TaxTMI 
TaxTMI 
2025 (11) TMI 190
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...., Adv., Ms. Adhirai Devi, Adv., Mr. Adhil, Adv. For M/s. Ram Sankar & Co., Mr. Sidharth Luthra, Sr. Adv. Mr. Kumar Vaibhaw, Adv., Mr. Mohd. Ashaab, Adv. Ms. Madhusruthi Neelakantan, Adv. Mr. Mukul Rohatgi, Sr. Adv. Mr. Ranjit Kumar, Sr. Adv. Mr. Mahesh Agarwal, Adv. Mr. Anshuman Srivastava, Adv. Mr. Himanshu Saraswat, Adv. Mr. Chirag Nayak, Adv. Mr. E.C. Agrawala, AOR Mr. M Shoeb Alam, Sr. Adv. Mr. Talha Abdul Rahman, AOR Mr. M Shaz Khan, Adv. Mr. Sudhanshu Tewari, Adv. Mr. Dev Sareen, Adv. Mr. Faizan Ahmed, Adv. Mr. Rafid Akhter, Adv. Mr. Deepak Khosla, Adv. Mr. Pranav Sachdeva, AOR Mr. Abhay Nair, Adv. Mr. P Rohit Ram, Adv. Mr. Sanyam Jain, Adv. Mr. S Prabakaran, Sr. Adv. Mr. Manan Kumar Mishra, Sr. Adv. Mrs. Usha Prabakaran, Adv. Mr. Apurba Kumar Sharma, Sr. Adv. Mr. Maheswaran Prabakaran, Adv. Ms. Anjul Dwivedi, Adv. Mr. M Naveen, Adv. Dr. Ram Sankar, Adv. Mr. Jawahar P, Adv. Mrs. Harini Ram Sankar, Adv. Mr. Ajith Williams, Adv. Ms. Adhirai Devi, Adv. Mr. Adhil, Adv. For M/s. Ram Sankar & Co. Mr. Amit Desai, Sr. Adv. Mr. Shantanu Phanse, Adv. Mr. Prashant Relekar, Adv. Mr. Prastut Mahesh Dalvi, AOR Ms. Vidhi Pankaj Thaker, Adv. Ms. Preet Phanse, Adv. Mr. Sures....
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....specially in the context of the above statement '... being made by a rebel, not a friend of liberty'(sic) Stevens J. in his dissenting opinion in Walter v. Nat. Assn. of Radiation Survivors 473 U.S. 305 (1985) observed that the above text will reveal that "Shakespeare insightfully realized that disposing of lawyers is a step in the direction of a totalitarian form of government." The Background: 2. The above matter arises out of a reference made by a Bench of two learned Judges of this Court in a Special Leave Petition filed against a notice issued against an Advocate under Section 179 of the Bharatiya Nagarik Suraksha Sanhita, 2023 [BNSS]. Pursuant to an agreement relating to a loan and its breach, an FIR was lodged at the Odhav Police Station, Ahmedabad, Gujarat under various provisions of the BNSS read with the provisions of the Gujarat Money-Lenders Act, 2011 and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The accused was arrested, and the petitioner in SLP (Crl.) Diary No. 33845 of 2025, an Advocate, filed a regular bail application for the accused before the learned Sessions Judge at Ahmedabad which was allowed. Subsequently, the ....
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....osecuting agency/police appears to be completely untenable. 5. Before us, various intervention applications were filed by individual Advocates & associations, especially by the Supreme Court Bar Association, the Supreme Court Advocates-On-Record Association and an Organisation of In-house Counsels as also the Bar Council of India. The intervention applications in one voice asserts that the subject notice issued is an unconscionable, outrageous interference with the right to practice, conferred on the Advocates under Article 19(1)(g) and Article 21 of the Constitution of India, coupled with the provisions of the Advocates Act, 1961. Further, any interference with the obligation of non-disclosure of facts and circumstances pertaining to an alleged crime, by an Advocate representing the accused, is against the statutory protection conferred on the client. Serious concerns were also raised on the backdrop of the Enforcement Directorate (ED) having issued summons against two Senior Advocates of this Court. When the Bar rose up in unison against such illegality, the ED withdrew and issued guidelines, specifically referring to the BNSS, mandating that any summons issued under the excep....
