When Advocate shall be liable for prosecution U/S 420 of IPC?
In Pandurang Dattatraya Khandekar vs. Bar
Council of Maharashtra & Ors. (1984) 2 SCC 556,
this Court held that “…
“8. There is a world of difference between the
giving of improper legal advice and the giving of
wrong legal advice. Mere negligence
unaccompanied by any moral delinquency on the
part of a legal practitioner in the exercise of his
profession does not amount to professional
misconduct.”
Therefore, the liability against an opining
advocate arises only when the lawyer was an active
participant in a plan to defraud the Bank. In the
given case, there is no evidence to prove that A-6
was abetting or aiding the original conspirators.
However, it is beyond doubt that a lawyer owes
an “unremitting loyalty” to the interests of the client
and it is the lawyer’s responsibility to act in a
manner that would best advance the interest of the
client. Merely because his opinion may not be
acceptable, he cannot be mulcted with the criminal
prosecution, particularly, in the absence of tangible
evidence that he associated with other conspirators.
At the most, he may be liable for gross negligence or
professional misconduct if it is established by
acceptable evidence and cannot be charged for the
offence under Sections 420 and 109 of IPC along
with other conspirators without proper and
acceptable link between them. It is further made
clear that if there is a link or evidence to connect
him with the other conspirators for causing loss to
the institution, undoubtedly, the prosecuting
authorities are entitled to proceed under criminal
prosecution. Such tangible materials are lacking in
the case of the respondent herein.”
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION NO. 102 of 2012
RAMESHBHAI VALLABHBHAI KORAT....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
CORAM: HONOURABLE MR.JUSTICE R.D.KOTHARI
Date : 24/07/2014
Citation; 2015(3) Crimes 524 GUJ
Council of Maharashtra & Ors. (1984) 2 SCC 556,
this Court held that “…
“8. There is a world of difference between the
giving of improper legal advice and the giving of
wrong legal advice. Mere negligence
unaccompanied by any moral delinquency on the
part of a legal practitioner in the exercise of his
profession does not amount to professional
misconduct.”
Therefore, the liability against an opining
advocate arises only when the lawyer was an active
participant in a plan to defraud the Bank. In the
given case, there is no evidence to prove that A-6
was abetting or aiding the original conspirators.
However, it is beyond doubt that a lawyer owes
an “unremitting loyalty” to the interests of the client
and it is the lawyer’s responsibility to act in a
manner that would best advance the interest of the
client. Merely because his opinion may not be
acceptable, he cannot be mulcted with the criminal
prosecution, particularly, in the absence of tangible
evidence that he associated with other conspirators.
At the most, he may be liable for gross negligence or
professional misconduct if it is established by
acceptable evidence and cannot be charged for the
offence under Sections 420 and 109 of IPC along
with other conspirators without proper and
acceptable link between them. It is further made
clear that if there is a link or evidence to connect
him with the other conspirators for causing loss to
the institution, undoubtedly, the prosecuting
authorities are entitled to proceed under criminal
prosecution. Such tangible materials are lacking in
the case of the respondent herein.”
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION NO. 102 of 2012
RAMESHBHAI VALLABHBHAI KORAT....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
CORAM: HONOURABLE MR.JUSTICE R.D.KOTHARI
Date : 24/07/2014
Citation; 2015(3) Crimes 524 GUJ
https://www.lawweb.in/2015/11/when-advocate-shall-be-liable-for.html
