advocate

Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K. Agrawal, J. held that the continuation of criminal proceedings for the offence of defamation against an advocate who acted professionally as per the instructions of his client was nothing but abuse of process of Court.

The petitioner was an Advocate having standing of more than 45 years at the Bar in District Court, Jagdalpur (Bastar). He drafted a plaint on behalf of one Madhuri Pandey, daughter of late Ghanshyam Pandey, for declaration of title, confirmation of possession and permanent injunction against one Pratibha Pandey (hereinafter, the complainant). In the plaint, she was referred to as “concubine” of Ghanshyam Pandey. She filed a complaint against the petitioner and other alleging that she was the widow of Ghanshyam Pandey and not her concubine. She prayed for appropriate action or damage to her reputation.

The precise question for consideration of the Court was: Whether an Advocate, while acting under the instructions of his client and proceeding professionally, can be prosecuted/punished for the offence of defamation punishable under Section 500 IPC?

Rahul Tamaskar, Advocate for the petitioner contended that the petitioner was acting strictly in performance of his professional duty and he enjoyed privilege while acting as such. Chandresh Shrivastav, Deputy Advocate General, submitted that the present petition deserved to be dismissed. Punit Ruparel, Advocate submitted that the petitioner ignored the Duty to Opponent prescribed under Bar Council of India Rules.

The High Court was of the view that the petitioner was liable to be given the benefit of the ninth exception (imputation made in good faith by person for protection of his or others interests) to Section 499 (defamation) IPC. It was noted that the petitioner drafted the plaint on the basis of instructions provided by his client, the plaintiff. Referring to a plethora of Judicial Precedents, the High Court held: “an advocate, who acted professionally as per instructions of his/her client, cannot be made criminally liable for the offence of defamation under Section 500 IPC unless the contrary is alleged and established.” Finding the petitioner’s act to be bona fide, it was said: “As such, imputation was made in good faith and on the basis of instructions of his client in order to protect her right to property which she is claiming, as right to property is a constitutional right under Article 300A of the Constitution of India and therefore does not constitute the offence of defamation under Section 499 punishable under Section 500 and falls within the Ninth Exception to Section 499.”

In such view of the matter, the criminal proceedings pending against the petitioner before the Court of Chief Judicial Magistrate, Jabalpur was quashed.[Arun Thakur v. State of Chhattisgarh, 2019 SCC OnLine Chh 51, decided on 10-05-2019]

Case BriefsHigh Courts

Uttaranchal High Court: Manoj K. Tiwari, J. contemplated a writ petition filed against the impugned order, where the request of the petitioner for appointing defence representative in an ongoing disciplinary proceeding had been rejected.

Learned counsel for the petitioner B.D. Pande, submitted that petitioner was asked by the Enquiry Officer as to whether he needed a defence representative in the inquiry against him. Petitioner sought four days time to name the defence representative and ultimately he nominated his representative who was enrolled as an Advocate. He further submitted that his request to engage an Advocate as a representative was turned down as there was no provision in the Service Rules for the appointment of an Advocate as a defence representative, thus, it was directed that petitioner cannot claim the assistance of an Advocate as defence representative as of right. Further, the petitioner acknowledged the directions and sought permission to engage another person as his representative.

Petitioner contended that he was a Class IV employee and was not much educated hence he deserved sympathetic consideration of his request by the competent authorities.

The Court accordingly, disposed of the writ, with the liberty to the petitioner to make a formal request for assistance of a defence representative other than an Advocate to the Competent Authority. Competent Authority was directed that after such request from the petitioner they had to examine the same and take an appropriate decision, in accordance with the law.[Dushyant Kumar v. UCO Bank, 2019 SCC OnLine Utt 379, decided on 27-05-2019]

Appointments & TransfersNews

Proposal for the appointment of Shri Viju Abraham, Advocate as a Judge of the Kerala High Court.

“For purpose of assessing merit and suitability of Shri Viju Abraham we have carefully scrutinized the material already on record as well as the further information received from Kerala High Court. Having regard to all relevant factors, the Collegium is of the considered view that Shri Viju Abraham is suitable for elevation to the High Court.”

Collegium resolves to recommend that Shri Viju Abraham, Advocate, be appointed as a Judge of the Kerala High Court.