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.... of Punjab (2005) 6 SCC 1 that professionals such as lawyers and doctors are included in the category of persons professing some special skills which requires, any allegation of digression from ethical conduct or accusation of negligence, to be examined by a group or committee of persons having the same skills, akin to a peer review of the complained acts or omissions in the discharge of their professional duties. There is need for an independent body of such professionals, who is required to look into the aspect of existence of a liability, before any criminal proceeding is initiated, and arrest is made of the professional. In the context of the subject controversy, before even a summons is issued against a lawyer who has a statutory obligation of non-disclosure of privileged communications, the principle applies squarely. 9. Reference is also made to the guidelines issued in the case of Vishaka v. State of Rajasthan AIR 1997 SC 3011 wherein this Court stepped in under Article 142 to provide comprehensive guidelines for dealing with allegations of sexual harassment in workplaces, the absence of which seriously infringed the fundamental rights of the victim. The violation of fun....
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.... it should be constituted at three levels, at the District, the State and the National level with the involvement respectively of the Principal District Judge, Chief Justice of the State and the Chief Justice of India. Put briefly, after consent is obtained from the superior officer, an application should be made before the concerned Magistrate with a further requirement of the consent being taken of a Committee, both of whom would have to be satisfied prima facie, on the basis of the materials produced by the I.O, on the issuance of such summons to an Advocate appearing for the accused/litigant in a case. It is also urged that the dominant purpose test should be applied on the standard of preponderance of probabilities to look into whether the summons referred to any privileged communication between the client and the Advocate, clearly falling within the teeth of Section 132. The Caveat of the State: 12. On behalf of the State, both the Attorney General and the Solicitor General, very fairly, refused to take an adversarial stance since the issue affects the large body of Advocates in the Country whose voice is the voice of the victim, the accused, the marginalised and the do....
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....is only insofar as the summoning of an Advocate in his professional capacity or for inquiring into the discharge of his professional duties, with respect to a particular person or a specific crime, where the lawyer represents the person or defends the accused in an alleged crime. There cannot be claimed absolute immunity by an Advocate merely by reason of his status of a legal advisor when there is any act or omission under scrutiny which would constitute a cognizable offence as distinguished from legitimate professional conduct. 15. A separate procedure introduced by way of a guideline under Article 142, for Advocates would result in creation of a separate class which would be an artificial and unjustifiable classification, violating the mandate of Article 14. Merely for reason of a person being enrolled as an Advocate, he would not be insulated from ordinary legal process applicable to the other citizens. A professional privilege cannot be abused to obstruct the due process of law. It is vehemently asserted that there is no legislative vacuum to persuade this Court to bring in guidelines for the protection of lawyers based on solitary instances of summoning of lawyers. 16. ....
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....haned, the destitute and even those accused and convicted of crimes. Apt is the observation of Alexis de Tocqueville about the profession of law that, it "... is the only aristocratic element which can be amalgamated without violence with natural elements of democracy...I cannot believe that a republic could subsist at the present time if the influence of lawyers in public business did not increase in proportion to the power of the people" (sic-quoted in M. V. Dabholkar Etc.). 18. The role of lawyers in society and the discharge of their duties in prosecution or in defence, in establishing rights or defending against infringements, cannot at all be discounted. This is the reason why Section 126 in the Evidence Act was introduced and by Section 132, the said privilege, was retained in the BSA, protecting the communications between a lawyer and a client as sacrosanct, ensuring every opportunity as available in the legal firmament to the client the lawyer represents, and ensuring that no prejudice is caused to the accused he represents; a fundamental tenet of criminal jurisprudence. The sublime and profound role carried out by the Advocates in civil society cannot be disputed or....
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....stimate of the general public" (sic). 21. All the above cases dealt with professional misconduct or a digression from the essential role. We cannot but express that the observations made therein, were to provide some material for introspection, to those who deviate from the righteous path of administration of justice. The occasional black sheep who tread the uneven, muddy lanes of deceit, in purported protection of the interest of the client, which though a minority, does, sadly exist in our system. We say 'our system' with emphasis since Judges cannot distance themselves from the fraternity of lawyers, to which they once belonged and to which they owe their present status. The provision providing protection to the privileged communications between the lawyer and the client is not to protect those deviants but to ensure that the vast majority, who are day in and day out, involved in the task of administration of justice are not victimised or bullied into making disclosures of their communications with their clients, merely for reason of having represented a client of questionable conduct or having some ill-repute or disrepute. 22. We cannot but notice, in this context, Rule 1....
