It was observed by the High court of Chancery that the privilege which entitled solicitors to withhold a -discovery of matters coming to their knowledge in the course of their professional business, was a privilege granted solely for the benefit of the client, and could never be allowed to shelter a solicitor who was sought to be personally charged with a fraud.
It further observed that the foundation of this rule is not difficult to discover, [t is not (as has someÁtimes been said) on account of any particular importance which the law attributes to the business of legal professors, or any particular disposition to afford them protecÁtion, though certainly it may not be very easy to discover why a like privilege lias. been refused to others, and especially to medical advisers.
But it is out of regard to the interests of justice, which cannot he upholden, and to the administration of justice, which cannot go on, without the aid of men skilled in jurisprudence, in the practice of the Courts, and in those matters affecting rights and obligations which form the subject of all judicial proceedings. If the privilege did not exist at all, every one would be thrown upon his own legal resources ; deprived of all professional assistance, a man would not venture to consult any skilful person, or would only dare to tell his counsellor half his case. If the privilege were conÁfined to communications connected with suits begun, or intended, or expected, or apprehended, no one could safely adopt such precautions as might eventually render any proceedings successful, or all proceedings superfluous. From the terms in which I have stated the proposition, it is manifest that several cases may arise, which, though apparently they are exceptions, yet do in reality come within it. Thus the witness, or the Defendant treated as such, and called so to discover, must have learned the matter in question only as a solicitor or counsel, and in no other way.
Williams and Munditi (Ry. & Mood., 34) In this case inasmuch as the attorney was consulted by the Defendants relative to the commencement, and not to the dissolution of the partnership which, as before, was the matter in question. And here Lord Tenterden allowed the examination, but stated the rule somewhat less strictly against the protection. “I have invariably laid down,” says his Lordship, “that what is communicated for the purpose of bringing an action or suit relating to a cause, or suit existing at the time of the communication, is confidential and privileged, but what any attorney learns otherwise than for the purpose of a cause or suit he is bound to communicate
Waugh v. British Railways Board [1980] AC 521 (House of Lords) is a landmark British case which established Dominant purpose test.
In this case, An internal report had been prepared by two of the Board’s officers two days after a collision involving the death of a locomotive driver, whose widow brought the action and now sought its production.
Held: The court considered litigation privilege. There is a conflict between the need to enable clients to communicate freely with their legal advisers in relation to litigation and the need to ensure that all relevant material is before the court. The report undoubtedly contained material collected by or on behalf of the Board for the use of their solicitors in anticipated litigation, but because it could not be shown that this was its dominant purpose the document did not attract litigation privilege.
Legal advice privilege has to be distinguished from litigation privilege. The need to make that distinction was sometimes overlooked: ‘It is for the party refusing disclosure to establish his right to refuse. It may well be that in some cases where that right has in the past been upheld the courts have failed to keep clear the distinction between
(a) communications between client and legal adviser, and
(b) communications between the client and third parties, made (as the Law Reform Committee put it) ‘for the purpose of obtaining information to be submitted to the client’s professional legal advisers for the purpose of obtaining advice upon pending or contemplated litigation.”
A ‘dominant purpose’ test was the best method of resolving the competing principles that on the one hand there should be full disclosure of relevant material in litigation, and on the other, there must be effective maintenance of legal professional privilege.

Statutory Framework In India

In India, the concept of “dominant litigative purpose” governs litigation privilege, much like in the UK and Australia. Under Sections 126–129 of the Indian Evidence Act, 1872, legal communications are protected when:
• Litigation is pending or reasonably contemplated, and
• The document or communication is created with the dominant purpose of that litigation—whether for legal advice or gathering evidence
Larsen & Toubro Ltd. v. Prime Displays Pvt. Ltd2002 (104) Bom LR 2268 The Bombay High Court held that:
“Privilege can be claimed for documents which came into existence in anticipation of litigation, for the dominant purpose of being used in that litigation or for the purpose of seeking legal advice in relation to that litigation.”

Privilege and exception for Client-Attorney communication

Under BSA 2023 and Relevant Satutes

Section 132- Professional communucations provides that No advocate, shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his service as such advocate, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional service, or to disclose any advice given by him to his client in the course and for the purpose of such service
S133 provides for Privilege not waived by volunteering action and;
S134 provides for Confidential communication with legal adviser which states that only the client can disclose the communication if he voluntary wants to disclose such communucation.

Exception under s132/waiver of Privilege

any such communication made in furtherance of any illegal purpose;
any fact observed by any advocate, in the course of his service as such, showing that any crime or fraud has been committed since the commencement of his service.
consent of client

Companies Act 2013

section 227 of companies act 2013 provides that a legal adviser, a banker of any company, a corporate body shall not be required to disclose any privileged communication to the Central government, inspector or registrar appointed by the Central government.

Rule 7 & 15 of Bar Council of India Rules

Part VI, Chapter II, Section II of Bar Council of India Rules mentions the Rules on an advocate’s duty towards the client.

Rule 7 provides that no advocate shall commit a direct or indirect breach of obligations under Section 126 of the Evidence Act. Thus, violating it would amount to a violation of BCI rules.
Rule 15 prohibits an advocate from misusing or taking advantage of the client’s confidence reposed in him.

Conclusion

If the dominant purpose test is applied and advice is tendered based on the anticipation of litigation as the dominant purpose then privelege can be claimed.
The counsel can be summoned for inquisitioning if prior to the taking up of the brief he had knowlege of something culpable relating to the same or was part of the same transaction of events which constituted an offence —involvement in crime.