1

Role of Advocates in Judiciary

S.S. Upadhyay
° Former Legal Advisor to Governor
Raj Bhawan, Uttar Pradesh, Lucknow
Former District & Sessions Judge/
Former Addl. Director (Training)
Institute of Judicial Training & Research, UP, Lucknow.
Member, Governing Body,
Chandigarh Judicial Academy, Chandigarh.
Mobile : 9453048988
E-mail : ssupadhyay28@gmail.com
Website: lawhelpline.in

1.1. Laws applicable to Advocates : The main laws applicable to the

advocates are as under :

(1) Advocates Act, 1961

(2) Advocates' Welfare Fund Act, 2001
(3) Bar Council of India Rules, 19775
(4) All India Bar Examination Rules,2010
(5) Advocates (Right to Take up Law Teaching) Rules, 1979
(6) Model Schemes for Welfare of Advocates Framed by Bar
Council of India
(7) Bar Council of India Advocates Welfare Scheme, 1998
(8) The Bar Council (Validation of State Laws) Act, 1956
(9) The Bar Council of India Certificate and Place of Practice
(Verification) Rules, 2015
(10) Special Provisions Relating to the Bar Council and
Advocates in the North- Eastern Areas (Reorganization)
and Other Related Laws (Amendment) Act, 2012 (26 of
2012 (w.e.f. 23-3-2013)
(11) Madhya Pradesh Advocates Protection Act, 2018
(12) Provisions in the CPC
(13) Provisions in the CrPC
(14) Provisions in the G.R. Civil
(15) Provision in the G.R. Criminal
(16) Circular Orders issued by the High Court
(17) Allahabad High Court Rules, 1952
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(18) Judicial pronouncements

(19) Govt. Notifications & G.Os. etc.
(20) Bar Council of India Training Rules, 1995 (declared ultra
vires by the Supreme Court in V. Sudeer Vs. Bar Council of
India, (1999) 3 SCC 176).

1.2. Passing All India Bar Examination conducted by BCI

mandatory in order to practice as an advocate: Passing All
India Bar Examination conducted by the BCI under Rule 9 of the
All India Bar Examination Rules,2010 is mandatory for law
students graduating from academic year 2009-2010 and onwards in
order to be enrolled as an advocate u/s 24 of the Advocates Act,
1961 to practice as an advocate. See:
(i).Chanchal Tiwari Vs. Union of India, AIR 2020 MP 182
(DB).
(ii).V.Sudeer Vs. Bar Council of India, AIR 1999 SC 1167

2.01. Role of lawyers in administration of justice: Lawyers play an

important part in the administration of justice. The Profession itself
requires the safeguarding of high moral standards. As an officer of
the Court the overriding duty of a lawyer is to the Court, the
standards of his profession and to the public. Since the main job of
a lawyer is to assist the Court in dispensing justice, the members of
the Bar cannot behave with doubtful scruples or strive to thrive on
litigation. Lawyers must remember that they are equal partners
with Judges in the administration of justice. If lawyers do not
perform their function properly, it would be destructive of
democracy and the rule of law. "Law is no trade, briefs no
merchandise". An advocate being an officer of the Court has a
duty to ensure smooth functioning of the Court. He has to revive
the person in distress and cannot exploit the helplessness of
innocent litigants. A willful and callous disregard for the interests
to the client may in a proper case be characterized as conduct
unbefitting an advocate. See : In Re : Rameshwar Prasad Goyal,
Advocate, AIR 2014 SC 850.
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2.02. Right to practice as an advocate is not a fundamental right

under Article 19(1)(g) of the Constitution but only a statutory
right: Right of an advocate to practice is not a fundamental right
under Article 19(1)(g) of the Constitution of India but a statutory
right under the Advocates Act, 1961. Therefore, subject to
conditions laid down in the Act and Rules, expression "subject to"
occurring in Section 30 is included in Section 34 of the Act viz. the
rule-making power of High Court. See: Bar Council of
India Vs. High Court of Kerala, AIR 2004 SC 2227 (Three-Judge
Bench).

2.03. Legal Profession and Lawyer-Client Relationship and Duties of

Lawyers : The relationship between the lawyer and his client is
one of trust and confidence. The client engages a lawyer for
personal reasons and is at liberty to leave him also for the same
reasons. He is under no obligation to give reasons for withdrawing
his brief from his lawyer. The lawyer is not an agent of his client
but he is dignified and responsible spokesman. He is not bound to
tell the court every fact or urge every proposition of law which his
client wants him to do, however relevant it may be. He is
essentially an advisor to his client and is rightly called a counsel in
some jurisdictions. Legal profession is essentially a service-
oriented profession. The lawyer of the Govt. or a public body is not
its employee but is a professional practitioner to do the specified
work, though the lawyers on the full time rolls of the Govt. and the
public bodies, are described as their law officers. It is precisely for
this reason that in the case of such law officers, the saving clause
of rule 49 of the Bar Council of India Rules waives the prohibition
imposed by the said rule against the acceptance by a lawyer of a
full time employment. The Supreme Court has quite elaborately
discussed in this case the role and powers of legal professionals,
lawyers-client relationship, position and powers of Legal
Remembrancer in the context of U.P. Legal Remembrance
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Manual. See : State of U.P. vs. U.P. State Law Officers

Association, (1994) 2 SCC 204

2.04. Advocates as officers of courts : An Advocate being an officer of

the Court has a duty to ensure smooth functioning of the Court.
See : In Re : Rameshwar Prasad Goyal, Advocate, AIR 2014
SC 850

2.04a. No FIR against lawyers, doctors or other professionals if their

advice goes wrong: No FIR can be lodged against lawyers,
doctors or other professionals for the offences like 420, 109 IPC or
for any other penal offences if their advice goes wrong. See: CBI,
Hyderabad Vs. K. Narayana Rao, (2012) 9 SCC 512.

2.05. Lawyers are equal partners with the Judges in the

administration of justice : Lawyers are equal partners with the
Judges in the administration of justice. See : In Re : Rameshwar
Prasad Goyal, Advocate, AIR 2014 SC 850.

2.06. Pre-conditions for practicing as an advocate before the

Allahabad High Court : Provisions under Rules 3 and 3-A of
Chapter XXIV of the Allahabad High Court Rules, 1952 do not
permit an advocate who is not enrolled with the Bar Council of
State of UP and is not on the roll of advocates maintained by the
Allahabad High Court, to appear, act or plead in the High Court
unless he files his Vakalatnama alongwith a local advocate i.e.
advocate registered with the Bar Council of UP and on roll of
advocates of the Allahabad High Court. See : Jamshed Ansari
Vs. High Court of Judicature at Allahabad & Others, (2016) 10
SCC 554.

2.07. Right to practice as an advocate is not an absolute right : Right

of advocates u/s 30 & 34 of the Advocates Act, 1961 is not an
absolute right but is subject to the rule-making power of the High
Court u/s 34 of the Advocates Act, 1961 and Article 225 of the
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Constitution of India. High Court by framing the said rules can

regulate appearance of advocates in courts. Right to appear and
conduct cases in court is a matter on which court must and does
have major supervisory and controlling power. See : Jamshed
Ansari Vs. High Court of Judicature at Allahabad & Others,
(2016) 10 SCC 554.

2.08. Lack of proper knowledge of an advocate is bound to adversely

affect the rights of litigants and also the administration of
justice : The administration of justice is a sacrosanct function of
the judicial institutions or the persons entrusted with that onerous
responsibility and principle of judicial review has now been
declared as a part of the basic structure of the Constitution.
Therefore, if anything has the effect of impairing or hampering the
quality of administration of justice either due to lack of knowledge
or proper qualification on the part of the persons involved in the
process of justice dispensation or they being not properly certified
by the Bar Council as provided under the Advocates Act, 1961 and
the Rules made thereunder, it will surely affect the administration
of justice and thereby affect the rights of litigants who are before
the courts seeking justice. See : Jamshed Ansari Vs. High Court
of Judicature at Allahabad & Others, (2016) 10 SCC 554 (para
19).

