Advocate Can't Be Prosecuted For Client's Acts Merely For Sending Legal Notice On Instruction: Orissa High Court
If every unsuccessful legal opinion could lead to criminal action, Bar won't be able to function independently, Court said.
The Orissa High Court has held that an Advocate cannot be criminally prosecuted merely for sending legal notice to a party on a client's instructions, without he being a part of any criminal conspiracy. [2026 LiveLaw (Ori) 104]
While emphasizing immunity enjoyed by legal professionals for acts done in the course of dispensing professional obligations, the Bench of Dr. Justice Sanjeeb Kumar Panigrahi observed–
“If every unsuccessful legal opinion or every factual representation made by a client could retrospectively become the foundation for criminal prosecution of the advocate, the Bar would cease to function as an independent component of the justice-delivery system. The BCI rules themselves recognise the advocate's duty to defend an accused irrespective of the advocate's personal opinion concerning guilt.”
The petitioner Bijayananda Panda, an Advocate by profession, prepared a legal notice for dishonour of a cheque, punishable under Section 138 of the Negotiable Instruments Act, 1881, by affixing his official letter head and dispatched the same to the address of the complainant. He purportedly sent the legal notice on the advice of his senior, under whom he started legal practice, and on behalf of a client of such senior.
Upon receipt of the notice, the complainant filed an FIR under Sections 420, 265, 406, 120B of the IPC read with Section 19 of the Orissa Money Lenders Act, 1939 and Section 4 of the Prevention of Money Laundering Act, 2002, arraigning the petitioner, his senior and two other accused persons. It was alleged by the complainant that the said client of the petitioner's senior had lent money to him and retained certain signed blank cheques. Despite repayment of the debt, he did not return the blank cheque and pressurized for illegal gains.
The petitioner had earlier sought pre-arrest bail, which was granted to him by the High Court in 2018. Subsequently, charge-sheets were submitted against all the accused person, including the petitioner. Seeking relief from such criminal prosecution, the petitioner filed this petition under Section 482 CrPC, seeking to quash the pending proceedings.
The vital question which arose for consideration was, “Can an Advocate, who issues a legal notice strictly on the instructions of his senior and on behalf of a named client, can be arraigned as a co-conspirator, especially in the absence of any independent material demonstrating his knowledge of, or active participation in, the underlying wrong?”
At the very outset, Justice Panigrahi made it clear that an Advocate discharging his professional duty of drafting or having correspondence, including notices under Section 138 of the NI Act, on the instructions of his client, does not thereby become a guarantor of the truth of the averments contained therein.
The Court made it abundantly clear that an Advocate does not enjoy blanket immunity from criminal prosecution, but the litmus test is whether any prima facie material exists to indicate that the Advocate had knowledge of the illegality underlying the client's instructions or that he was a willing and knowing party to the conspiracy alleged.
Examined against the aforesaid test, the Court noted, nothing on record suggests that the petitioner had knowledge of the alleged scheme to extort money through misuse of blank cheques, or that he participated in any meeting, negotiation, or transaction connected therewith. Therefore, it was held–
“In the absence of such connecting material, to permit the machinery of criminal law to proceed against an advocate merely because he rendered professional assistance in good faith would be to confuse professional association with criminal complicity, negligence with mens rea, and an erroneous exercise of professional judgment with participation in a criminal conspiracy. Criminal law, which visits penal consequences upon culpable conduct, cannot be permitted to operate upon such a slender and uncertain foundation.”
Resultantly, the pending criminal trial against the petitioner was quashed, while keeping the proceedings alive against other accused persons.
Case Title: Bijayananda Panda v. State of Odisha & Ors.
Case No: CRLMC No. 3396 of 2025
Date of Judgment: August 21, 2026
Counsel for the Petitioner: Mr. Lalit Kumar Maharana, Advocate
Counsel for the Opposite Party/State: Ms. Gayatri Patra, Additional Standing Counsel
Citation: 2026 LiveLaw (Ori) 104