Whether Person Facing Sexual Harassment Enquiry Can Be Represented By Lawyer Or Next Friend Before ICC

Petitioner seeks to be represented in the said enquiry proceedings by a person of legal background. In this regard, he is aggrieved by an e-mail communication dated 23rd September 2022 received from ICC wherein his request to engage an advocate was declined on account of an express bar to legal representation under Rule 7(6) of Rules. {Para 5}

18. Nevertheless, in the opinion of the court, once the Petitioner gave up the challenge to the provision, he cannot be permitted to seek an alternate prayer in the nature of relief (iv) above in absence of any enabling provision under the Act or Rules which entitles the Petitioner to be represented, as the bar under Rule 7(6) would certainly apply.

19. If the Court would allow such an interpretation, then this provision would become redundant, and a floodgate of law graduates, who may not be enrolled with the bar councils to become an ‘advocate’ but are still practicing law, would pour in. The purpose of keeping the proceedings fact-based and free expert legal advisory, would be lost. That apart, there is also merit in the observation that this will create a prejudice for the complainant, whose case is also being considered by the internal committee without the aid of the legal practitioner or next friend.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P.(C) 14547/2022

JOHNEY REBERIO Vs  UNION OF INDIA & ORS

CORAM:

HON'BLE MR. JUSTICE SANJEEV NARULA

Date of Decision: 14th October, 2022

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Whether Advocates can do money lending business with their client?

Admittedly, the respondent is a practicing Advocate and he appeared on behalf of the petitioner in S.T.C.No.1293 of 2016 on the file of the learned Judicial Magistrate No.4, Salem and also in S.T.C.No.106 of 2018 on the file of the learned Judicial Magistrate No.1, Salem. While being so, he is barred from having any business transactions or loan transactions with his client viz., the petitioner herein.

8. In this regard, the learned counsel appearing for the petitioner relied upon the judgement reported in (2018) 1 SCC 638 in the case of B.Sunitha Vs. State of Telengana, in which the Hon'ble Supreme Court of India held as follows :-

"12. One of the issues was dealt with by a single Bench Judgment of the Madras High Court in C. Manohar versus B.R. Poornima. R. Banumathi, J (as her Lordship then was) held that no presumption could arise merely by issuance of a cheque that amount stipulated in the cheque was payable towards fee. In absence of independent proof, issuance of cheque could not furnish cause of action under Section 138 of the Act in the context 4 J.S. Vasu versus State of Punjab (1994) 1 SCC 184, para 20 5 (2004) Crl.L.J 443 of an advocate or client. The observations relevant in the context are as follows :

13. The Bombay High Court in Re: KL Gauba6 held that fees conditional on the success of a case and which gives the lawyer 6 AIR 1954 Bom 478 an interest in the subject matter tends to undermine the status of the profession. The same has always been condemned as unworthy of the legal profession. If an advocate has interest in success of litigation, he may tend to depart from ethics.

14. In the matter of G.Senior Advocate of the Supreme Court, this Court held that the claim of an advocate based on a share in the subject matter is a professional misconduct. In VC Rangadurai versus D. Gopalan, it was observed that relation between a lawyer and his client is highly fiduciary in nature. The advocate is in the position of trust.

15. Rule 20 of Part VI, Chapter II, Section II of the Standard of Professional Conduct and Etiquette reads as follows :

“An advocate shall not stipulate for a fee contingent on the results of litigation or agree to share the proceeds thereof.”

16. Thus, mere issuance of cheque by the client may not debar him from contesting the liability. If liability is disputed, the advocate has to independently prove the contract. Claim based on percentage of subject matter in litigation cannot be the basis of a complaint under Section 138 of the Act.

17. In view of the above, the claim of the respondent advocate being against public policy and being an act of professional misconduct, proceedings in the complaint filed by him have to be held to be abuse of the process of law and have to be quashed."

In the above judgment the Hon'ble Supreme Court of India held that the action of the Advocate is against public policy and an act of professional misconduct.

The proceedings under his complaint is felt to be abuse of process of law and have to be quashed. In the case on hand, when there is a specific bar for doing money lending business that too with his own client, the act of the respondent is amount to professional misconduct. Therefore, the entire proceedings initiated as against the petitioner is nothing but clear abuse of process of law and the complaint itself is liable to be quashed.

 Madras High Court

Ilakkia Raja vs T.Umamaheswaran on 29 July, 2020

                                                                          CORAM: MR.JUSTICE G.K.ILANTHIRAIYAN

   

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Whether any party can prosecute Advocate for defamation if he pleads on behalf of a client?

 In regard to the decision of Meredith J. in

AIR 1948 Pat 56 (Z33) It would be wholly improper for

me to canvass the correctness of this single Judge's

decision of another High Court which is not binding

upon me except to the extent that it refers to the decision

of Burn J. in 1935 Mad WN Cr 76 (A). The learned

Judge writes :

"I have been referred to the notes in Ratanlal's Penal

Code for a Madras case, 1935 Mad WN Cr 76 (A)

which, according to the learned commentator, laid down

that where the accused was charged with defamation

because his vakil put a defamatory question to the

complainant and the vakil gave evidence that he did so

on the instruction of his client, the accused, the

instructions of the accused to his vakil were inadmissible

under Section 126, Evidence Act and the accused was

not guilty of defamation committed as it were by proxy

through the mouth of his vakil. Unfortunately, the

decision is not obtainable In the library here. but the

reasoning quoted, seems to me sound."

 A lawyer is an

advocate -- one who speaks for another. Naturally

beyond what his client tells him the lawyer has no

opportunity to test the truth or falsity of the story put

forward by the client. It would therefore be unrighteous

to make the lawyer the whipping-boy for his client.

It is held that a lawyer is an advocate, one who speaks for another.

Naturally beyond what his client tells him the lawyer has no opportunity

to test the truth or falsity of the story put forward by the client. Therefore

no lawyer could ever be prosecuted for defamation in regard to any

instructions which he might have given to his lawyer, because it is the

lawyer's business to decide whether he could properly act upon the

instructions, and whatever responsibility might ensue from acting upon

those instruction would be his, and no one else's, is opposed to the entire

trend of decisions defining the scope and extent of the privilege

conferred upon the lawyer.

24. In light of above-stated legal analysis, an

advocate, who acted professionally as per instructions of

his/her client, cannot be made criminally liable for the

offence of defamation under Section 500 of the IPC unless

contrary is alleged and established.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 30.09.2020

CORAM: MR. JUSTICE G.K.ILANTHIRAIYAN

Crl.O.P.Nos.4669 & 5115 of 2020 

M.L.Ganesh  Vs. CA V.Venkata Siva Kumar

Dated: 30.09.2020

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