Allahabad High Court: Holding An Advocate As Conspirator For Professional Acts Would End The Right To Practice And Threaten The Bar’s Existence
It is definitely most heartening and refreshing to note that while displaying courage, wisdom and pragmatism, the Allahabad High Court which is biggest High Court in not only just India or Asia alone or few continents alone but in all world and all continents with maximum advocates more than four lakh enrolled with it, in a most learned, laudable, landmark, logical and latest judgment titled Samarpan Jain vs State of UP And 2 Others in Criminal Mis c. Writ Petition No. 23443 of 2025 and cited in Neutral Citation No.: 2026:AHC:118653-DB that was pronounced just recently on May 21, 2026, while pulling up the State’s Commercial Tax Department for lodging an FIR against an advocate named Samarpan Jain for an act performed by him in his professional capacity has minced absolutely just no words to hold indubitably, sending a loud and clear message that holding an advocate to be a conspirator with a client in doing a professional act would be the end of his right to practice and the bar’s existence.
This alone explains why the late eminent, senior and biggest legal luminary that I have ever seen or met in my life – the late Hon’ble Mr Ram Jethmalani, Sir, with more than 75 years of distinguished practice in the Supreme Court and also in the Bombay High Court, who started practising at the age of just 17 years and who was also the former Union Law Minister of India and had held the highest offices even in the Supreme Court while teaching at Symbiosis Law College in Pune in my LLB first year in 1996 – underscored this very irrefutable fact, stating explicitly and valiantly that an advocate has to defend his client irrespective of whether he is accused of drug smuggling or terrorism or any other heinous crime, as it is the duty of an advocate to accept the brief of a client and argue forcefully before the court with the knowledge of the case that he has, and in doing so, he is not committing any crime but is simply doing his professional duty, and the accused is deemed to be innocent till he/she is proven guilty before the court!
We thus see that while holding so, a two-judge division bench of the Allahabad High Court comprising the Hon’ble Mr Justice JJ Munir and the Hon'ble Mr Justice Tarun Saxena quashed a criminal proceeding against an advocate who is accused of conspiring with his client in a GST case. By any reckoning, the Division Bench struck the right chord in noting that such an approach would also adversely affect citizens' access to legal representation, as lawyers would be compelled to worry about safeguarding themselves before defending their clients, which definitely cannot be beneficial at all for the evolution and growth of our legal system and judiciary. No denying it!
Key Case Highlights
- Case: Samarpan Jain vs State of UP And 2 Others
- Case Number: Criminal Misdemeanour c. Writ Petition No. 23443 of 2025
- Neutral Citation: 2026:AHC:118653-DB
- Date of Judgment: May 21, 2026
- Court: Allahabad High Court
- Bench: Hon’ble Mr Justice JJ Munir and Hon’ble Mr Justice Tarun Saxena
- Issue: Criminal proceedings initiated against an advocate for acts performed in a professional capacity
Case Information Table
| Particulars | Details |
|---|---|
| Case Title | Samarpan Jain vs State of UP And 2 Others |
| Neutral Citation | 2026:AHC:118653-DB |
| Date of Decision | May 21, 2026 |
| Court | Allahabad High Court |
| Judges | Hon’ble Mr Justice JJ Munir and Hon’ble Mr Justice Tarun Saxena |
| Core Issue | Whether an advocate can be treated as a conspirator for acts done in a professional capacity |
Court Proceedings And Background
Preliminary Observations
At the very outset, this brief, brilliant, bold and balanced judgement authored by a two-judge division bench of the Allahabad High Court comprising Hon’ble Mr Justice JJ Munir and Hon’ble Mr Justice Tarun Saxena sets the ball in motion by first and foremost putting forth in para 1 that "A counter affidavit has been filed by respondent no. 3, to which a rejoinder has been filed and a personal affidavit of the Deputy Commissioner, State Goods and Services Tax Department, Sector-I, Rampur has also been filed.”
As we see, the Division Bench then clarifies in para. 2, stating that “The parties do not propose to file any further affidavits.”
Hearing Of The Matter
Needless to say, the Division Bench then states in para 5 that "Heard Mr Sushil Shukla, learned Senior Advocate, assisted by Mr Sharad Sharma, learned Counsel for the petitioner; Mr Anoop Trivedi, learned Additional Advocate General, assisted by Ms Sadhna Singh, learned Additional Government Advocate, appearing on behalf of respondent no. 3; and Mr Shashi Shekhar Tiwari, learned Additional Government Advocate, appearing on behalf of respondent nos. 1 and 2.”