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....ead into Section 304-A of the IPC and that, there could be no different standards applied, insofar as negligence is concerned, to doctors and the others clothed with responsibilities; professional, civic or societal. 25. In Jacob Mathew5 the issue considered was of professional negligence resulting in a criminal liability. It was held that negligence is the breach of a duty caused by an act or omission of a professional discharging a professional duty, which would not be attempted or omitted by a reasonable man in the same profession, exercising due diligence expected of an ordinary practitioner. An act of negligence, attracting criminal liability was found to be neglect to use ordinary care or skill which constitute a breach of the essential duty enjoined upon such professional, resulting in a perceivable damage. Drawing a distinction insofar as negligence is concerned; as a tort and as a crime, the contention that jurisprudentially no distinction can be drawn under the civil law and the criminal law was negatived. It was held that the amount of damages incurred in tort, is determinative of the extent of liability, while in criminal law what is determinative of the liability is....
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....munication with his client, would expose him to a charge of professional misconduct under Section 132, which is a protection afforded to a client. We cannot find any parallel with Jacob Mathew5 or any aid by reason only of the Advocates and Doctors being categorised as professionals with special skills. That does not, even according to that decision, confer on the Doctors, merely for reason of the status of a medical professional, any blanket immunity from criminal prosecution, when rashness or negligence is proved beyond reasonable doubt. 28. Vishaka6 was in the nature of a class action focussing attention on the societal abrasion of sexual harassment of women in the workplace. This Court invoked Article 32, considering the prevailing climate in which such instances were not uncommon leading to violation of the rights under Articles 14, 15 and 21 of the Constitution of India as also under Article 19(1)(g). The increasing awareness and emphasis on gender justice and the focussed efforts to guard against such violence, especially on the realisation of the true concept of gender equality, juxtaposed with the right to 'life and liberty' was the imminent concern. The trigger for the....
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....ility fastened on the perpetrator of such harassment. 31. We do not think that the positive judicial activism that was prompted, treating the women in general and working women in particular as a class, to avoid any sought of sexual harassment in the workplaces would, with the same gravity, be applicable in the present case nor is there a judicial vacuum requiring us to step in. Jacob Mathew5 also is not applicable to the instant controversy which does not bring forth any issue of professional negligence. Advocate-Client Privilege: 32. In this context, we extract the relevant provisions under the BSA which is in pari materia with the provisions of the Indian Evidence Act which has held the field for more than a century and a half: 132. Professional Communications (1) No Advocate, shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his service as such Advocate, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional service, or to disclose ....
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....rs. - No one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal adviser, unless he offers himself as a witness, in which case he may be compelled to disclose any such communications as may appear to the Court necessary to be known in order to explain any evidence which he has given, but no others. 33. The illustrations though not exhaustive, is definitely indicative of the instances when the transactions between the client and his lawyer would not come within the privilege of professional communication as has been protected under Section 132. The proviso brings forth the exceptions which are sufficiently explained in the illustrations. There cannot be urged a lacuna or absence of legislation, in protection of the lawyers' obligation of non-disclosure, which is statutorily prescribed. An Advocate cannot be coerced into revealing any information with respect to the client he represents or the cause he is engaged to prosecute or defend, which would be in violation of Section 132. The exceptions are clear and operates only where there is (i) waiver/consent of the client. (ii) furthering of an i....
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.... the terms in which I have stated the proposition, it is manifest that several cases may arise, which, though apparently they are exceptions, yet do in reality come within it. Thus the witness, or the defendant treated as such, and called so to discover, must have learned the matter in question only as a solicitor or counsel, and in no other way : if therefore, he were a party, and especially to a fraud (and the case may be put of his becoming informer after being engaged in a conspiracy), that is, if he were acting for himself, though he might also be employed for another, he would not be protected from disclosing; for in such a case his knowledge would not be acquired solely by his being employed professionally"(sic, pg.621). [underlining by us for emphasis] The above exposition succinctly puts in perspective the privilege as embodied in Section 132 of the BSA and the exceptions thereon. The privilege extends even to an Advocate-Client communication which does not necessarily arise from the engagement in a suit or prosecution; since often, in the present scenario, on legal issues, even without a pending suit or prosecution; individuals, corporates, firms and associati....