2.09. Lawyers and litigants cannot be allowed to terrorize or

intimidate Judges with a view to secure orders which they want
: No lawyer or litigant can be permitted to browbeat the Court or
malign the Presiding Officer with a view to get a favourable order.
Judges shall not be able to perform their duties freely and fairly if
such activities were permitted and in the result administration of
justice would become a casualty and Rule of Law would receive a
set back. The Judges are obliged to decide cases impartially and
without any fear or favour. Lawyers and litigants cannot be
allowed to terrorize or intimidate Judges with a view to secure
orders which they want. This is basic and fundamental and no
civilised system of administration of justice can permit it. A
litigant cannot be permitted 'choice' of the 'forum' and every
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attempt at "forum shopping" must be crushed with a heavy hand.

At the same time, it is of utmost importance to remember that
Judges must act as impartial referees and decide cases objectively,
uninfluenced by any personal bias or prejudice. A Judge should not
allow his judicial position to be compromised at any cost. This is
essential for maintaining the integrity of the institution and public
confidence in it. The credibility of this institution rests on the
fairness and impartiality of the Judges at all levels. It is the
principle of highest importance, for the proper administration of
justice, that judicial powers must be exercised impartially and
within the bounds of law. It must always be remembered that
justice must not only be done but it must also be seen to be
done. See : M/s. Chetak Construction Ltd Vs. Om Prakash &
Others, AIR 1998 SC 1855 (paras 19 & 20).

2.10. Only because a lawyer appears as a party in person in his own

case, he does not get a license to commit contempt of Court by
intimidating the Judges or scandalizing the Courts : Does the
law give a lawyer, unsatisfied with the result of a case, any license
to permit himself the liberty of scandalizing a Court by casting
unwarranted imputations against the Judge in discharge of his
judicial functions? Does the lawyer enjoy any special immunity
under the Contempt of Courts Act, 1971 where he is found to have
committed a gross contempt of Court? The answer has to be an
emphatic No. In the instant case, the alleged contemnor has been
making continuous attempts to subvert the course of justice in
whichever Court his case was. He has been acting not only as if he
is above the law but as if he is law unto himself. Notwithstanding
his own assessment of his 'merit and 'competence' as stated by him
in the memo of petitions, the alleged contemnor appears to be
blissfully ignorant of the role of a lawyer and the law relating to
drafting of pleadings which must be precise and not scandalous or
abusive. By filing the applications, and the petition, as a party in
person, couched in very objectionable language, he has permitted
himself the liberty of indulging in an action which does little credit
to the noble profession to which he belongs. An advocate has no
wider protection than a layman when he commits an act which
amounts to contempt of Court. It is most unbefitting for an
advocate to make imputations against the Judge only because he
does not get the expected result which according to him is the fair
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and reasonable result available to him. Judges cannot be

intimidated to seek favourable orders. Only because a lawyer
appears as a party in person, he does not get a license to commit
contempt of the Court by intimidating the Judges or scandalizing
the Courts. He cannot use language, either in the pleadings or
during arguments, which is either intemperate or unparliamentary
and which has the tendency to interfere in the administration of
justice and undermine the dignity of the Court and the majesty of
law. These safeguards are not for the protection of any Judge
individually but are essential for maintaining the dignity and
decorum of the Courts and for upholding the majesty of law.
Judges and Courts are not unduly sensitive or touchy to fair and
reasonable criticism of their judgments. Fair comments, even if,
outspoken, but made without any malice and without attempting to
impair the administration of justice and made in good faith in
proper language do not attract any punishment for contempt of
Court. However, when from the criticism, a deliberate, motivated
and calculated attempt is discernible to bring down the image of
judiciary in the estimation of the public or to impair the
administration of justice or tend to bring the administration of
justice into disrepute; the Courts must bitter themselves to uphold
their dignity and the majesty of law. The alleged contemnor, has,
undoubtedly committed contempt of the Court by the use of the
objectionable and intemperate language. No system of justice can
tolerate such unbridled licence on the part of a person, be he a
lawyer, to permit himself the liberty of scandalizing the Court by
casting unwarranted, uncalled for and unjustified aspersions on the
integrity, ability, impartiality or fairness of a Judge in the discharge
of his judicial functions, as it undoubtedly amounts to an
interference with the due course of administration of justice. No
litigant, even a lawyer appearing in person in his own cause, can be
permitted to overstep the limits of fair, bona fide and reasonable
criticism of the judgment and bring the Courts generally into
disrepute or attribute motives to the Judges rendering the
judgment. Perversity calculated to undermine the judicial system
and the prestige of the Court cannot be permitted for otherwise the
very foundation of the judicial system is bound to be undermined
and weakened. Liberty of free expression is not to be confused
with a licence to make unfounded, unwarranted and irresponsible
aspersions against the Judges or the Courts in relation to judicial
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matters. In the established facts of the case, the alleged contemnor

would be guilty of gross contempt of Court and liable to be
convicted accordingly. The alleged contemnor sentenced to
undergo simple imprisonment for a period of four months and to
pay a fine of Rs. 1,000/- (one thousand) and in default of payment
of fine, to further undergo simple imprisonment for a period of 15
days. Since the contemnor has abused professional privileges while
practicing as an Advocate, the Supreme Court also directed that the
copy of the judgment together with the relevant record be
forwarded to the Chairman, Bar Council of India, who may refer
the case to the concerned committee for appropriate action as is
considered fit and proper. See : In re Ajay Kumar Pandey,
Advocate, AIR 1998 SC 3299.

2.11 Only lawyer, not Judge, is expected to know law: There is a

presumption in law that a lawyer knows the law but there is no
absolute presumption that a Judge should know the law. A Judge is
only called upon to balance the two sides of an argument presented
before him. See: Judgment dated 01.05.2014 passed by Hon’ble
Justice Rajiv Narain Raina of Punjab and Haryana High Court in
CR. No. 3791 / 2013 (O&M), Nirmal Singh & Others Vs. Tarsem
Singh & Others.

3.01. A pleader to act for the party/client only on appointment by

vakalatnama (Order 3, rule 4 CPC) : As per Order 3, rule 4 CPC
no pleader can act for the party/client unless he has been appointed
as such by the party/client by a document in writing which is
popularly called as “Vakalatnama”.

3.02. Vakalatnama when not required ? : Vakalatnama is not required

for performance of legal work such as giving opinion, sending
notices, drafting petitions or other documents. There is no need for
a lawyer to obtain a signed Vakalatnama from his client for such
works. But signed Vakalatnama under Order 3, rule 4 CPC is
required to be obtained when it is filed in law courts or tribunals to
enable the lawyer to plead cases on behalf of clients. See : Baru
Singh vs. Babu Ram Sharma, AIR 1997 All 185
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3.03. No need for fresh Vakalatnama before superior court when

one already filed in inferior court : Filing of fresh Vakalatnama
under Order 3, rule 4 CPC before superior court or in special
appeal is not required when the same was already filed before the
single Judge or inferior court. See : M/s. Ahmad Bakhsh vs. State
of U.P., 1999 (36) ALR 74 (All)(D.B.)

3.04. Fresh Vakalatnama when required ? : The Supreme Court,

expressing concern in regard to the manner in which defective
vakalatnamas are routinely filed in courts, has clarified the
necessity of filing fresh vakalatnamas at different stages of
proceedings like original suits, appeals, revisions, executions and
misc. proceedings can be insisted upon. See : Uday Shankar
Triyar vs. Ram Kalewar Prasad Singh, 2006(1) ARC 1 (SC)
(Three-Judge Bench)