Challenge To FIR And Cognizance Order
As it turned out, the Division Bench enunciates in para 6 that, “In its amended form, this petition now challenges the First Information Report dated 04.10.2025 giving rise to Case Crime No. 175 of 2025, under Sections 61(2), 318(4), 336(3), 338, 340(2), BNS, Police Station Kotwali, District Rampur, as well as the impugned cognisance order dated 14.05.2026 passed by the learned Additional Chief Judicial Magistrate, Court No. 1, Rampur, and the charge-sheet giving rise to Case Crime No. 3171 of 2026 on the Magistrate’s file.”
Facts Of The Case
Petitioner Background
To put things in perspective, the Division Bench envisages in para. 7 that "The short case of the petitioner is that he is an advocate enrolled with the Bar Council of U.P. since 20.12.2021. He practises and specialises in indirect taxes, direct taxes and corporate laws. He is also an Advocate on Record before this Court, his AOR No. being A/S0088/25.
Mohd Haris is the proprietor of the firm called M/s M H Enterprises, having GSTIN 09AJDPH7962C3Z5 with its registered office at Mohalla Magazine, Bareilly Gate, PS Sadar, District Rampur. He approached the petitioner and engaged him as his advocate to file a statutory appeal under Section 107 of the Goods and Services Tax Act, 2017..."
GST Appeals Filed By The Advocate
Be it noted, the Division Bench notes in para 8 that, “According to the instructions of his client Mohd. Haris, the petitioner filed two online statutory appeals on 15th of August, 2025, before the Appellate Authority-3 in accordance with Section 107 of the GST Act, 2017, uploading the memoranda of appeals and other required documents on the GST Portal in respect of two identical orders dated 18.04.2025 passed by the Deputy Commissioner, GST, Sector-1, Rampur.
It is emphasised that payment of a pre-deposit of 10% of the disputed tax by utilisation of the Input Tax Credit and Electronic Credit Ledger of any assessee is permissible under CBIC-20001/2/2022-GST dated 06.07.2022.
Maintainability Objection
Further, the Division Bench then states in para 9 that "The case further is that after filing of the statutory appeals on 22.09.2025, the petitioner's client was served dasti with an intimation dated 23.09.2025 from the office of the Appellate Authority-3, Moradabad, wherein it was said that the pre-deposit of 10% of the disputed tax from his Electronic Credit Ledger, utilising Input Tax Credit for filing a statutory appeal, cannot be accepted as a statutory pre-deposit for the purpose. He was, therefore, directed to clarify on 24.09.2025 on the question of maintainability of the appeal.”
As things stand, the Division Bench then unfolds in para 10 disclosing that, “It is then said that the petitioner was intimated of the Appellate Authority’s communication on 22.09.2025, late in the night of 23.09.2025, and, as the petitioner was to attend some urgent meeting at Ghaziabad, he expressed his inability to attend the hearing at Moradabad. The petitioner’s client could not arrange an adjournment, and the Appellate Authority dismissed the statutory appeal on the ground of maintainability, with the remark that the pre-deposit of 10% of the disputed tax made by the assessee from his electronic ledger, utilising input tax credit, was not acceptable as a valid tender.”
FIR Lodged Against Advocate And Client
Plainly speaking, it cannot go unnoticed that the Division Bench points out in para 11 that, “After the above appellate order was passed, the informant, that is to say, the Deputy Commissioner of GST, respondent no. 3, instead of proceeding to recover the assessed amount of tax, interest and penalty from the petitioner’s client, lodged the impugned F.I.R. on 04.10.2025, not only against the petitioner’s client but also nominating the petitioner for allegedly making a pre-deposit of 10% of the dispute tax out of the Electronic Credit Ledger by utilising Input Tax Credit, which, according to the informant, was an illegal course adopted by the petitioner’s client in appealing his order. It was also alleged in the F.I.R. that there was evasion of GST, committed by the petitioner’s client in conspiracy with the petitioner, in order to cause financial loss to the state exchequer. It is this part of the F.I.R. which aggrieves the petitioner.”
