The Allahabad High Court has strongly asserted that an Advocate cannot be subjected to criminal prosecution merely for performing a professional act on behalf of a client, such as filing an appeal and taking a legal position in support of that appeal, unless there is material showing involvement beyond the legitimate discharge of professional duties.
A legal step taken by counsel in the course of representation, even if based on a view of law that is disputed or erroneous, does not by itself amount to conspiracy or participation in the client’s alleged offence. On that reasoning, the Court held that the FIR, the consequent charge-sheet, and the cognizance order were unsustainable in so far as they related to the petitioner, and accordingly quashed them against him.
The Division Bench comprising Justice Tarun Saxena and Justice J.J. Munir observed that the prosecution of the petitioner for filing statutory appeals in his professional capacity violated settled principles of criminal liability. The Bench observed that an Advocate is professionally authorised to represent and defend clients, and merely because an Advocate advises or adopts a particular legal course on behalf of a client, that by itself cannot make the Advocate a conspirator in the client’s alleged wrongdoing.
The Bench emphasised that even if the legal view taken by the Advocate were erroneous, it remained a professional act undertaken in the course of representation. It further noted that accepting such a proposition would imperil the independence of the Bar, undermine the right of Advocates to practise, and indirectly deprive citizens of effective legal assistance, thereby striking at values protected under Articles 14 and 21 of the Constitution. The Bench also noted that when the GST officer was specifically asked why the petitioner had been named in the FIR for a professional act, he had no answer.
Briefly, the petitioner, an Advocate enrolled with the Bar Council of Uttar Pradesh and also an Advocate-on-Record before the Allahabad High Court, was engaged by his client, the proprietor of M/s M H Enterprises, to file statutory appeals under Section 107 of the GST Act against assessment orders passed by the Deputy Commissioner, GST, Rampur. Acting on his client’s instructions, the petitioner filed two online appeals and made the 10% statutory pre-deposit by utilising the client’s Electronic Credit Ledger through input tax credit, relying on the legal position reflected in CBIC instructions.
Thereafter, the appellate authority questioned the maintainability of the appeals on the ground that such pre-deposit was not acceptable, and the appeals were dismissed on that basis. Instead of proceeding only against the assessee for recovery, the Deputy Commissioner lodged an FIR not only against the client but also against the petitioner-Advocate, alleging conspiracy, GST evasion, and financial loss to the State Exchequer. During the pendency of the petition, a charge-sheet was filed and cognizance was taken on the same day, leading to amendment of the petition to challenge the FIR, charge-sheet and cognizance order as against the petitioner.
