Bar Associations Cannot Pass Resolutions Against Representing A Person, Shall Amount To Violation Of Constitution: Madras High Court

Justice K Murali Shankar of the Madurai Bench was considering a bail application moved by three accused who were in judicial custody and charged for offences punishable under Section 294(b), 427,448,324,307,506(ii) IPC, and Section 4 of TN Prohibition of Harassment of Women Act 2002.

The case against the petitioners was that they had illegally trespassed into the property of the de facto complainant, abused them with filthy language, and attacked the defacto complainant and his wife with knife, sword, and wooden logs and caused serious injuries, and later threatened them with dire consequences.

The petitioners stated that the Karaikudi Bar Association had passed a resolution stating that no one should file bail applications for the petitioners before the Karaikudi Judicial Magistrate Court. When an advocate from another district filed a bail petition, the members of the Bar Association prevented the advocate from appearing before the concerned court. The bail application was subsequently dismissed for non-prosecution. The bar members also prevented the petitioner's counsel from filing a copy application for getting a dismissal order and thereby prevented them from filing any bail petition before the District Court.

The defacto complainant entered appearance and objected the bail petition on the ground that it is not maintainable directly before the High Court and that the first and second petitioner brutally attacked him and his wife with the help of the third petitioner who was a hooligan. However, the Additional Public Prosecutor that the contention of the de facto complainant that the third petitioner was a hooligan was incorrect.

The court observed that the jurisdiction conferred on the High Court and the Sessions Court for entertaining a petition for anticipatory bail and regular bail under Section 438 and 439 of the Civil Procedure Code is concurrent in nature. However, the generally accepted procedure was that when two forums are available, the party is first expected to approach the lower Forum, except in rare and special circumstances.

Elaborating on the "rare and special circumstances", the court discussed the judgment of Allahabad High Court in Vinod Kumar v. the State of UP and another (2019), where the court had held that a bail application can be directly filed in the High Court provided there are strong, cogent, compelling and special circumstances.

The court was satisfied that there was an unusual and exceptional reason for moving the high court directly. The petitioners were prohibited from representing their case before the Magistrate as a result of the resolution passed by the Bar Association.

On the aspect of the Bar Association resolution against representing the petitioners, the court relied on the decision of the Supreme Court in A.S Mohammed Rafeeq v. State of Tamil Nadu rep. by Home Department and others (2010) where the court observed as under:

"Every person, however, wicked, depraved, vile, degenerate, perverted, loathsome, execrable, vicious or repulsive he may be regarded by society has a right to be defended in a court of law and correspondingly it is the duty of the lawyer to defend him."

Thus, the court observed that such resolutions are against professional ethics. Whenever a client was ready to pay the fee, if the lawyer was not engaged otherwise, it was his professional duty to not refuse a brief. It is against the great traditions of the Bar which has always stood up for defending persons accused of a crime. Such a resolution is, in fact, a disgrace to the legal community. The courts have taken a similar stand in Francis Thomas v. State of Haryana (2017) and B.T. VENKATESH and others v. State of Karnataka represented by the Chief Secretary and Others (2020).

The court, thus, allowed the bail application of the petitioners. Further, the court sought an explanation from the Karaikudi Bar Council on why it should not be derecognized. To this, the office bearers submitted an explanation stating that they passed the resolution as a mark of sympathy and solidarity with the victim advocate. They further assured the court that no such resolution will be passed in the future and that the association will strive toward upholding the constitutional mandate. The court was satisfied with the explanation and hoped that such an occurrence will not recur anywhere in Tamil Nadu and Puducherry.

Case Title: Ganapathy and others v. State represented by Inspector of Police

Case No: Crl OP(MD) No. 6833 of 2022

Citation: 2022 LiveLaw (Mad) 225

Counsel for Petitioner: Banumathy A

Counsel for Respondent: Mr E Antony Sahaya Prabahar (Additional Public Prosecutor), Mr KS Durai Pandian (for Defacto Complainant)