BCI Rules Do Not Bar Accused Advocate From Representing Co-Accused Son As Counsel: Madhya Pradesh High Court Quashes Cheating Case

The Court clarified that Rule 13 of the Bar Council of India (BCI) Rules—which restricts lawyers from appearing in cases where they are likely to be witnesses—is listed under the category of 'Duty to Client' rather than 'Duty to Court' and cannot be stretched to mean that an accused-lawyer plays a fraud upon the Court by representing his son as a co-accused.

The Division Bench of Chief Justice Sanjeev Sachdeva and Justice Vinay Saraf observed, “Rule 13 of Bar council of India referred to above is under a section “Duty to Client” and not under Section – I “Duty to Court”. Said Rule does not prohibit any co-accused to appear in a case as counsel. We are unable to accept that by appearing on behalf of co-accused in the capacity of counsel, petitioner played a fraud upon the court. One should not lose sight of the fact that the Petitioner is an accused and appeared on behalf of the co-accused. The co-accused is none other than the son of the Petitioner. Further, it is also brought on record that State Bar Council has already dropped the proceedings against the petitioner at the threshold by order dated 26.02.2023 by holding that prima facie no case is made out to proceed further in the matter as the same is not covered under Section 35 of Advocates Act.”

Advocate Anuvad Shrivastava appeared for the Petitioner, while Advocate Sandeep Kumar Shukla appeared for the Respondent.

Facts of the Case

The petitioner, a practicing advocate, was arrayed as a co-accused alongside his son in a criminal case registered for cheating under the Indian Penal Code. The petitioner’s independent petition to quash the First Information Report (FIR) was dismissed by the High Court.

Subsequently, the petitioner appeared as arguing counsel on behalf of his son in a separate quashing petition arising out of the same FIR. The High Court took exception to the petitioner representing a co-accused in the same case while suppressing the fact that his own quashing petition stood dismissed, terming the conduct a fraud on the Court.

Pursuant to the High Court's directions, the Principal Registrar (Judicial) initiated proceedings under Section 340 of the Code of Criminal Procedure (Cr.P.C.) and filed a criminal complaint against the petitioner for cheating. The Trial Court took cognizance and subsequently dismissed the petitioner’s application for discharge, which forms the subject matter of the challenge in the instant criminal revision.

Contentions of the Parties

The Petitioner submitted that he appeared as a legal representative on the strength of a validly executed Vakalatnama and committed no criminal offence. It was argued that while the Bar Council of India rules prohibit an advocate from appearing in a matter where they are a witness, there is no legal bar preventing an advocate from representing a co-accused.

It was contended that the complaint filed by the High Court administration was not maintainable, as the offence of cheating does not fall within the strict statutory ambit of Section 195 read with Section 340 of the Cr.P.C.It was further urged that the essential ingredient of mens rea to constitute fraud was entirely absent, as there was no intentional deception aimed at wrongful gain.

The Respondent countered that the petitioner deliberately suppressed his status as a co-accused and the prior dismissal of his quashing petition, which amounted to playing a fraud upon the Court. It was maintained that a co-accused cannot legally represent another co-accused as a counsel in the same criminal proceedings. It was argued that the deliberate concealment of material facts directly interfered with the administration of justice, thereby rendering the petitioner liable for prosecution and disentitling him to a discharge.

Observations of the Court

The Court observed that the gravamen of the allegations against the petitioner was twofold, centering on the non-disclosure of the dismissal of his earlier quashing petition, and the alleged fraud committed by appearing as a counsel for a co-accused while being an accused himself in the same case. It was noted by the Court that the mere making of a contradictory statement in a judicial proceeding does not by itself justify a prosecution for offences against public justice; rather, it must be established that the false statement or evidence was intentionally given or fabricated.

The Court further observed that to initiate an inquiry under Section 340 of the Code of Criminal Procedure (Cr.P.C.), the court must form a deliberate opinion that such a prosecution is expedient in the interests of justice, keeping in view the overall factual matrix and its probable consequences.

It was held that fraud inherently implies an intentional deception aimed at securing a wrongful gain or causing a wrongful loss or injury to another, and that mens rea remains an essential ingredient to establish that a fraud was played upon the Court.

The Court found the allegation of suppression of facts to be completely misplaced and factually incorrect, noting that the co-accused’s petition was filed well before the petitioner's independent quashing petition was dismissed, meaning there was no occasion for the petitioner to disclose an order of dismissal that did not exist at the time of filing.

Adverting to the Bar Council of India Rules, the Court observed that Rule 13, which prohibits an advocate from accepting a brief where they have reason to believe they will be a witness, falls under the category of 'Duty to Client' rather than 'Duty to Court', and contains no explicit prohibition preventing a co-accused from appearing as a counsel for another co-accused.

It was further remarked that the petitioner was an advocate representing his own son as a co-accused, and that the State Bar Council had already dropped the professional misconduct proceedings against him at the threshold, finding no prima facie case under Section 35 of the Advocates Act.

“In view of the above, we are of the considered opinion that no offence of cheating is made out against the petitioner, who is a practicing advocate and appeared on behalf of a co-accused (his own son) as counsel in a quashing petition. He deserves to be discharged from the aforesaid offence and consequently, the impugned order dated 23.09.2025 passed in RCT No. 9808/2022 by the learned magistrate dismissing the application under Section 227 CrPC is set aside”, the Court said.

The Court concluded that no offence of cheating was made out against the petitioner for merely appearing as a counsel for a co-accused in a quashing petition, and therefore, the petitioner deserved to be discharged, rendering the impugned order of the Trial Court unsustainable.

Cause Title: Suresh Prasad Khare v. The High Court of Madhya Pradesh [Neutral Citation: 2026:MPHC-JBP:40235]

Appearances:

Petitioner: Advocate Anuvad Shrivastava

Respondent: Advocate Sandeep Kumar Shukla

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