Key Principles Laid Down By The High Court
| Issue | Court's View |
|---|---|
| Role of an Advocate | An advocate acts professionally on behalf of a client and cannot automatically be treated as a conspirator. |
| Right to Legal Representation | Citizens have a constitutional right to legal assistance. |
| Professional Independence | Lawyers must be free to discharge their duties without fear of prosecution. |
| Constitutional Protection | Articles 14 and 21 protect fair legal representation and professional freedom. |
Cornerstone Of The Judgment
Most significantly, most rationally, most forthrightly, most fundamentally and so also most remarkably, the Division Bench then encapsulates in para 17 what constitutes the cornerstone of this notable judgement, postulating precisely that, “After a careful consideration of the matter, what we find is that the impugned F.I.R., lodged in this case, which has led to the police report and the order of cognisance, violates all known principles of criminal liability. An advocate, by his profession, is authorised to represent his client, who may have a case of any kind to be suited in a court or defended. An advocate, by his profession, is authorised to defend men charged with murders, rape and terror offences, and it is his/her duty to defend them. If, for doing a professional act, like preferring an appeal, an advocate is to be held in conspiracy with his client, it would be the end of the very existence of the Bar and the right of an advocate to practise under the Advocates Act. It would, indirectly also, deprive the citizens of their right to the much-valued right to legal assistance, because a person who practises the profession of law before defending his client would be thinking about his own defence, and this he would be thinking about before he files a vakalatnama and takes steps on behalf of his client. This kind of a situation, which hits at the roots of the principles enshrined under Articles 14 and 21 of the Constitution, cannot be permitted to happen. An advocate has to work fearlessly and discharge his professional duties, just as an officer of the state is entitled to discharge his duties.”
Professional Judgment Not Criminal Conspiracy
Equally significant and what is really worth noting here is that the Division Bench then propounds in para 18 holding that, “Here, even if the Deputy Commissioner of the GST thinks that the predeposit of the disputed tax could not be debited to the Electronic Ledger out of the Input Tax Credit, the professional decision of the learned Advocate to do so does not, in any way, make him a conspirator with the assessee. It is purely a professional act and not at all something to do with his client’s business. It was done in the course of filing an appeal and nothing more. It was based on a particular view of the law, whether right, wrong or utterly wrong.”
Important Takeaways
- Legal advice cannot by itself constitute criminal conspiracy.
- Advocates enjoy professional independence while representing clients.
- A legal interpretation may be right or wrong, but that alone does not create criminal liability.
- The justice system depends upon fearless legal representation.
High Court Quashes FIR, Charge-Sheet And Cognizance
As a corollary, the Division Bench then directs and holds in para. 19 that, “In the circumstances, we are of opinion that the impugned F.I.R., the charge-sheet filed by the police, on its basis and the order of cognisance cannot be sustained. This writ petition succeeds and is allowed. The impugned F.I.R. dated 04.10.2025 giving rise to Case Crime No. 175 of 2025, under Sections 61(2), 318(4), 336(3), 338, 340(2), BNS, Police Station-Kotwali, District-Rampur, Charge-sheet No. 30 of 2026 dated 04.04.2026 filed in Court and the cognisance order dated 14.05.2026, passed by the learned Additional Chief Judicial Magistrate-I, Rampur are all hereby quashed, in so far as it relates to the petitioner.”
Directions For Record Correction
It would be instructive to note that the Division Bench then hastens to add in para 20 noting that, “The learned Chief Judicial Magistrate, Rampur, shall cause an entry to be made in red ink in the General Diary of Police Station Kotwali, District Rampur, that the proceedings of Case Crime No. 175 of 2025, under Sections 61(2), 318(4), 336(3), 338, and 340(2) of B.N.S., have been quashed in so far as it relates to the petitioner, under orders of this Court.”
Final Directions Of The Court
Finally, the Division Bench then concludes by aptly directing and holding in para 21 that "Let this order be communicated to the learned Chief Judicial Magistrate, Rampur, and through him to the Superintendent of Police, Rampur; the Station House Officer, Police Station Kotwali, District Rampur; and the Deputy Commissioner, GST, Sector-I, Rampur, by the Registrar (Compliance).”
Quick Summary
- Allahabad High Court protected the independence of the legal profession.
- An advocate cannot be prosecuted merely for pursuing a legal remedy on behalf of a client.
- Professional legal decisions do not automatically amount to criminal conspiracy.
- The court emphasised the importance of Articles 14 and 21 of the Constitution.
- The FIR, charge sheet and cognisance order against the advocate were quashed.
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A - 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh.