3.05. Vakalatnama & its contents as required by law : The Supreme

Court, expressing concern in regard to the manner in which
defective vakalatnamas are routinely filed in courts, has clarified
the necessity of filing fresh vakalatnamas at different stages of
proceedings like original suits, appeals, revisions, executions and
misc. proceedings and also the manner of filing the vakalatnamas
as quoted below :-
“Vakalatnama, a species of power of Attorney, is an
important document, which enables and authorizes the pleader
appearing for a litigant to do several acts as an agent, which are
binding on the litigant who is the principal. It is a document which
creates the special relationship between the lawyer and the client.
It regulates and governs the extent of delegation of the authority to
the pleader and the terms and conditions governing such
delegation. It should, therefore, be properly filled, attested,
accepted with care and caution. Obtaining the signature of the
litigant on blank vakalatnamas and filling them subsequently
should be avoided. The Supreme Court took judicial notice of the
following defects routinely found in vakalatnamas filed in courts :
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(1) Failure to mention the name/s designation or authority of the

person executing the vakalatnama and leaving the relevant
column blank.
(2) Failure to disclose the name, designation or authority of the
person executing the vakalatnama on behalf of the grantor
(where the vakalatnama is signed on behalf of a company,
society or body) either by affixing a seal or by mentioning
the name and designation below the signature of the
executant (and failure to annex a copy of such authority with
the vakalatnama).
(3) Failure on the part of the pleader in whose favour the
vakalatnama is executed to sign it in token of its acceptance.
(4) Failure to identify the person executing the vakalatnama or
failure to certify that the pleader has satisfied himself about
the due execution of the vakalatnama.
(5) Failure to mention the address of the pleader for purpose of
service (particularly in cases of outstation counsel).
(6) Where the vakalatnama is executed by someone for self and
on behalf of someone else, failure to mention the fact that it
is being so executed. For example, when a father and the
minor children are parties, invariably there is a single
signature of the father alone in the vakalatnama without any
endorsement/statement that the signature is for self and as
guardian of his minor children. Similarly, where a firm an it
is partner, or a company and it’s Director, or a Trust and it’s
trustee, or an organization and it’s office bearer execute a
vakalatnama, invariably there will be only one signature
without even an endorsement that the signature is both in
his/her personal capacity and as the person authorized to
sign on behalf of the corporate
body/firm/society/organization.
(7) Where the vakalatnama is executed by a power-of-attorney
holder of a party, failure to disclose that it is being executed
by an attorney holder and failure to annex a copy of the
power of attorney.
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(8) Where several persons sign a single vakalatnama, failure to

affix the signatures seriatim, without mentioning their serial
numbers or names in brackets as many a times it is not
possible to know who have signed the vakalatnama where
the signature are illegible scrawls.
(9) Pleaders engaged by a client, in turn, executing
vakalatnamas in favour of other pleaders for appearing in the
same matter or for filing an appeal or revision. It is not
uncommon in some areas for mofussil lawyer to obtain
signature of a litigant on a vakalatnama and come to the seat
of the High Court and engage a pleader for appearance in a
High Court and execute a vakalatnama in favour of such
pleader.
(10) The abovenoted routine defects are found as
registries/offices do not verify the vakalatnamas with due
care and caution they deserve, such failure many a time
leads to avoidable complications at later stages. The need to
issue appropriate instructions to the registries/offices to
properly check and verify the vakalatnamas filed requires
emphasis.
(11) Filing a fresh vakalatnama with the memorandum of appeal
etc. will always be convenient to facilitate the processing of
the appeal by the office. See :
(i) Uday Shankar Triyar vs. Ram Kalewar Prasad Singh,
2006(1) ARC 1 (SC) (Three--Judge Bench)
(ii) Ram Kishan vs. State of U.P., 2008 (61) ACC 838 (All)

3.06. Vakalatnama to be permitted to be signed by the counsel if not

signed by him earlier : A Vakalatnama which could not have
been signed by the counsel at the time of presentation of the
memorandum of appeal and the same was consequently dismissed
by the Addl. District Judge/Appellate Court on that ground alone,
it has been held by the Supreme Court that a procedural defect like
non-signing of the Vakalatnama by the counsel could not have
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been made a basis for dismissal of the appeal and permission to

counsel to sign the Vakalatnama should have been accorded. See :
1. Uday Shankar Triyar vs. Ram Kalewar Prasad Singh,
2006(1)ARC 1(SC : Three Judge Bench)
2. Yagnapurushdasji vs. Muldas Bhundardas Vaishya, AIR 1966
SC 1119

3.07. Change of counsel by party and filing of fresh vakalatnama by

newly engaged counsel when permissible? : In a civil appeal
which was dismissed by the court under Order 41, Rule 17 of the
CPC and thereafter restoration application under Order 41, rule 19
of the CPC was moved, explaining rule 39 of Chapter II in part VI
of the Bar Council of India Rules, 1975, it has been held that so far
as the courts are concerned it is not open to a party to determine
the appointment of a Counsel without permission of the Court. It is
not open to a client to withdraw the file of the case from his
Counsel without permission of the Court as required under Order
3, Rule 4 and ordinarily a Counsel cannot withdraw from the case,
on his being engaged without leave of the Court so far as the case
is concerned, as if a party is deemed to be entitled to change
Counsels one after other at his sweet will and take away from the
file of the case from one Counsel without determining his
appointment according to requirement of the rule and engage other
and thereafter engages a third Counsel after taking the file of the
second Counsel without consent in writing of the Counsel after
taking the file of the second Counsel without consent in writing of
the Counsel already on record of the case and without permission
of the Court, disastrous consequences may ensue and follow. As
such, it is not open to a party to subterfuge another Counsel before
determining the appointment of the earlier one in accordance with
law as provided under Order 3, Rule 4, except in the cases or in the
circumstances provided by the modifying the rules or immediate
appointment of the second Counsel with the consent writing of the
Counsel already on record.Rule 39 of Bar Council of India Rules,
per se shows as a rule of conduct on the part of Advocate and it
 13

imposes an obligation on Advocate that in cases or in any case

where there is already an Advocate engaged by a party and
vakalatnama has already been filed, no Advocate shall appear for
that party except with the consent of the Advocate already on the
record of the case and a reading of the rules indicates that as
consent has to be produced before the Court, it means the consent
should be in writing and if for some reasons or other the consent
cannot be produced then the second Counsel put in appearance, in
the case, with application for permission in which he shall state the
reasons as to why he is unable to produce the consent and will seek
the permission of the Court for appearing in that case. The law and
spirit of this rule of conduct on the part of Advocate also
emphasize and indicates its purposes, which is two-fold, namely,
firstly, that keeping pace with the position of an Advocate, it is
necessary that in order to maintain certain norms of lis and ethics
of profession as well as to maintain their status and dignity, it
should be provided that they should not themselves to make their
own-selves or their colleagues, a subject matter or a tool or a thing
in the hands of litigants or touts or like persons to be changed
every now and then according to the whims of the litigants or
control over them of unwanted touts or like persons on one hand
and the rule casts a duty on them that the Counsel should not
accept a brief in which an Advocate is already there to represent
the party who intends to engage him and should not put in
appearance for a party who has already been filed on the record of
the case unless and until the Counsel already on record given his
consent in writing or in some special circumstances and cases
where consents have not been obtained or could not be obtained
and produced before the Court, requires the Counsels, narrating
those circumstances and reasons why the consent could not be
obtained move application for permission and then the Court
having the power in such a case to grant permission to the second
Counsel to appear grants the permission after considering those
circumstances justifying the grant of permission. The second
object of the rule is to maintain certainly of representation of a
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party in the case by a specifically appointed Counsel and, thirdly,

as far as possible not to allow the parties litigants to abuse such a
situation and to make it (sic) of and cause for obtaining
adjournments which might otherwise be refused. See : Smt.
Champa Devi vs. U.P. State Electricity Board, 1992 (2) ARC 634
(All).

3.08. Government pleader to file only memorandum of appearance

and not vakalatnama : Order 27 Rule 9 CPC (as amended in UP)
reads thus : "In every case in which the Government Pleader
appears for the Government as a party on its own account, or for
the Government as undertaking, under the provisions of rule 8(1),
the defence of a suit against an officer of the Government, he shall,
in lieu of a vakalatnama, file a memorandum on unstamped paper
signed by him and stating on whose behalf he appears. Such
memorandum shall be, as nearly as may be, in the terms of the
prescribed form under the said Rule 9."

3.09. Government counsel need not file Vakalatnama : There is no

need for the counsel of State to file Vakalatnama under Order 3,
rule 1 CPC. State acts through counsel for State and he is entitled
to represent the state in all proceedings initiated in court. Memo of
appearance by counsel for state would be sufficient. See : Deputy
Collector Northern Sub-Division, Panaji vs. Comunidade of
Bambolim, AIR 1996 SC 148.