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....for confidence and trust" between lawyer and client]). But a client is unable to do so if he is placed in a worse position by providing his attorney with information than he would be by remaining silent [See Michael Jay Hartman, Yes, Martha Stewart Can Even Teach Us About the Constitution: Why Constitutional Considerations Warrant an Extension of the Attorney-Client Privilege in High-Profile Criminal Cases, 10 U. PA. J. CONST. L. 867, 876-77 (2008)]. If called to the stand, the client can assert the privilege against self-incrimination when asked about incriminating facts. If the attorney-client privilege is penetrable, however, and a client communicates with his attorney, the client's statements could be discovered by simply subpoenaing the attorney. The client would thus have "walked into his attorney's office unquestionably shielded with the [Fifth] Amendment's protection, and walked out with something less." [United States v. Judson, 322 F.2d 460, 466 (9th Cir. 1963)]. Before the right to counsel attaches, discovery of these statements removes all teeth from the privilege against self-incrimination. After the right to counsel attaches, it creates a constitutional dilemma [See U....
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....by the Police under the BNSS in pursuance of the investigation of a crime. In resolving this vexed issue, we cannot but repeat that we are not concerned with a professional misconduct when considering the application of non-disclosure of confidential professional communications made by a client. On the contrary only the breach by an Advocate can lead to a charge of professional misconduct, with which we are not perturbed at the moment. We are herewith troubled with a coercion to make disclosure, by the investigating agencies. The contention also is that unless such attempts are thwarted, there would be breach of the privilege, resulting in an allegation of professional misconduct, which disclosure in any event cannot be used against the client, in evidence. 39. A professional misconduct of a medical professional is dealt with by the Medical Council of India, which now has been renamed as the National Medical Commission, a body of medical professionals. In Jacob Mathew, it was held by this Court that when such medical negligence involves criminal liability also, then a professional body should examine whether the negligence alleged, in addition to the tortious liability, can resu....
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....udicatory process. The Right to Legal Representation: 42. Moreover, when we look at the issue of a lawyer being summoned as a witness by the Investigating Officer or the Court, to speak about the transactions with his client, we have to also keep in mind the right of a person to legal representation, which is enshrined in the Constitution itself. The question arose as to whether a party in a suit could summon the counsel of the opposite party as a witness, before the Kerala High Court in N. Yovus v. Immanuel Jose 1995 SCC Online Kerala 48. The suit arising from a failed matrimonial proposal had reached the final stage when a petition was filed by one party seeking permission to cite the Advocate of the respondent as a witness. The Division Bench decision considering the issue, referred specifically to Rule 13 of Chapter 2 of Part VI of the Bar Council of India Rules, which requires an Advocate to decline a brief or not to appear in a case, in which he has reason to believe that he is a witness and if engaged it would be apparent that he is a witness on a material question of fact; who should not continue to appear as an Advocate, if he can retire without jeopardizing his clie....
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....insofar as the procedure to be adopted in summoning a lawyer, which would be in addition to and for all practical purposes may, in effect, be in derogation of the provisions of the BNSS. The power of the police officer to investigate a cognizable offence, as provided under Section 175, even without the order of a Magistrate, cannot be regulated by any guideline issued by us, especially when sufficient guideline is available, under Sections 132 to 134 of the BSA. A police officer issuing summons to an Advocate, under Section 179, would be cautioned by the provisions of Section 132 in not expecting any disclosure of a privileged communication. We are not in a position of absolutely no guideline being available; which prompted this Court under Article 142 to frame guidelines in Vishaka6 or in a situation of absence of expertise in corelating professional negligence with criminal liability, as existed in Jacob Mathew5. We are faced with a state of affairs where there is an absolute overreach in violation of the statutory mandate, which occurs by reason of deliberate design or abject ignorance, to correct which, there are Courts established, especially the Constitutional Courts. 45. ....
