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No Criminal Action Against Advocate If Legal Advice Goes Wrong, Liable For Professional Misconduct If Established By Cogent Evidence: Rajasthan HC
ANIRUDH VIJAY
20 Jun 2022 4:30 AM GMT
The Rajasthan High Court has observed that if any legal advice rendered by an Advocate goes wrong, the same would not subject him to criminal prosecution, as a lawyer. At most, he may be held liable for gross negligence or professional misconduct, if it is established by placing cogent evidence on record.Dr. Justice Pushpendra Singh Bhati observed, "If any legal advice rendered by an...
The Rajasthan High Court has observed that if any legal advice rendered by an Advocate goes wrong, the same would not subject him to criminal prosecution, as a lawyer. At most, he may be held liable for gross negligence or professional misconduct, if it is established by placing cogent evidence on record.
Dr. Justice Pushpendra Singh Bhati observed,
"If any legal advice rendered by an Advocate goes wrong, the same would not subject him to criminal prosecution, as a lawyer. As observed above, an Advocate, at the most, may be liable for gross negligence or professional misconduct, if it is established by placing a cogent evidence on record, but an Advocate cannot be charged for the offences, as alleged herein, alongwith other conspirators."
The Bench was of the view that if an Advocate is prosecuted merely for rendering a legal advice/opinion, it shall not be possible for any lawyer to render such professional advice, more particularly, when such a professional advice, if found to be non favourable for the client, the same would result into criminal prosecution against a lawyer, and in such circumstances, the system of justice delivery would suffer, as lawyers being an important component of the justice delivery system would not be able to give their professional advice without fear and favour.
"Advocate, though is bound by his professional conduct, but can only give his advice to the best of his ability and capacity; an Advocate never gives to his client an assurance that his legal opinion/advice would result into a win-win situation for his client, in any circumstances. Once an advice is given by an Advocate, it is the prerogative of the party concerned to adhere to such advice or not. Such professional advice however, cannot attract criminal proceedings, as the professional advice is a very delicate issue between a client and an Advocate, for which the Advocate cannot be held criminally liable."
In the present case, the Petitioner, an Advocate, had challenged an order framing charges against him for allegedly rendering wrong legal advice to his client-Municipality. In relation to land allotment in the municipality, it was alleged that the Petitioner had acquired pecuniary benefits, while adopting corrupt and illegal means, thereby causing the Municipality/State Exchequer a huge loss to the tune of Rs.7,18, 800/-. Accordingly, the trial court had framed the charges under Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act and under Section 120B IPC.
The High Court opined that merely on the basis of a professional advice/opinion, the lawyer's prosecution, as done in the present case, cannot be sustained in the eye of law. The court added that this is more so when the prosecution has failed to prima facie prove that the petitioner-Rani Dan, Advocate was involved into a conspiracy of causing a financial loss to the State Exchequer.
It observed that at the stage of framing of charge, the trial court is only required to prima facie presume whether a case against the accused person(s) may be made out. The court noted that the facts emerging from the case may be taken as face value. If the facts disclose the existence of ingredients constituting the alleged offences, then the charges may be framed, added the court.
The High Court said,
"The word "presuming" in Section 228 Cr.P.C. has been consciously inserted by the legislature, with the intention that if the Court strongly suspects that the accused is in any way connected with the commission of the alleged offences, then it may proceed to frame charges against the accused. The said word must be read ejusdem generis to the opinion that there is a ground for forming an opinion that the accused has committed the alleged offence."
In furtherance, the court also observed that it would also be immaterial whether the said opinion has been formed either on the basis of direct, or circumstantial evidence.
Accordingly, the Petitioner- Advocate was discharged.
Adv. L.D. Khatri and Adv. Dhan Raj Vaishnav appeared for the petitioner while PP N.S. Bhati appeared for the respondent.
Case Title: Gopi Kishan v. State Of Rajasthan, Through Pp with connected matter
Citation: 2022 LiveLaw (Raj) 197Click here to read/ download Judgment