4.01. Unilateral change of counsel by party only after permission of

the court : If the counsel's instruction are unilaterally terminated at
the initiative of the client, the discharge of counsel can be by leave
of court, but counsel will be entitled to full fees. But, while a
client may have the luxury of changing as many counsel as he may
desire to chose but everyone of them whose instructions be
terminates unilaterally without a cause may be entitled to full fees.
Should the fees be not settled the court would determine, it on the
principle of quantum meriat. If counsel wants to abandon a client,
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he may seek a discharge from the court but he would not be

entitled to fees. No counsel will withdraw from a case except by
leave and permission of the court, no matter what that client may
say. And, no counsel should enter a case in which a counsel stands
engaged except with the prior permission of the lawyer who
already appears. A violation of the principle would be
unprofessional conduct by Rule 39 of the Standards of Professional
conduct and Etiquette framed by the Bar Council of India. Further
should there be allegations of misconduct against counsel, the
court may examine the content of the allegations for their veracity
and truth, and order of the court will rest on the circumstances. See
: Dr. Hari Nandan Singh Vs. U.P. Higher Education Services
Commission, Allahabad, 1992 ESC 311 (All)(DB).

4.02. Government pleader (DGC/ADGC) to act on behalf of the

Government : Order 27, rules 2, 4, 5, 6, 8-B, 9 and 10 CPC
empower the Government pleader (DGC/ADGC) to receive
notices etc and to act on behalf of the Government in courts.

5.01. Advocate bound to return papers to his client even in the event
of non-payment of fee : At any rate if the litigation is pending the
party has the right to get the papers from his advocate whom he
has changed so that the new counsel can be briefed by him
effectively. In either case it is impermissible for the former counsel
to retain the case bundle on the premise that fees is yet to be paid.
This right of the litigant is to be read as the corresponding
counterpart of the professional duty of the advocate. Therefore the
refusal to return the file to the client when he demands the same
amounts to misconduct of the advocate u/s. 35 of the Advocates
Act, 1961. Even if the advocate feels that he has any genuine claim
or grievance against his client, the appropriate course is to return
the brief with endorsement of no objection and agitate such right in
an appropriate forum in accordance with law and not indulge in
arm twisting methods by holding on to the brief. See :
(i) R.D. Saxena vs. Balram Prasad Sharma, AIR 2000 SC 2912
 16

(ii) New India Assurance Co. Ltd. vs. A.K. Saxena, AIR 2004 SC
311

5.02. Change of counsel and payment of fees to former counsel :

After change of counsel by the party, previous counsel cannot
insist upon fees till conclusion of proceedings. But where the
former counsel had worked till the stage of settlement of issues and
leading evidence on behalf of the party partly, the trial of suit had
thus partly concluded and therefore one fourth of the scheduled fee
was directed by the court to be paid to the counsel by the party and
the counsel was directed to give unconditional consent to engage
another advocate. See : C.S. Venkatasu-bramanian vs. State Bank
of India, AIR 1997 SC 2329.

5.03. Writ Petition by the counsel maintainable under Article 226 of

the Constitution to recover the remaining fees : A writ petition
by the counsel seeking a claim of his fees may be entertained and
considered by the High Court and the request by counsel for
directions in the matter relating to counsel fees ought to be
examined by the High Court. Upholding counsel's claim of fees,
the Supreme Court also gave directions that the fees due would be
paid to counsel with interest at the rate of 12 %. See :
(i) Govt. of Tamil Nadu Vs. R. Thillaibillalan, AIR 1991 SC 1231
(ii) Dr. Hari Nandan Singh Vs. UP Higher Education Services
Commission, Allahabad, 1992 ESC 311 (All)(DB)

5.04. Counsel cannot claim any fees if he himself withdraws from

the case : Counsel cannot claim any fees if he himself withdraws
from the case. See : Dr. Hari Nandan Singh Vs. UP Higher
Education Services Commission, Allahabad, 1992 ESC 311
(All)(DB).

5.05. Non-appearance by counsel in court for non-payment of fees

etc. amounts to misconduct : Where the counsel abstained from
appearing in the court for the party on the ground of non-payment
 17

of fees etc. and consequently the case was dismissed in default, it

has been held by the Allahabad High Court that non-payment of
fees etc. cannot be an excuse for non-appearance by counsel for the
party in the court. A counsel is bound to appear in court for his
client as soon as he files his Vakalatnama in the court and such
non-appearance on the part of counsel amounts to grave
misconduct towards the court. See : Narendra Kumar vs. ADJ,
2007 (67) ALR 530 (All)

6.01. Order to proceed ex-parte on absence of Advocate due to

condolence disapproved by the High Court : Where an
Advocate engaged by the party had not appeared before the Court
due to resolution of the Bar Association on Account of condolence
due to death of a senior lawyer and the court had directed to
proceed the matter ex-parte and dismiss the appeal, it has been held
by the Allahabad High Court that the appellate authority
committed a manifest error by showing disrespect to the resolution
of Bar Association for a genuine cause like attending the funeral of
one senior lawyer who had expired on that date. See : Ravindra
Nath Srivastava Vs State of UP, 2012 (117) RD 589 (All)

6.02. Party can realize cost from advocate if the case is decided ex-
parte for non appearance of the advocate in the court : When
ex-parte order is passed against the party due to absence of
advocate on the ground of their strike then if the court is satisfied,
it can allow the party to realize cost of setting aside the ex-parte
order on cost and with facility to the party to realize the amount
from his advocate. See :Raman Services (P) Ltd. vs. Subhash
Kapoor, 2001 (1) ARC 570 (SC)

6.03. Counsel cannot avoid to appear before court on the ground of

resolution passed by Bar Association to boycott a particular
court : If any counsel does not want to appear in a particular
Court, that too for justifiable reasons, professional decorum and
etiquette require him to give up his engagement in that Court so
 18

that the party can engage another counsel. But retaining the brief
of his client and at the same time abstaining from appearing in that
Court, that too not on any particular day on account of some
personal inconvenience of the counsel but as a permanent feature,
is unprofessional as also unbecoming of the status of an advocate.
No court is obliged to a adjourn a case because of the strike call
given by any Association of Advocates or a decision to boycott the
Courts either in general or any particular Court. It is the solemn
duty of every Court to proceed with the judicial business during
Court hours. No Court should yield to pressure tactics of boycott
calls or any kind of browbeating. See : Mahabir Prasad Singh Vs.
M/s. Jacks Aviation Pvt. Ltd., AIR 1999 SC 287 (para 10 ).

7.01. Consent or waiver not to confer jurisdiction or power on court

: No amount of waiver or consent can confer jurisdiction on a court
which it inherently lacks or where none exists. See : Vithalbhai
(P) Ltd. Vs. Union Bank of India, (2005) 4 SCC 315.
7.02. Admission or concession made wrongly by counsel not to bind
the party : A wrong concession or admission on question of law
made before court by counsel will not bind his client. Opposite
party cannot seek benefit on the basis of such concession or
admission. See :
1. Union of India vs. Mohanlal Likumal Punjabi, (2004) 3 SCC
628
2. Central Council for Research in Ayurveda & Siddha vs. Dr.
K. Santhakumari, (2001) 5 SCC 60
3. Uptron India Limited vs. Shammi Bhan, (1998) 6 SCC 538
4. Sanjeev Coke Mfg. Co. vs. Bharat Coking Coal Ltd., (1983) 1
SCC 147.

7.03. Concession given by counsel to opposite party by "not

pressing" the petition should be normally verified by the Court
before acting upon it : Where wife was granted maintenance by
the lower court under the Protection of Women from Domestic
Violence Act, 2005 and in appeal filed by the husband, the counsel
 19

engaged by the wife made an endorsement to the effect "not

pressed" and the High Court had then dismissed the appeal but the
wife had stated that she had never instructed her counsel not to
press her claim for maintenance, the Hon'ble Supreme Court has
held that before acting upon the said concession or endorsement of
the counsel, the High Court should have got the concession
verified and ought not to have accepted the statement of the
counsel of the wife without verification. See : Shalu Ojha Vs.
Prashant Ojha, (2015) 2 SCC 99.