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....ng a committee of professionals, we cannot but express our anguish in the investigating agencies summoning Advocates appearing in a case, in furtherance of the investigation of the said case. Though, the Magistrate is conferred with the power to monitor the investigation as has been held in Sakiri Vasu v. State of Uttar Pradesh (2008) 2 SCC 409 reaffirmed in Vinubhai Haribhai Malaviya v. State of Gujarat (2019) SCC 1, it does not extend to interfering with the power conferred on a police officer to summon a witness under Section 179 of BNSS. However, the provisions of Section 528 of the BNSS provides sufficient safeguards to the Advocates against whom a summons is issued under the BNSS. 48. We find the summons issued in the instant case to be illegal and against the provisions of Section 132 insofar as the Advocate has been summoned to know the true details of the facts and circumstances of the case in which he appears for the accused. We are surprised that the High Court, being a Constitutional Court, exercising the jurisdiction under Section 528 of the BNSS refused to interfere with the same. We find the reasons stated; of the Advocate having not responded to the summons and t....
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.... Investigating Officer under Section 179 read with Section 175 of the BNSS; when such summons is directed against an Advocate in a case where he is appearing for a party, is not an absolute or a blanket power to be exercised, without looking at the provisions of Section 132 of the BSA. We cannot deny the power altogether or place fetters on it by framing guidelines, especially when there are limits and exceptions to the privilege conferred on confidential professional communications between a Client and an Advocate. If there is an overreach, the Constitutional Courts could always be approached as has been done in the present case. Borrowing a phrase from the above extract, we cannot but say that the power to summon under Section 175 & 179 is not the power to interfere with the privileged communications between a lawyer and client, as long as the Constitutional Courts sit, in this Country. We know the inaction of a High Court has resulted in the Suo-Motu initiation, which we are sure is not the norm. 53. We have already noticed from Greenough12 that the confidentiality of the professional communications is not confined to transactions with an Advocate engaged in a case but also e....
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....veal any legal advice he had given the client. Finding also that the prayer for production did not fall under any of the exceptions of Section 126 it was all the same held that the protection available under Section 126 does not apply to production of documents. 56. The production of documents was dealt with under Section 166 of the Evidence Act under which a person summoned to produce a document shall, if it is in his possession or power, bring it to court notwithstanding any objection; which objection to its production and the admissibility, being decided by the court. The provision also enables the court to inspect the document unless it refers to matters of State, and take other evidence to enable determination of its admissibility. It was categorically held that in that case the Mukhtar was not at all justified in refusing to produce the document as it was a criminal case in which the procedure was governed by Section 94 of the Cr.P.C., 1973. Section 91 of the Cr.P.C, as it existed then, empowered the court to issue summons to produce a document if it was found necessary and sub-section (3) exempted only documents which were protected under Sections 123 and 124 of the Evide....
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.... intervention application asserting their rights under Section 132 and 134. It is also claimed, based on Rule 49 of Chapter 2 Part VI of the Bar Council of India Rules, 'Standards of Professional Conduct and Etiquette' mandating the restriction in practising for persons in the rolls of the Bar Council who are in a regular employment; that, but for pleading and appearing in Courts they carry on the very same duties as legal advisors. At first blush though the contention seems attractive we cannot but observe that the fact of their regular employment with full salaries takes them away from the definition of an Advocate as defined under the Advocates Act 1961, which has been incorporated in Section 132 of the BSA. 60. Section 126 as was available in the Indian Evidence Act referred to "barrister, attorney, pleader or vakil" as professionals who would be entitled to claim non-disclosure of professional communications, which is a privilege conferred on their client. Section 126 took into account the different categories of professionals who practice law and appear in Courts when the Indian Evidence Act was enacted in the year 1872. With the coming into force of the Advocates Act, 196....
