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2010 DIGILAW 349 (AP)

BURRA RAJAIAH v. STATE

2010-04-27

SAMUDRALA GOVINDARAJULU

body2010
( 1 ) CRIMINAL Petition No. 3529 of 2010 is filed by the accused Nos. 1 to 4 and Criminal Petition No. 3557 of 2010 is filed by the accused Nos. 2 to 4 under sec. 482 Cr. P. C. , for direction to the special Sessions Judge under the Scheduled castes and Scheduled Tribes (Prevention of atrocities) Act (in short, the Act), Warangal to accept memorandum of appearance filed by Advocate of choice of the petitioner to appear on their behalf to defend their case in Sessions Case No. 15 of 2007 on its file. ( 2 ) THE petitioners are accused of offences punishable under Sections 342, 323, 427, 506, 34 IPC and Section 3 (i) (x) of the Act. ( 3 ) ORIGINALLY, the petitioners engaged one Advocate by name G. Sanjeeva Reddy who filed memo of appearance on their behalf in the lower Court. Now the petitioners want to engage another Advocate by name N. Sekhara Rao. The petitioners filed memo of appearance of that Advocate in the lower Court and it was returned by the lower Court stating that 'no objection' of the previous Advocate should be obtained thereon. As against the said return endorsement on memo of appearance, the petitioners approached this Court with these petitions. The petitioners' present Counsel should have represented memo of appearance by endorsing resubmissions after return endorsement of the lower Court, stating that as per their contentions on law and on facts no such 'no objection' endorsement of the previous Counsel is necessary. Instead, they rushed to this Court with these petitions questioning return endorsement of the lower court and without impleading their previous advocate as party to these petitions. It is contended by the petitioners' Counsel that presence of the petitioners' previous Counsel is not necessary for the purpose of these petitions as he ceased to be the petitioners' advocate. But, at any rate, these Criminal petitions are not maintainable against mere ministerial Return Endorsement of the lower court and in the absence of any Judicial order passed by the lower Court. ( 4 ) THE petitioners' Counsel placed reliance on R. D. Saxena v. Balram Prasad sharma, 2000 (5) ALD 86 (SC) = (2000) 7 scc 274, of the Supreme Court on this subject. ( 4 ) THE petitioners' Counsel placed reliance on R. D. Saxena v. Balram Prasad sharma, 2000 (5) ALD 86 (SC) = (2000) 7 scc 274, of the Supreme Court on this subject. The following observations of the supreme Court are to be essentially noticed by all the Legal Professionals in order that they may not land in professional misconduct: " (16) A litigant must have the freedom to change his Advocate when he feels that the advocate engaged by him is not capable of espousing his cause efficiently or that his conduct is prejudicial to the interest involved in the lis, or for any other reason. For whatever reason, if a client does not want to continue the engagement of a particular advocate it would be a professional requirement consistent with the dignity of the profession that he should return the brief to the client, it is time to hold that such obligation is not only a legal duty but a moral imperative. " (17) IN civil cases, the appointment of an advocate by a party would be deemed to be in force until it is determined with the leave of the Court, (vide Order 3, Rule 4 (1)of the Code of Civil Procedure ). In criminal cases, every person accused of an offence has the right to consult and be defended by a legal practitioner of his choice which is now made a fundamental right under Article 22 (1)of the Constitution. The said right is absolute in itself and it does not depend on other laws. In this context reference can be made to the decision of this Court in State of Madhya Pradesh v. Shobharam and others" the words "of his choice" in Article 22 (1)indicate that the right of the accused to change an Advocate whom he once engaged in the same case cannot be whittled down by that advocate by withholding the case bundle on the premise that he has to get the fees for the services already rendered to the client. " (18) IF a party terminates the engagement of an Advocate before the culmination of the proceedings that party must have the entire file with him to engage another Advocate. " (18) IF a party terminates the engagement of an Advocate before the culmination of the proceedings that party must have the entire file with him to engage another Advocate. But if the Advocate who is changed midway adopts the stand that he would not return the file until the fees claimed by him is paid, the situation perhaps may turn to dangerous proportion there may be cases when a