8.01. Compromise on behalf of party when to be entered into by the

counsel ?: The counsel appearing for a party is fully competent to
put his signature to the terms of any compromise upon which a
decree can be passed in proper compliance with the provisions of
Order 23 Rule 3 CPC and such decree is perfectly valid, depending
on the authority conferred on the counsel in terms of the
vakalatnama. It will be prudent for counsel not to act on implied
authority except when warranted by the exigency of circumstances
demanding immediate adjustment of the suit by agreement or
compromise and the signature of the party cannot be obtained
without undue delay. In these days of easier and quicker
communication, such contingency may seldom arise. A wise and
careful counsel will no doubt arm himself in advance with the
necessary authority expressed in writing to meet all such
contingencies in order that neither his authority nor integrity is
ever doubted. This essential precaution will safeguard the personal
reputation of the counsel as well as uphold the prestige and dignity
of the legal profession. To insist upon the party himself personally
signing the agreement or compromise would often cause undue
delay, loss and inconvenience, especially in the case of non-
resident persons. It has always been universally understood that a
party can always act by his duly authorized representative. If a
power-of -attorney holder can enter into an agreement or
compromise on behalf of his principal, so can a counsel possessed
of the requisite authorization by vakalatnama act on behalf of his
 20

client. Not to recognize such capacity is not only to cause much

inconvenience and loss to the parties personally, but also to delay
the progress of proceedings in court. See : Y. Sleebachen & Others
Vs. State of Tamil Nadu through Superintending Engineer Water
Recourses Organization/Public works Department and Another,
(2015) 5 SCC 747 (paras 16 to 20).

8.02. Compromise by counsel : After the amendments in Order 23, rule

3 CPC in the year 1976, a compromise needs to be reduced in
writing and signed by the parties and not by the counsel alone. See:
1. Gurpreet Singh vs. Chatur Bhuj Goel, (1988) 1 SCC 270
2. Banwari Lal vs. Chando Devi, (1993) 1 SCC 581
3. Dr. Jitendra Kumar Jain vs. ADJ, Roorkee, AIR 2006 (NOC)
1248 (All)

8.03. Compromise by counsel alone invalid : A compromise memo

filed by counsel alone under Order 23, rule 3 CPC without
signatures of the parties is invalid. Compromise petition must be
signed by the parties as well. In the absence of signatures of the
parties, a compromise petition containing only the signature of the
counsel engaged by the parties should not be accepted by the
Court. See :
(i) Premlata Vs. First Addl. Civil Judge Meerut, 1998 (32) ALR
352 (All)
(ii) Lokumal Topandas Vs. Allahabad Bank, AIR 1998 All 398

8.04. Compromise by counsel held valid : The words ‘in writing and
signed by the parties’, inserted in Order 23, R. 3, CPC by the CPC
(Amendment) Act, 1976 necessarily mean and include duly
authorized representative and Counsel. Thus a compromise in
writing and signed by counsel representing the parties, but not
signed by the parties in person, is valid and binding on the parties
and is executable even if the compromise relates to matters
concerning the parties, but extending beyond the subject matter of
the suit. A judgment by consent is intended to stop litigation
 21

between the parties just as much as a judgment resulting from a

decision of the Court at the end of a long drawn out fight. A
compromise decree creates an estoppel by judgment. Counsel’s
role in entering into a compromise has been traditionally
understood to be confined to matters within the scope of the suit.
However, a compromise decree may incorporate not only matters
falling within the subject matter of the suit, but also other matters
which are collateral to it. The position before the amendment in
1976 was that, in respect of the former, the decree was executable,
but in respect of the latter, it was not executable, though admissible
as judicial evidence of its contents. See :
1. Byram Pestonji Gariwala vs. Union Bank of India, AIR 1991
SC 2234
2. Jineshwardas vs. Smt. Jagrani, 2003 (53) ALR 599 (SC)

8.05. Entering into compromise by counsel without consent of party

amounts to misconduct : Where an Advocate was not authorized
by the party to enter into compromise and the Advocate had yet
entered into compromise, it has been held by the Supreme Court
that the said act of the Advocate amounted to misconduct within
the meaning of Section 35 of the Advocates Act, 1961 and the
party was directed to approach the State Bar Council for
appropriate disciplinary action against the Advocate concerned.
See :
(i) Ram Asarey Vs. DDC, Faizabad, (1998) 6 SCC 480
(ii) Narain Pandey Vs Pannalal Pandey, 2013 (118) RD 674 (SC)

8.06. Compromise should be challenged before the Judge recording

the compromise and not in appeal : Party concerned should
approach the court which recorded the compromise in the first
instance rather than straight away filing appeals as it is judge
before whom the compromise was recorded who is privy to events
that led to the compromise order and is thus in a better position to
deal with validity of compromise. See : Y. Sleebachen & Others
Vs. State of Tamil Nadu through Superintending Engineer Water
 22

Recourses Organization/Public works Department and Another,

(2015) 5 SCC 747.

8.07. Concession made before court by counsel when binding on the

party ? : A concession made before court by counsel is binding on
the party whom he represents and such party cannot resile
therefrom subject to just exceptions. But a wrong concession made
by a counsel on point of law would not be binding on the party
concerned. Legal right possessed by a person, if waived,
enforcement thereof cannot be thereafter insisted upon. See :
BSNL vs. Subhash Chandra Kanchan, (2006) 8 SCC 279

9. Advocate not to substitute his name for the name of party : An

advocate cannot maintain a petition on behalf of his clients
(accused persons). In view of Sec. 30 of the Advocates Act, 1961,
an advocate cannot file a writ petition in his own name to pursue
the cause of his clients. See : Vinoy Kumar vs. State of U.P.,
(2001) 4 SCC 734

10. Party not to suffer for a bonafide mistake or negligence of his

counsel : If there is a bonafide mistake or negligence on the part of
the lawyer, the party should not be made to suffer. But it is equally
true that for the negligence of the counsel of one party, the other
party should not suffer. See : Smt. Leela Bhanott vs. Petrolube
India, (2006) 64 ALR 403 (All—D.B.)

11. Notice to counsel means notice to party himself (Order 3, rule 5

CPC) : According to Order 3, rule 5 CPC, notice given to counsel
is for all purposes a notice given to the concerned party whom he
represents. Mere fact that the counsel on being served, desires the
court to send notice to the party concerned, does not change the
position. A notice served on counsel is as good service as upon the
party himself. See :

1. Brijlal vs. VIIth ADJ, Allahabad, 1995 (13) LCD 62 (All)

 23

2. Sheo Ramdas Chela vs. Subhash Chandra, 1999 (36) ALR 324
(All)

12.01. “No Instruction” endorsement by counsel & its effect : Mere

fact that the counsel engaged by the party made an endorsement on
the notice sent to him that he had no instructions from his client
does not terminate his authority and he continues to be a counsel
for the party unless he formally withdraws from the case under
leave from court u/o. 3, rule 4(2) CPC. See :
1. Jyoti Prasad vs. Punjab National Bank, AIR 1963 All 374
2. Narendra Kumar vs. ADJ, 2007 (67) ALR 530 (All)
3. Ashok Kumar Dhiman vs. Smt. Chandrawati Mehta, 1996
(27) ALR 6 (All)
4. Bijli Cotton Mills Pvt. Ltd. vs. M/s. Chagan Mal Basti Mal,
AIR 1982 All 183 (D.B.)

12.02. “No Instruction” endorsement by counsel & necessity of fresh

notice to party : Where the court issued notice to the counsel
engaged by defendant but the counsel failed to appear and plead
for the defendant by recording endorsement of “no instruction” on
the notice with the result that the case was directed to proceed ex-
parte and ultimately the suit was decreed ex-parte against the
defendant and the counsel had not informed the defendant
regarding his non-appearance for him in the court and the court
had also not issued any fresh notice to the defendant under these
facts and circumstances and the defendant came to know of the ex-
parte decree only when he approached the counsel, it has been held
by the Supreme Court that the defendant cannot be said to be
careless and negligent and ex-parte decree was found liable to be
set aside. In view of the provisions under Order 3, rule 4(2) CPC, a
mere statement by counsel that he has no instructions from his
client, does not terminate his authority unless he submits the same
in writing and obtains permission of the court. See :
1. Malkiat Singh vs. Joginder Singh, AIR 1998 SC 258
 24

2. Ashok Kumar Dhiman vs. Smt. Chandrawati Mehta, 1996

(27) ALR 6 (All)

12.03. “No contact with client” endorsement by counsel & its effect :
Where despite repeated communications by counsel to the party,
no further instructions were received by the counsel from his client
and the statement of the counsel to the effect that the client had no
contact for instructions with the counsel engaged by him, was
recorded by the court, it has been held that the dismissal of the
appeal for want of prosecution on the part of the
party/appellant/client was proper. See : Subedar vs. Ram
Swaroop, 2006 (65) ALR 582 (All)

