NOC By Earlier Counsel With Vakalatnama Only Good Practice & Not Mandatory In Criminal Case: Allahabad High Court

The High Court was considering a second bail application, moved on behalf of the appellant/applicant who had been convicted under Sections 498-A, 304-B I.P.C. & Sections 3, 4 of the Dowry Prohibition Act. She was sentenced to a maximum term of life imprisonment, and her first bail application was rejected.

The Division Bench of Justice Abdhesh Kumar Chaudhary and Justice Rajesh Singh Chauhan held, “ Having noted the submission of the learned counsel Ms. Rajpoot, this Court is of the considered view that the Code of Criminal Procedure (Cr.P.C.) does not contain any section that makes filing a vakalatnama mandatory for filing a bail application, whether it is; Regular bail, Anticipatory Bail, Suspension of sentence/bail after conviction. The Cr.P.C. only requires that the accused be represented by a duly authorized advocate. Moreover, although Cr.P.C. does not mandates, however, the Courts require some form of authorization for an advocate to act on behalf of the accused/convict and the providing of an NOC by the earlier counsel is as a matter of 'good practice' rather than a matter of right, especially in criminal cases, wherein life & liberty of a detenue is an issue and an accused/convict has a fundamental right guaranteed by Article 22(1) of the Constitution of India and reiterated in Sections 303 and 41-D of the Code of Criminal Procedure, to be represented by an Advocate of his/her choice, as has held in the case of 'Subedar vs. State of U.P...”

Advocate Chandra Shekhar Singh Yad represented the Appellant while the Government Advocate represented the Respondent.

Arguments

The Counsel for the petitioner had informed the Court that she had filed an application for taking vakalatnama on record, executed by the appellant/applicant & duly attested by the jail authorities. According to her, the said application and the present application for the second bail were filed, supported by an affidavit filed by a Policy Expert, Access to Justice for the NGO Life and Liberty Foundation, Delhi.

Reasoning

The Bench noted that the appeal in question had been filed by another Advocate, whose name also appeared in the cause list. When the petitioner’s counsel was confronted as to whether she had obtained NOC from the Advocate, she submitted that she had approached counsel who had filed the appeal, but he had refused to give his NOC. On this aspect, the Bench held that providing an NOC by the earlier counsel is a matter of 'good practice' and not a matter of right, especially in criminal cases.

The Bench also stated, “Further, there is another aspect of the matter, no doubt, the right to seek bail is a personal liberty right of the accused/convict under Article 21 of the Indian Constitution, however, a third party, including an NGO, cannot generally intervene in a criminal case without the explicit consent and authorization of the person concerned, as this would violate the principles of agency and representation in law.”

“In the considered view of this Court, an NGO can only facilitate in filing of a bail application through a panel Advocate on behalf of an accused person, especially, if the individual is poor or otherwise eligible for legal aid, which is also commensurate to the constitutional scheme of providing legal aid under Article 21 & 39-A of our Constitution and very much imbibed in Section 304 of the Cr.P.C.”, it added.

The Bench further noticed that the 'vakalatnama' had been filed by the petitioner’s Counsel, which had been duly executed by the appellant/applicant and also duly verified by the jail authorities. “The said vakalatnama duly authorized Ms. Jyoti Rajpoot to represent the appellant/applicant in this case. Therefore, this Court does not find any plausible reason or any law on the subject as to why the present application for second bail be not heard on merits in its present form”, it held.

The Bench took note of the fact that the appellant/applicant is a lady and has been in jail for about 13 years, including the period of remission. It was further noticed that there was no eye witness account or last seen evidence, as well as no direct evidence. The present appellant, according to the Bench, had been convicted, as the presumption was drawn against her under Section 113-B of the Indian Evidence Act, because she could not explain the reason for the death of the deceased, who died under mysterious circumstances in her matrimonial home. The Bench also considered the undertaking of the counsel for the appellant/applicant that she would argue the appeal on merits as and when it is next listed.

Thus, allowing the application, the Bench ordered the appellant/applicant to be released on bail on her furnishing a personal bond to the satisfaction of the Court concerned, subject to certain conditions.

Cause Title: Smt. Manorama Shukla v. State of U.P. (Case No.:Criminal Appeal No.1283 of 2021)

Appearance

Appellant: Advocates Chandra Shekhar Singh Yad, Jyoti Rajpoot

Respondent: Government Advocate

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