party has no resource to pay the huge amount claimed by the Advocate as his remuneration. A party in a litigation may have a version that he has already paid the legitimate fee to the Advocate. At any rate if the litigation is pending the party has the right to get the papers from the Advocate whom he has changed so that the new Counsel can be briefed by him effectively. In either case it is impermissible for the erstwhile Counsel to retain the case bundle on the premise that fees is yet to be paid. " (19) EVEN if there is no lien on the litigation papers of his client an Advocate is not without remedies to realise the fee" which he is legitimately entitled to. But if he has a duty to return the files to his client on being discharged the litigant too has a right to have the files returned to him, more so when the remaining part of the lis has to be fought in the Court. This right of the litigant is to be read as the corresponding counterpart of the professional duty of the Advocate. " (24) WE, therefore, hold that the refusal to return the files to the client when he demanded the same amounted to misconduct under Section 35 of the Act. Hence, the appellant in the present case is liable to punishment for, such misconduct". ( 5 ) LITIGATION in the above reported decision was one between an Advocate and his client. In the present case on hand, the advocate is not as a party either in the lower Court or before this Court in these petitions. The petitioners did not take any steps against their previous Advocate before the Bar Council of the State for committing professional misconduct. Instead, they rushed to this Court. ( 6 ) THE petitioners' Counsel placed reliance on Section 303 Cr. The petitioners did not take any steps against their previous Advocate before the Bar Council of the State for committing professional misconduct. Instead, they rushed to this Court. ( 6 ) THE petitioners' Counsel placed reliance on Section 303 Cr. P. C which reads as follows: "right of person against whom proceedings are instituted to be defended:-Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code, may or right be defended by a pleader of his choice. " ( 7 ) UNDER Sec. 303 Cr. P. C, the accused is entitled to engage "a pleader" of his choice and not one after the other. No doubt, as per R. D. Saxena's case (supra), the previous Advocate cannot claim lien on the brief on any ground whatsoever. It is contended by the petitioners' Counsel that the previous Advocate is refusing to endorse no objection on fresh memo of appearance filed by the petitioners in the lower Court for his own reasons. But, the petitioners are not interested to proceed against their previous Advocate. It is not the petitioners' case that their previous Advocate is refusing to conduct defence of the petitioners. The petitioners did not file any petition in the lower court for revoking memo of appearance of their previous Advocate. In case previous memo of appearance is not revoked or cancelled, then anomalous situation arises if both the previous Advocate and the new advocate stand up for conducting of defence on behalf of the petitioners when the case is taken up for trial in the lower Court. ( 8 ) NO doubt, as laid down in Chagali sahu v. State of Orissa, 1989 Cri. LJ 1172, of the Orissa High Court and porumamilla Ramakrishna v/s. State, 2002 (1) ALD (Crl.) 237 (AP) = 2002 (1) ALT (Crl.) 210 (AP), of this Court, Criminal cases and Criminal Appeals cannot be decided without the accused being represented by a defence Counsel. In case, the defence Counsel who already filed memo of appearance for the accused for any reasons refused to conduct the matter before the Court, then the Court is obliged to give at least provide services of State brief or Amicus curiae for the accused so that the accused can be effectively defended. In case, the defence Counsel who already filed memo of appearance for the accused for any reasons refused to conduct the matter before the Court, then the Court is obliged to give at least provide services of State brief or Amicus curiae for the accused so that the accused can be effectively defended. In the light of the above legal position, it is for the petitioners to approach the lower court by representing memo of appearance now filed on their behalf and to pursue the same before the lower Court. ( 9 ) IN the result, both the petitions are dismissed. But, however, it is open to the petitioners to represent fresh memo of appearances which were returned by the lower Court with their legal submissions, in which event, the lower Court will pass a judicial Order in the presence of all the parties concerned and in the light of legal position on this subject. Petitions are dismissed