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....tion to Rule 49, who is practicing before Courts or Tribunal for his employer. A three-Judge Bench held positively, permitting a Public Prosecutor and Government Counsel who is on the rolls of the Bar Council, as entitled to practice under the Act, who would also answer the description of an Advocate under Article 233(2) of the Act. 138. The very same question arose in a different context in Satish Kumar Sharma v. Bar Council of H.P. [(2001) 2 SCC 365]. The appellant therein was appointed as Assistant (Legal) by the Himachal Pradesh State Electricity Board, who later enrolled with the State Bar Council at the expense of the Board. After his appointment, the appellant therein continued in the Board as a regular employee, was given promotions with change in designations and was also appearing for the Board in the Courts. The certificate of enrolment issued in the year 1984 was withdrawn by the Bar Council of the State in the year 1996 after due notice and opportunity of hearing. Looking at the nature of the duties of the appellant who was a full-time salaried employee, it was found that his work was not mainly or exclusively to act or plead in Courts and he had to attend to ....
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....ill now appearing on behalf of their employers shall not be allowed to appear as advocates. The State Bar Council should also ensure that those Law Officers who have been allowed to practice on behalf of their employers will cease to practice. It is made clear that those Law Officers who after joining services obtained enrolment by reason of the enabling provision cannot practice even on behalf of their employers. That the Bar Council of India is of the view that if the said Officer is a whole time employee drawing regular salary, he will not be entitled to be enrolled as an advocate. If the terms of employment show that he is not in full time employment he can be enrolled." 141. As of now, an employee cannot get enrolled in the rolls of the State Bar Council without giving up his employment. A law graduate who is enrolled as an Advocate on taking up regular employment as full time salaried employee is obliged to intimate the fact to the Bar Council in which he is enrolled and would then seize to practice as an Advocate so long as he continues such employment. Failure to make such intimation can result in his name being struck off from the Rolls. Reading Sections ....
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....nition of practice, determination of whether it was a casual visit or not would depend upon the facts in a given situation; to regulate which the Bar Council of India or the Union of India would be at liberty to make appropriate rules. 65. We have to also notice the judgment of the European Court of Justice (Grand Chamber) in Akzo Noble Limited v. European Commission European Court Reports 2010 I-08301. That was a case in which the officials of the European Commission tasked with the investigation at the applicant's premises took copies of considerable number of documents, upon which the representatives of the applicant raised the issue of protection of confidentiality of the communication between themselves and their lawyers. A joint examination of the documents was made, two of which were e-mails exchanged between the General Manager of the applicant and the Co-ordinator for Competition Law; the latter though enrolled as an Advocate of the Netherland's Bar, at the material time was a member of the applicant's legal department, employed on a permanent basis. The role of the Co-ordinator was akin to an In-house counsel and the Court found against the privilege claimed on the fol....
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....le, no breach of the principle of equal treatment results from the different treatment of those professionals with respect to legal professional privilege. Even assuming that the consultation of In-house lawyers employed by the undertaking or group were to be covered by the right to obtain legal advice and representation, that would not exclude the application, where In-house lawyers are involved, of certain restrictions and rules relating to the exercise of the profession without that being regarded as adversely affecting the rights of the defence. Finally, the fact that, in the course of an investigation by the Commission, legal professional privilege is limited to exchanges with external lawyers in no way undermines the principle of legal certainty." 66. We are in respectful agreement with the above propositions, which squarely apply insofar as In-house counsel, who are taken away from the definition of an Advocate, practising law independently whether it be in litigation or non-litigious matters, as distinguished from a full-time salaried employment. An In-house counsel though is engaged in the job of advising his employer on questions of law would even the....
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.... of the BNSS; being regulated also by Section 165 of the BSA. 2.2 In a civil case, the production of a document shall be regulated by Section 165 of BSA and Order XVI Rule 7 of the Civil Procedure Code. 2.3 On production of such document, it shall be upon the Court to decide on any objection filed with respect to the order to produce, and the admissibility of the document, after hearing the Advocate and the party whom the Advocate represents. 3. The production of a digital device under Section 94 of the BNSS if directed by an Investigating Officer, the direction shall only be to produce it before the Jurisdictional Court. 3.1 On production of the digital device by the Advocate before the Court; the Court shall issue notice to the party with respect to whom the details are sought to be discovered from the digital device and hear the party and the Advocate on any objection regarding the production of the digital device, discovery from it and the admissibility of that discovered. 3.2 If the objections are overruled by the Court, then the digital device shall be opened only in the presence of the party and the Advocate, who will be enabled d....