[Notification dt. 06-05-2019]

Supreme Court of India

OP. ED.

Rule 13 of Chapter II of Part VI of the Bar Council of India Rules under the Advocates Act, 1961 specifically state that:

  1. An advocate should not accept a brief or appear in a case in which he has reason to believe that he will be a witness, and if being engaged in a case, it becomes apparent that he is a witness on a material question of fact, he should not continue to appear as an advocate if he can retire without jeopardising his client’s interests.

Section 120 of the Evidence Act, 1872 only deals with who may testify as a witness and does not lay down any restriction or restraint on the advocate to be a witness in the case where he is acting as an advocate. A counsel for a party should not be his witness in the same case without retiring from the case as counsel. It is a sound principle that a person who is appearing as counsel should not give evidence as witness.

If, however, in the course of proceedings it is discovered that the advocate is in a position to give evidence and it is desirable that he should do so, his proper course is to retire from the case in his professional capacity. Failure to do the same would amount to professional misconduct under Section 35 of the Advocates Act, 1961. However, if the advocate knew or had reason to believe since the very beginning that he will be an important witness in the case, he has a choice either to appear as a witness or to appear as an advocate. Once he exercises the said choice and chooses to be an advocate in the case, then he cannot be examined as a witness on behalf of the opposite side by retiring from the suit at a subsequent stage.

It is against the etiquette of the Bar that a member of the profession should give evidence in the case in which he is engaged as counsel and no self-respecting counsel would be prepared to conduct a case for the defence after having been called as a witness for the prosecution. However, a practitioner, who is acting on behalf of one of the parties and conducting litigation for him is debarred under Section 126 of the Evidence Act, 1872 to disclose the communications made to him without the express consent of his client.

If, however, a court comes to the conclusion that a trial will be embarrassed by the appearance of an advocate who has been called as witness by the other side, and if, notwithstanding the court’s expression of its opinion, the advocate refuses to withdraw, in such a case, the court has inherent jurisdiction to require the advocate to withdraw. Nevertheless, a counsel is not incompetent to give evidence whether the facts to which he testifies occurred before or after his retainer. It should be noted that merely because the name of an advocate appears in the list of witnesses of opposite party, his vakalatnama does not automatically get relinquished.

However, recently in Kokkanda B. Poondacha v. K.D. Ganapathi[1] the Supreme Court has held that one of the parties in a suit cannot cite the advocate representing the other side as a witness in the list without indicating the purpose for the same. This will ensure that the other side is not deprived of the services of the advocate on frivolous grounds.

Conclusion

Therefore, in light of the above, an advocate can appear as witness in certain instances. However, it should be noted that an accused is entitled to be defended by a counsel of his choice and the prosecution cannot fetter that choice merely by serving subpoena on the advocate to appear as a witness. Furthermore, the Court is also bound to see that the due administration of justice is not, in any way, embarrassed by permitting the advocate to appear as witness.

 

* Associate, Khaitan & Co., New Delhi, email – susanah.naushad@khaitanco.com

[1]  (2011) 12 SCC 600.

Case BriefsHigh Courts

Kerala High Court: Deciding upon the question as to whether an advocate could be permitted to appear in person as a power of attorney holder in the absence of a vakalat, the Court held that an advocate holds an exalted position as an officer of the court who should not identify with the cause of his client whom he represents in the lis.

A practising lawyer of the Madras High Court sought to plead the case on behalf of the appellants as a power of attornery holder on the  contention that he was not appearing in the robes of an advocate and that any person could function as such for the parties.

The Bench of  Chitambaresh and Ramakrishnan, JJ. held that any appearance, application or act in or to any court, required by law to be made by a party in such  court, may be made or done by the party in person, or by his recognised agent or by a pleader. The recognised agent by whom such appearance, application or act may be made or done can as well be a person holding power of attorney of the party which is evident from a conjoint reading of Rules 1 and 2 of Order 3 of the Code of Civil Procedure, 1908. The appointment of a power of attorney holder has nevertheless to be preceded by the grant of permission by court, as held in T.C. Mathai v. Sessions Judge, (1999) 3 SCC 614. However there is an embargo for a person enrolled as an advocate under the Advocates Act, 1961 to appear before any court, authority or person in any particular case under Section 32 thereof.