12.04. Non-appearance by counsel in court on the ground of “no

contact by client” amounts to misconduct : Where the counsel
had abstained from appearing in the court for the party on the
ground that his client did not respond to several letters sent by the
counsel to the client and the counsel had not informed his client for
his non-appearance in the court and the case was dismissed in
default, it has been held by the Allahabad High Court that a
counsel is bound to appear in the court for his client as soon as he
files his Vakalatnama in the court and such non-appearance by the
counsel amounts to grave misconduct towards the court. See :
Narendra Kumar vs. ADJ, 2007 (67) ALR 530 (All)

13.01. Advocate has no right to remain absent from court : An

advocate has no right to remain absent from court when the case of
his client comes up for hearing. He is duty bound to attend the case
in court or to make an alternative arrangement. Non-appearance in
court without “sufficient cause” cannot be excused. Such absence
is not only unfair to the client of the Advocate but also unfair and
dis-courteous to the court and can never be countenanced. When a
party engages an advocate who is expected to appear at the time of
hearing but fails to so appear, normally, a party should not suffer
on account of default or non-appearance of the Advocate. In terms
 25

of the explanation to Order 41, Rule 17 CPC, an appeal can be

dismissed in default and not on merits. In the event of default by
the appellant or his counsel, the appeal can only be dismissed in
default. See :
1. Secretary, Department of Horticulture, Chandigarh vs. Raghu
Raj, (2008) 13 SCC 395
2. Rafiq vs. Munshilal, (1981) 2 SCC 788
3. Lachi Tewari vs. Director of Land Records, 1984 Supp SCC
431
4. Mangilal vs. State of M.P., (1994) 4 SCC 564
5. Tahil Ram Issardas Sadarangani vs. Ramchand Issardas
Sadarangani, 1993 Supp (3) SCC 256

13.02. Hearing of counsel must in criminal cases whether trial,

appeal or revision : In the case of Md. Sukur Ali vs. State of
Assam, 2011 CrLJ 1690 (SC), it has been held by the Supreme
Court that criminal case, whether trial, appeal or revision should
not be decided against accused in absence of is counsel. Liberty of
a person is the most important feature of our Constitution. Article
21 which guarantees protection to life and personal liberty is the
most important fundamental right of the fundamental rights
guaranteed by the Constitution. Article 21 can be said to be the
‘heart and soul’ of the fundamental rights. It is only a lawyer who
is conversant with law who can properly defend an accused in a
criminal case. Hence, if a criminal case (whether a trial or
appeal/revision) is decided against an accused in the absence of
counsel, there will be violation of Article 21 of the Constitution.
As such even if the counsel for the accused does not appear
because of his negligence or deliberately, even then the court
should not decide the criminal case against the accused in the
absence of his counsel since the accused in a criminal case should
not suffer for the fault of his counsel and in such a situation the
court should appoint another counsel as amicus curiae to defend
the accused. Earlier decisions of the Hon’ble Supreme Court
rendered in the matters of (i)A.S Mohammed Rafi vs. State of T.N,
 26

AIR 2011 SC 308, (ii) Man Singh vs. State of M.P, (2008) 9 SCC
542 and (iii) Bapu Limbaji Kamble vs. State of Maharashtra,
(2005) 11 SCC 413 have been relied on in the case of Md. Sukur
Ali.

13.03. Hearing of accused or his counsel not necessary when their

absence is deliberate : Relying on its earlier Three-Judge Bench
decision rendered in the case of Bani Singh & Others Vs. State of
UP, AIR 1996 SC 2439, the Two-Judge Bench of the Hon’ble
Supreme Court has, in the case noted below, declared its earlier
Two-Judge Bench decisions in M.D. Sukur Ali Vs. State of Assam,
AIR 2011 SC 1222 and in A.S. Mohammed Rafi Vs. State of
Tamil Nadu, AIR 2011 SC 308 per in curiam by holding (in para
36) thus : “In view of the aforesaid annunciation of law, it can
safely be concluded that the dictum in M.D. Sukur Ali Vs. State of
Assam, AIR 2011 SC 1222 to the effect that the court cannot
decide a criminal appeal in the absence of counsel for the accused
and that too if the counsel does not appear deliberately or shows
negligence in appearing, being contrary to the ratio laid down by
the larger Bench in Bani Singh & Others Vs. State of UP, AIR
1996 SC 2439 (Three-Judge Bench) is per incuriam. We may
hasten to clarify that barring the said aspect, we do not intend to
say anything on the said judgment as far as engagement of amicus
curiae or the decision rendered regard being had to the other
factual matrix therein or the role of the Bar Association or the
lawyers. Thus, the contention of the learned counsel for the
appellant that the High Court should not have decided the appeal
on its merits without the presence of the counsel does not deserve
acceptance. That apart, it is noticeable that after the judgment was
dictated in open court, the counsel appeared and he was allowed to
put forth his submissions and the same have been dealt with.” See :
K.S. Panduranga Vs. State of Karnataka, AIR 2013 SC 2164 (para
36).
Note : In view of the larger Bench (Three-Judge Bench) decision in Bani
Singh & Others Vs. State of UP, AIR 1996 SC 2439, the Division
 27

Bench decision of the Hon'ble Supreme Court in K.S. Panduranga

Vs. State of Karnataka, AIR 2013 SC 2164 (para 36) has to be
followed and not the other contrary smaller Bench decisions.

13.04. Advocate has duty to represent an arrested/detained person

:Where the Advocate husband of a selected Civil Judge (Junior
Division) was practicing as an Advocate in the courts at Markapur
(Andhra Pradesh) and the said Advocate was engaged and
representing certain accused persons allegedly belonging to CPI
(Maoist) Party, a prohibited organization, and on receiving a
verification report from police to that effect, the selected female
Civil Judge (Junior Division) was not issued appointment letter on
the ground that her Advocate husband was representing the said
accused persons belonging to a prohibited organization like CPI
(Maoist) Party, setting aside the said decision of the Government
of Andhra Pradesh regarding not issuing appointment letter to the
said selectee on the ground aforesaid, it has been held by the
Hon'ble Supreme Court that in view of the provisions of the Article
22(1) of the Constitution of India, Section 49 of the Advocates
Act, 1961 and Rules 11 & 15 of the Bar Council of India Rules,
1975, an Advocate representing an arrested or detained person
cannot be criticized and every arrested/detained person has
constitutional right to be defended lawfully and an Advocate has
corresponding duty to represent him. See : Smt. K. Vijaya
Lakshmi Vs Govt. of AP, AIR 2013 SC 3589.

14.01. Counsel deemed to represent the party in court unless

withdraws from the case under order of court (Order 3, rule 4
CPC) : According to Order 3, rule 4 CPC a counsel is deemed to
continue to represent the party in the court unless he formally
withdraws from the case under order of the court. See :
1. Ashok Kumar Dhiman vs. Smt. Chandrawati Mehta, 1996 (27)
ALR 6 (All)
2. Smt. Champa Devi vs. U.P. State Electricity Board, 1992 (2)
ARC 634 (All)
 28

14.02. Withdrawal from case by counsel without leave from court &
its effect : Where the counsel engaged by the party had recorded
an endorsement to the effect “I withdraw” it has been held that
such endorsement is to be treated as an action without any leave
from the court which cannot be taken as a good ground for setting
aside the ex-parte decree by way of an application under Order 9,
rule 13 CPC. See : Smt. Veena Agarwal vs. M/s. Unjha Ayurvedic
Pharmacy, 2007 (67) ALR 282 (All)(DB)

15. Death of the party and the duty of counsel (Order 22, rule 10-A
CPC) : Whenever a pleader appearing for a party to the suit comes
to know of the death of that party, he shall inform the Court about
it, and the Court shall thereupon give notice of such death to the
other party, and, for this purpose, the contract between the pleader
and the deceased party shall be deemed to subsist.

16. Remedy of the client against frauds etc. of his counsel : Where
the suit was dismissed in default because of the default of the
counsel engaged by the party and the counsel had failed not only to
inform his client but deliberately misled him and practiced
systematic fraud on his client, it has been held by the Allahabad
High Court that the client is entitled to all assistance from the court
for setting right the injustice done to him. See : M/s. Narain
Agricultural Corporation vs. Allahabad Bank, Civil Lines,
Azamgarh, 1995 (13) LCD 569 (All).

