The Kerala High Court recently comprising of a bench of Justice Shircy V while dismissing the anticipatory bail application filed in a fake lawyer case, remarked that a lawyer owes paramount responsibility to his client first, and to the court second. (Sessy Xavier v. State of Kerala & Ors.)
The bench also observed that the legal profession was one of the noblest professions, "The lawyers' profession is considered to be one of the noblest professions. Lawyers have to play a pivotal role in the administration of justice as only with their sincere and purposeful effort and assistance the Courts could administer justice properly."
Facts of the case.
In the present case the petitioner had practised in the State as an Advocate for over two years without enrollment and had approached the Court with this anticipatory bail application after the incident came into light.
Contention of the Parties
It was submitted by the counsel for the petitioner that as she lost some papers in the examination she did not complete her LL.B course and due to her poor financial circumstances at home, she could not complete her course. Then, she joined as a Law intern in the office of an Advocate at Alappuzha and attended courts regularly at Ramangiri and Alappuzha, but that was without wearing the attire of an Advocate. Later due to the compulsion of certain friends in the Bar Association at Alappuzha, she submitted a nomination to contest the election of the Bar Association for the year 2020-2021.
Though she has not been admitted as a member of the Bar Association, her nomination was accepted and she won the election. In fact, she has not committed any offence as alleged by the prosecution. No offence is attracted so as to have her custody by the police to proceed with the investigation of the case, is the argument advanced on behalf of her.
The learned Public Prosecutor strenuously opposed the application contending that the petitioner who has not even completed her graduation in law, committed cheating by impersonation by producing documents with the enrolment number of an Advocate of Thrivanathapuram and fraudulently obtained membership in the Association and thereafter started the profession of an Advocate as if she was enrolled as an Advocate before the Bar Council of Kerala. She regularly appeared before various courts at Alappuzha for about two and half years till the filing of the complaint against her. She even contested cases before the Sessions Courts as State Brief and obtained orders from various Courts appointing her as Advocate Commissioner and submitted reports before the courts.
According to the prosecution, in short, she has cheated the District Judiciary, Advocates as well as the entire public and therefore the offences alleged against her are no doubt grave and serious in nature and the prosecution has to probe into the details so as to collect the entire materials to proceed with the investigation of the case with her in custody. Hence, granting of pre-arrest bail is vigorously opposed by the learned public prosecutor.
Courts Observation and Judgment
The bench noted that she had not merely deceived the Bar Association or the general public, but the entire Judicial system, "It is well settled that while considering an application for bail the court has to take into consideration the nature and gravity of the accusation levelled against the accused, the larger interest of the public, reasonable apprehension of tampering with the evidence, likelihood of absconding etc. In the instant case, prima facie, the petitioner has not only cheated the Bar Association, Alappuzha, the District judiciary of Alappuzha, the general public, but also the entire Judicial system. As observed above, she is not a law graduate and she never enrolled as an advocate before the Bar Council of Kerala, but clandestinely produced the enrolment number of another Advocate and the said number was exhibited by her as her roll number in all her activities as an Advocate before the courts in Alappuzha District and fraudulently used that number for various purposes as if she had enrolled as an Advocate with the roll number. Doubtless that the gravity of the offences alleged against her is grave and serious in nature."
The Bench noted, "They owe onerous responsibility and duty towards the Courts and they are considered as the officers of the Courts."
However, it was substantiated that their foremost duty lay towards their clients.
"Their first responsibility is towards their clients and then to the courts. So, misrepresenting or presenting as an Advocate before a client and obtaining his/her brief as if she is an Advocate, itself would amount to cheating towards the public."
The Bench while denying pre-arrest bail to Xavier, the bench ruled that the Bar Associations must cross-check and verify with the Bar Council before admitting a new member to prevent similar incidents in the future.
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