The Court observed that there is also an inbuilt limitation for a power of attorney holder in the matter of presentation of proceedings or to plead and argue on behalf of the principal in court. All petitions, appeals and other proceedings shall be presented in person by the party, or his advocate or the advocate’s registered clerk as per Rule 32 of the Rules of the High Court of Kerala. Decisions are legion that the power of attorney holder can only appear and conduct the judicial proceedings and would not normally be permitted to plead and argue on behalf of the principal. The power of attorney holder in the instant case has no interest in the subject property.

Declining the relief, the Court observed that an advocate cannot escape from the rigorous provisions of the Advocates Act by opting to plead and argue the case as power of attorney holder of the parties. [Brenda Barbara Francis v.  Adrian Mirinda, 2016 SCC OnLine Ker 8173,  order dated July 8, 2016]

Case BriefsHigh Courts

Kerala High Court: The bench comprising of Justice Shaji P. Chaly, allowed the writ petition and issued a mandamus directing the Kerala State Housing Board and others to ensure that various flats constructed under a housing scheme for residential purposes at the Chinnakkada Housing Accomodation Scheme Site II of the Housing Board, Kollam, are not being used for other commercial purposes.

The Housing scheme in question was meant for residential purposes. Further, Clause 19 of the Hire Purchase Agreement for those who opted for hire purchase also restricted use to residential purposes as does Regulation 6 (1) of the Kerala State Housing Board (Formation of Allottees Associations) Regulations, 2000). Nevertheless, various flats in the complex for being used as offices, godowns, training centres etc. Earlier alottees had raised the issue with the Board, whose inaction triggered O.P. No. 28612/2000 before the same court, wherein respondents 1 to 3 had been directed to see that flats were not used for any purpose other than those mentioned under the scheme and clause 19 of the Hire Purchase Agreement.

This Court characterized as undeniable  fact that owners and representatives-in-interest would be bound to obey the restrictive clause, and the housing scheme. The Court noted R.K. Mittal v. State of Uttar Pradesh  (2012) 2 SCC 232, wherein the Supreme Court held that a scheme which comprised a master plan and zoning plan specified as residential by the allotment by the Delhi Development Authority under the Industrial Development Area Act of 1976, must be implemented strictly.

The Court thereby held the Respondents bound to ensure the residential character of the flats and remove all commercial ventures within a period of three months, excepting an advocate who resided and maintained his office in the same flat because it is  not exactly constituting a commercial venture.  [Darelene Carmelita D’Cruz v. Kerala State Housing Board, 2016 SCC OnLine Ker 5341, decided 08-04-2016]

High Courts

Bombay High Court:  In a case of appeal against a family court order, a bench comprising of Revati Mohite Dhere, J observed that if an advocate, who had represented a woman in her earlier divorce proceedings, later represents her second husband against her, it cannot be said that the advocate switched sides in the “same proceedings”.  The ruling came as a relief to advocate Edith Dey who had represented the respondent in her first divorce and was now representing the respondent’s second husband in the ongoing divorce case. Earlier, the family court had set aside the advocate’s appointment and directed the second husband to appoint another advocate to represent him. Advocate Dey appealed against this decision arguing that there was no conflict of interest and that the two proceedings were distinct and unconnected. On the other hand, the wife’s advocate Taubon Irani emphasized that advocates must maintain their clients’ confidentiality.

After listening to arguments on both sides, the Court noted that nowhere had the wife contended that the said advocate was aware of any confidential information. The Court also observed that the family court had failed to take into consideration that  the divorce case where the Advocate Dey had represented the respondent-wife was converted into a petition for divorce by mutual consent in the first hearing itself. The Court also clarified that the said family court order did not decide on whether the advocate can or cannot appear for the second husband; instead, the judge held merely observed that under Section 13 of the Family Court Act, 1984, there is no inherent right in an Advocate to appear. After discussing Rule 23 of Bar Council of India rules, Section 34(1); of Advocate Act, 1961 and a related judgment of Andhra Pradesh High Court, the Court came to a conclusion that an advocate cannot switch sides and appear for the opposite side in the “same proceedings” but  in this case it cannot be said that the proceedings in which the advocate  was now appearing were the “same proceedings.” Rajiv Hiranandani vs. Namrata Zakaria, Civil Writ Petition No.11135 of 2013, decided on July 31, 2014