17. Verbal service of notice on pleader : There is no ground to

construe the expression “date of service of notice” to mean only a
notice in writing served in a formal manner. When the legislature
used the word “notice” it must be presumed to have borne in mind
that it means not only a formal intimation but also an informal one.
Similarly, it must be deemed to have in mind the fact that service
of a notice would include constructive or informal notice. See :
 29

Nilkantha Sidramappa Ningashetti vs. Kashinath Somanna

Ningashetti, AIR 1962 SC 666 (Four-Judge Bench)

18. Supreme Court advocate entitled to appear and plead in all

High Courts : An advocate of the Supreme Court becomes
entitled as of right to appear and plead as well as to act in all the
High Courts including the High Court in which he was already
enrolled, without any differentiation being made for this purpose
between the various jurisdictions exercised by those courts. See :
Aswini Kumar vs. Arabinda Bose, AIR 1952 SC 369

19. Duty of junior counsel appearing with senior advocate :

Ordinarily, when a junior counsel and senior advocate appear in a
case, it would be an adventurist act exposing himself to great risk
on the part of the junior to report a compromise without consulting
his senior, even assuming that the party was not available. It is
right to stress that counsel should not rush in with a razi where due
care will make them fear to treat, that a junior should rarely
consent on his own when there is a senior in the brief, that a party
may validly impugn an act of compromise by his pleader if he is
available for consultation but is by-passed. The lawyer must be
above board, specially if he is to agree to an adverse verdict. See :
Smt. Jamilabai Abdul Kadar vs. Shankarlal Gulabchand, AIR 1975
SC 2202

20.01. Time limit for arguments : Order 18, rule 2, sub-rule (3-D) CPC,
as amended since 1.7.2002 provides that the court shall fix such
time limits for the oral arguments by either of the parties in a case
as it thinks fit.

20.02. Written arguments : The counsel for parties may submit their
concise written arguments with the permission of the court under
Order 18, rule 2, sub-rule (3-A) CPC as amended w.e.f. 1.7.2002.
 30

20.03. No adjournment to be granted for filing written arguments :

As per the amended provisions of Order 18, rule 2, sub-rule (3-C)
CPC w.e.f. 1.7.2002, no adjournment shall be granted for the
purposes of filing the written arguments unless the court, for
reasons to be recorded in writing, considers it necessary to grant
such adjournment.
20.04. No lengthy arguments : The Supreme Court and the Allahabad
High Court have held that a counsel should not advance lengthy
arguments so that precious time of court may not be wasted. See :
1. Gauri Shanker vs. DDC Allahabad, 2005 (4) AWC 3259 (All)
2. LIC of India vs. Escorts Ltd., AIR 1986 SC 1370

20.05. No sentimental arguments : Sentimental arguments cannot be

entertained. See : Gopal Singh vs. State Cadre Forest Officers’
Association, AIR 2007 SC 1878.

21.01. Public Prosecutors : Their powers & functions : In criminal

matters, public prosecutors are appointed u/s 24 CrPC. Public
Prosecutor is a statutory officer of high regard. See :
1. Sidharth Vashisth alias Manu sharma Vs. State of NCT of Delhi,
AIR 2010 SC 2352
2. Shiv Kumar Vs. Hukam chand, (1999)7 SCC 467

21.02.Public Prosecutor appointed u/s 24 CrPC is an officer of court :

A public prosecutor appointed u/s 24 CrPC is an officer of court.
He has to act objectively and not according to dictates of the State
Govt. See : Captain Amarinder Singh Vs. Prakash Singh Badal,
(2009) 6 SCC 260 (Three-Judge Bench).
21.03.Appearance by Public Prosecutors (Section 301 CrPC) : (1)
The Public Prosecutor or Assistant Public Prosecutor in charge of a
case may appear and plead without any written authority before
any Court in which that case is under inquiry, trial or appeal.
(2) If in any such case any private person instructs a pleader to
prosecute any person in any Court, the Public Prosecutor or
Assistant Public Prosecutor in charge of the case shall conduct the
 31

prosecution, and the pleader to instructed shall act therein under

the directions of the Public Prosecutor or Assistant Public
Prosecutor, and may, with the permission of the Court, submit
written arguments after the evidence is closed in the case.

21.04.Permission to conduct prosecution (Section 302 CrPC) : (1)

Any Magistrate inquiring into or trying a case may permit the
prosecution to be conducted by any person other than police officer
below the rank of Inspector; but no person, other than the
Advocate-General or Government Advocate or a Public Prosecutor
or Assistant Public Prosecutor, shall be entitled to do so without
such permission.
(2) Any person conducting the prosecution may do so
personally or by a pleader.

21.05. Private counsel not to lead evidence on behalf of prosecution :

A privately engaged counsel may not have any liberty to lead
prosecution evidence or to do the duties entrusted by law to a
public prosecutor under Sections 301(1) & 301(2) CrPC or Section
225 CrPC. However, complainant can engage a private counsel
but such counsel cannot get the status of a public prosecutor.
Public prosecutor cannot abdicate his powers in favour of a person
who is not a public prosecutor. See : Rajesh Kumar Vs. State of
UP, 1998 (37) ACC 867 (All).

21.06. Only public prosecutor to conduct prosecution : Where in a

complaint case instituted by private complainant, offences are
triable exclusively by court of sessions, in the sessions court, a
public prosecutor alone can conduct prosecution. See : Rosy Vs.
State of Kerala, 2000 (40) ACC 444 (SC).

21.06a. A private counsel engaged by victim/ complainant cannot be

allowed to examine or cross-examine witnesses and submit oral
arguments on behalf of public prosecutor: Explaining the
provisions of Section 24(8) read with Sections 225, 301, 311
 32

CrPC, it has been held by the Supreme Court that the extent of
assistance by victim’s counsel to the Public Prosecutor and the
manner of its giving would depend on the facts and circumstances
of each case. A victim’s counsel should ordinarily be not given the
right to make oral arguments or examine or cross-examine the
witnesses. The balance inherent in the scheme of the CrPC should
not be tampered with and the prime role accorded to the public
prosecutor not diluted. Even if there is a situation where the public
prosecutor fails to highlight some issues of importance despite the
same having been suggested by the victim’s counsel, the victim’s
counsel may still not be given the unbridled mantle of making oral
arguments or examining witnesses. If the victim’s counsel finds
that the Public Prosecutor has not examined a witness properly
and not incorporated his suggestions either, he may bring these
questions to the notice of the court. If the Judge finds merit in
them, he may take action accordingly by invoking his powers u/
311 CrPC or u/s 165 of the Evidence Act. See: Rekha Murarka
Vs. State of W.B., (2020) 2 SCC 474.

21.07. A private counsel engaged by complainant can act only under

guidance of the public prosecutor : A private counsel engaged by
the complainant can act only under the guidance and instructions
of the public prosecutor who is in-charge of the prosecution u/s
301, 302, 225 CrPC. See :
(1) Sidharth Vashisth alias Manu sharma Vs. State of NCT of
Delhi, AIR 2010 SC 2352
(2) Shiv Kumar Vs. Hukum Chand, 1999 (39) ACC 715 (SC)
(3) Kartika Chandra Bhattacharya Vs. State of UP, 1993 (30)
ACC 688 (All)
(4) Suresh Chandra Sharma Vs. State of UP, 1986 (23) ACC 234
(All)
(5) Iqbal Ahmed Vs. Ketki Devi, 1976 CrLJ 244 (All)

22. Debarring advocate from practice found having indulged in

winning over prosecution witness / role of electronic media /
 33

sting operation / power of courts in such matters. See : R.K

Anand Vs. Registrar Delhi High Court, (2009) 8 SCC 106.

23. Refusal by Bar to defend certain accused unethical :Where the

Coimbatore Bar Association, Tamil Nadu had passed a resolution
that no lawyer will defend the accused policemen who had
allegedly clashed with the lawyers, it has been held by the
Supreme Court that the resolution of the Bar Association that they
will not defend certain accused persons (policemen) is against
constitution, statute and the professional ethics. It is the duty of
lawyers to defend irrespective of consequences. See : A.S.
Mohammed Rafi Vs. State of TN, AIR 2011 SC 308.

