Section 41D CrPC and Section 38 BNSS: Right to Meet an Advocate During Interrogation

Section 41D CrPC: Right to meet an advocate during interrogation

Section 41D of the Code of Criminal Procedure, 1973, was titled "Right of arrested person to meet an advocate of his choice during interrogation." Its operative text provided:

The provision was inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (Act 5 of 2009) and came into force on 1 November 2010. It was intended to protect access to legal assistance during custodial questioning.

Section 38 BNSS: Present statutory provision

Section 38 of the Bharatiya Nagarik Suraksha Sanhita, 2023, retains the same substantive rule and heading. It applies where a person is both arrested and interrogated by police. The statutory entitlement is to meet an advocate of the arrested person's choice during interrogation, though not throughout interrogation.

This means the provision does not itself grant an absolute right to have counsel continuously present beside the arrested person for every question. Equally, it does not allow police to treat access to a lawyer as entirely discretionary.

What does the right mean in practice?

1. The person must be arrested and interrogated

The express trigger in Section 38 BNSS is arrest followed by police interrogation. Other legal rights may apply before arrest, but they should not be confused with the specific wording of this section.

2. Choice of advocate

The arrested person is entitled to meet an advocate of their choice. Where the person cannot afford legal representation, constitutional and statutory legal-aid safeguards may also be relevant.

3. Meetings during questioning, not continuous attendance

The law expressly distinguishes access to meet counsel during interrogation from a right to counsel's continuous presence throughout interrogation. The practical arrangements must respect the statutory right and any applicable judicial directions.

4. Record any denial of access

If access to an advocate is refused, the arrested person or their family may raise the issue before the Magistrate and seek appropriate legal relief. The circumstances and applicable court orders matter.

Other legal safeguards on arrest

Article 22(1) of the Constitution of India protects an arrested person's right to consult and be defended by a legal practitioner of their choice, subject to constitutional exceptions. Article 22(2) generally requires production before the nearest Magistrate within 24 hours, excluding necessary journey time.

Section 36 BNSS concerns the duties of the officer making an arrest, including identification and preparation of the arrest memorandum. Section 47 BNSS addresses communication of grounds of arrest and information about bail. Section 48 BNSS concerns notifying a relative, friend or another nominated person of the arrest.

The Supreme Court's safeguards in D.K. Basu v. State of West Bengal and principles governing arrest and legal representation remain important when considering alleged violations of arrest procedures.

Official legal references

Read the Bureau of Police Research and Development's new criminal laws portal, including the official BNSS text and correspondence table, and the Ministry of Home Affairs new criminal laws page. The India Code portal provides access to central legislation.

Legal information updated 16 October 2026. The application of repeal and savings provisions, case-specific orders and later amendments should be checked in the official text.