Professional advice given by an Advocate cannot attract criminal proceedings: Rajasthan High Court

The High Court of Rajasthan, through learned judge, Justice Pushpendra Singh Bhati in the case of Gopi Krishnan v State of Rajasthan (S.B. Criminal Revision Petition No. 95/2019) observed that professional advice given by an Advocate cannot attract criminal proceedings

BRIEF FACTS: Petitions under Section 397 read with Section 401 Cr.P.C. was filed by the petitioners against the order passed by the learned Special Judge, (Prevention of Corruption Act), Jodhpur, whereby the learned court below had  framed the charges against the accused-petitioners for the offences under Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act and under Section 120B IPC. Brief facts of this case was that certain Councillors of Municipality, Jaisalmer submitted a complaint before the office of the concerned Anti Corruption Bureau, which was registered as a complaint. Upon the investigation of the complainant, it was found that one Laxmi Narayan Sharma, the then Lower Division Clerk, Municipality, Jaisalmer, in the year 1985, being an employee of the said Municipality, had got allotted a plot of land in a colony on subsidised rates. However since the said plot was falling in a pit, therefore, he made another application before the Municipality for exchange of the said plot with another plot of land in the same colony; whereupon his brother Jeevan Lal drawn the comments that the plot of land can be exchanged, whereas as per the relevant rules, Jeevan Lal was supposed to make comments otherwise than the one as made. The present accused-petitioner Advocate Rani Dan, who was the Legal Advisor also alleged to have not given the correct legal opinion in the matter, and also, the present accused-petitioner, Gopi Kishan, the then Chairman, on the basis of such incorrect legal opinion had issued the patta in question, allegedly contrary to the rules.

FINDINGS OF THE COURT: In the case of petitioner-Gopi Kishan, the Court observed that at the stage of framing of charge, the learned trial court was not required to conduct a meticulous appreciation of evidence or a roving inquiry into the same, as was laid down by the Hon’ble Apex Court in the judgments rendered in Ashish Chadha v. Asha Kumari and Ors (2012) 1 SCC 680 and State of NCT of Delhi and Ors. vs. Shiv Charan Bansal and Ors. (2020) 2 SCC 290. In the case of the petitioner-Rani Dan, the court observed that an Advocate, though bound by his professional conduct, 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 in a win-win situation for his client, in any circumstances. Once 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. Thus, if any legal advice rendered by an Advocate goes wrong, the same would not subject him to criminal prosecution, as a lawyer


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