24.01. Hearing of counsel must in criminal cases : Relying upon earlier

Supreme Court decisions rendered in the matters of (i) A.S
Mohammed Rafi vs. State of T.N, AIR 2011 SC 308 (ii) Man
Singh vs. State of M.P, (2008) 9 SCC 542 & (iii) Bapu Limbaji
Kamble vs. State of Maharashtra, (2005) 11 SCC 413, it has been
held by the Supreme Court in Md. Sukur Ali vs. State of Assam,
2011 CrLJ 1690 (SC), that “criminal case, whether trial, appeal or
revision should not be decided against accused in absence of his
counsel. Liberty of a person is the most important feature of our
Constitution. Article 21 which guarantees protection to life and
personal liberty is the most important fundamental right of citizens
guaranteed by the Constitution. Article 21 can be said to be the
‘heart and soul’ of the fundamental rights. It is only a lawyer who
is conversant with law who can properly defend an accused in a
criminal case. Hence, if a criminal case (whether a trial or
appeal/revision) is decided against an accused in the absence of
counsel, there will be violation of Article 21 of the Constitution.
As such even if the counsel for the accused does not appear
because of his negligence or deliberately, even then the court
should not decide the criminal case against the accused in the
absence of his counsel since the accused in a criminal case should
not suffer for the fault of his counsel and in such a situation the
 34

court should appoint another counsel as amicus curiae to defend

the accused. Even in the Nuremberg trials the Nazi war criminals
responsible for killing millions of persons, were yet provided
counsel. Therefore when we say that the accused should be
provided counsel we are not bringing into existence a new
principle but simply recognizing what already existed and which
civilized people have long enjoyed. The Founding Father of our
constitution were themselves freedom fighters who had seen civil
liberties of our people trampled under foreign rule, and who had
themselves been incarcerated for long period under the formula
‘Na vakeel, na daleel, na appeal’ (No lawyer, no hearing no
appeal). Many of them were lawyers by profession, and knew the
importance of counsel, particularly in criminal cases. It was for this
reason that they provided for assistance by counsel under Article
22(1), and that provision must be given the widest construction to
effectuate the intention of the Founding Fathers.”

24.02. Refusal to grant time to engage a new lawyer of choice of

accused when proper ? : Where the accused wanted to delay
framing of charges against him and his prayer to engage a new
lawyer of his choice was refused by the Magistrate on the ground
that some advocate had already appeared for him, it has been held
by the Hon'ble Supreme Court that it cannot be concluded that the
accused was not given chance to engaged counsel of his/her
choice. See : Ashish Chadha Vs. Smt. Asha Kumari & another,
AIR 2012 SC 431.

24.03. Magistrate not providing assistance of lawyer to accused liable

to disciplinary proceedings : Every accused unrepresented by a
lawyer has to be provided a lawyer at the commencement of the
trial, engaged to represent him during the entire course of the trial.
Even if the accused does not ask of a lawyer or he remains silent, it
is the Constitutional duty of the Court to provide him with a lawyer
before commencing the trial. Unless the accused voluntarily
makes an informed decision and tells the Court, in clear and
 35

unambiguous words, that he does not want the assistance of any

lawyer and would rather defend himself personally, the obligation
to provide him with a lawyer at the commencement of the trial is
absolute, and failure to do so would vitiate the trial and the
resultant conviction and sentence, if any, given to the accused. But
the failure to provide a lawyer to the accused at the pre-trial stage
may not have the same consequence of vitiating the trial. It may
have other consequences like making the delinquent magistrate
liable to disciplinary proceedings, or giving the accused a right to
claim compensation against the State for failing to provide him
legal aid. But it would not vitiate the trial unless it is shown that
failure to provide legal assistance at the pre-trial. That would have
to be judged on the facts of each case. (paras 487, 488) See :
Mohammed Ajmal Mohammad Amir Kasab alias Abu Mujahid
Vs. State of Maharashtra, 2012 CriLJ 4770 (SC)

24.04. Assistance of lawyer to be provided to the accused even when

he does not so ask : Every accused unrepresented by a lawyer has
to be provided a lawyer at the commencement of the trial, engaged
to represent him during the entire course of the trial. Even if the
accused does not ask of a lawyer or he remains silent, it is the
Constitutional duty of the Court to provide him with a lawyer
before commencing the trial. Unless the accused voluntarily
makes an informed decision and tells the Court, in clear and
unambiguous words, that he does not want the assistance of any
lawyer and would rather defend himself personally, the obligation
to provide him with a lawyer at the commencement of the trial is
absolute, and failure to do so would vitiate the trial and the
resultant conviction and sentence, if any, given to the accused. But
the failure to provide a lawyer to the accused at the pre-trial stage
may not have the same consequence of vitiating the trial. It may
have other consequences like making the delinquent magistrate
liable to disciplinary proceedings, or giving the accused a right to
claim compensation against the State for failing to provide him
legal aid. But it would not vitiate the trial unless it is shown that
 36

failure to provide legal assistance at the pre-trial. That would have

to be judged on the facts of each case. (paras 487, 488) See :
Mohammed Ajmal Mohammad Amir Kasab alias Abu Mujahid
Vs. State of Maharashtra, 2012 CrLJ 4770 (SC).

25.01. State Government not bound to renew or continue the

engagement of DGC & ADGC (Civil or Criminal) : While
setting aside the Division Bench decision dated 05.11.2014 of the
Lucknow Bench of the Hon'ble Allahabad High Court, the Hon'ble
Supreme Court, in the case noted below, has ruled that the
appointment to the post of District Government Counsel, civil or
criminal, is a professional appointment. The LR Manual is not a
law under Article 13 of the Constitution of India. The DGC or
ADGC cannot claim a legal right for renewal of their appointment.
The State Govt. is not under a legal duty to continue their
engagement. The Supreme Court directed that fresh appointments
to the posts of DGC/ADGC, civil or criminal, be made by keeping
in view the observations of the Supreme Court already made in the
case of State of UP Vs. Johri Mal, (2004) 4 SCC 714. See : State
of UP Vs. Ajay Kumar Sharma, 2016 (1) ESC 41 (SC).

25.02. Government free to appoint its counsel and to abolish their

post : The appointment of the lawyers on the panel of Brief
Holders is made by the State Government only in consultation with
the Advocate General who is its own officer and from among the
advocates of the High Court who have completed a minimum of
five years practice at he Bar. The selection of Brief Holders is not
made after open competition. Their appointment is purely at the
discretion of the State Government. The Brief Holders are further
appointed to handle that work which cannot be attended to by the
Government Advocate and Standing Counsel. No salary or any
other kind of monthly remuneration is payable to them. They are
paid per brief handled by them. They are paid per brief handled by
them. They are not barred from private practice or from accepting
cases against the Government. It will thus be apparent that their
 37

appointment is in supernumerary capacity. It is necessitated

because there may be work which cannot be attended to by the
Government Advocate and the Chief Standing Counsel. They are
not assured of any regular work much less any regular fee or
remuneration. They get brief only if the Government Advocate
and Chief Standing Counsel are over worked and not otherwise.
They are like ad hoc counsel engaged for doing a particular work
when available. Their only qualification is that they are on the
panel of the counsel to be so appointed for handling the surplus
work. The Supreme Court, therefore, is at a loss to understand as to
how any fault can be found with the Government if the
Government has not though it fit to abolish the said system and to
appoint each time special counsel for special cases in their place.
See : State of U.P. Vs. U.P. State Law Officers Association, 1994
AIR SC 1654.

26. Punishment of Advocates for misconduct (Section 35) : Section

35 of the Advocates Act, 1961 empowers the State Bar Councils to
refer complaint received against an Advocate for misconduct to its
Disciplinary Committee. Similar power has also been conferred by
Section 36 on the Bar Council of India which is also the appellate
authority against the punishment awarded by the State Bar
Councils. On being found guilty, the Bar Council may suspend or
debar the Advocate from practicing in any court or before any
authority or person in India. Important cases on disciplinary
proceedings against Advocates are as under :
(i) N.G. Dastane Vs. Shrikant Shivade, AIR 2001 SC 2028
(ii) S. Narayanappa Vs. CIT, Bangalore, AIR 1967 SC 523

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