[Cites 8, Cited by 0]
Bombay High Court
Sunil Shamsundar Hedda vs The State Of Mah And Ors on 22 January, 2026
2026:BHC-AUG:2612
CRI**-WP-178-2012.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 178 OF 2012
Sunil s/o Shamsundar Hedda
Age: 32 years, Occu: Advocate & Agril.,
R/o. Samarth Nagar, Osmanabad
Tq. & Dist. Osmanabad ... PETITIONER
VERSUS
1. The State of Maharashtra
Through Police Station,
Tuljapur, Dist. Osmanabad
2. Anil s/o Panditrao Deshmukh
Age: 41 years, Occu: Agril.,
R/o Jaiphal, Tq. Kallam,
at present R/o Samtanagar,
Osmanabad Dist. Osmanabad
3. Naresh Nanakchand Agrawal ] R-3 deleted as per
Age: 45 years, Occu: Business, ] order dated
R/o Hadapsar, Pune-3 ] 18.01.2013
4. Timma s/o Somanna Wadar ] R- 4 and 5 abated
Age: 32 years, Occu: Agril., ] as per order dated
R/o. Katgaon, Tq. Tuljapur, ] 18.01.2013
Dist. Osmanabad ]
]
5. Ambubai w/o Shankar Dangar ]
Age: 60 years, Occu: Household, ]
R/o Katgaon, Tq. Tuljapur, ]
Dist. Osmanabad ]
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6. Yusuf s/o Farid Mulani
Age: 45 years, Occu: Agril.,
R/o Katgaon, Tq. Tuljapur,
Dist. Osmanabad
7. Shidheshwar s/o Shankar Konale
Age: 38 years, Occu: Agril.,
R/o Katgaon, Tq. Tuljapur,
Dist. Osmanabad
8. Janardhan Dattatraya Kulkarni
Age: 45 years, Occu: Service as
Talathi, Talathi Sajja, Katgaon,
Tq. Tuljapur, Dist. Osmanabad
9. M. M. Ghatekar
Age: 50 years, Occu: Service,
Sub-Registrar, Tuljapur,
Tq. Tuljapur, Dist. Osmanabad
10. Balaji s/o Somnath Idagote (Wadar)
Age: 26 years, Occu: Agril.,
R/o Katgaon, Tq. Tuljapur,
Dist. Osmanabad ... RESPONDENTS
....
Mr. Mahendra B. Kolpe, Advocate for the Petitioner
Mr. V. M. Chate, APP for Respondent No.1 - State
Mr. Manish P. Tripathi, Advocate for Respondent Nos. 6, 7 and 10
....
CORAM : Y. G. KHOBRAGADE, J.
RESERVED ON : January 17, 2026
PRONOUNCED ON : January 22, 2026
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JUDGMENT :
-
1. Rule. Rule made returnable forthwith. With consent of
both the sides, the petition is taken up for final hearing.
2. At the outset, it is submitted that as per the service report,
respondent No.2 i.e. the original complainant is reported dead. The
learned counsel for the petitioner submits that, the petitioner do not
want to bring the legal heirs of deceased respondent No.2 on record
because the respondent No.2 filed criminal complaint bearing R.C.C.
No. 331 of 2008 in the representative capacity and as such, the
petitioner has challenged the order dated 23.01.2022 passed by the
learned Additional Sessions Judge in Criminal Revision Application
Nos. 139 of 2009 and 140 of 2009, arising out of the order dated
30.11.2009 passed below Exh.12 and order below Exh.1 in R.C.C.
No.331 of 2008. Since the petitioner does not want to bring the legal
heirs of deceased respondent No.2 on record, therefore the petition as
against respondent No.2 is abated. Accordingly, the petitioner
proceeded against the remaining respondents.
3. It is further submitted that during pendency of the
present petition, respondent Nos.3, 4 and 5 who are the original
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accused Nos. 1, 2 and 3, respectively, i.e. Respondent No.3 Naresh
Nanakchand Agrawal, respondent No.4 Timma Somanna Wadar and
respondent No.5 Ambubai w/o Shankar Dangar, reported to be died.
Therefore, their names are deleted from the array of the respondents.
4. The facts rise to the present petition are that, Respondent
No.2 original plaintiff filed R.C.C. No.331 of 2008, for the offence
under Sections 420, 467, 468, 471, 166 read with Section 34 of I.P.C.
alleging that the agricultural land bearing Gat No.472 of village
Katgaon, Taluka Tuljapur, District Osmanabad, purchased by
respondent No.3 by creating false documents and without obtaining
permission from the learned District Collector, Osmanabad as said
land is pertaining to restricted ownership under the provisions of the
Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961. On
14.01.2009, the learned Judicial Magistrate, First Class, Tuljapur,
passed an order below Exh.1 and directed the complainant to
examine witnesses before taking the cognizance, however, respondent
No.2 / original complainant filed pursis Exh.9 on 12.02.2009 stating
that he do not want to lead the evidence. Thereafter, on 12.02.2009,
the learned J.M.F.C., Tuljapur, passed the order below Exh.1 in R.C.C.
No.331 of 2008 and called inquiry under Section 202 of Cr.P.C. On
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12.02.2009, the learned J.M.F.C., passed the order under Section 202
of Cr.P.C. and directed the Police Inspector, Tuljapur Police Station, to
conduct inquiry.
5. On 17.07.2009, the Investigating Officer, submitted its
report u/s 202 of Cri. P. C. stating that, as per the police report, two
more accused i.e. present petitioner Sunil Shamsundar Hedda and
one Balaji Somnath Idagote are involved while making false and
fabricated entries in the land record and on the basis of said entries,
the accused No.1 with connivance with the Revenue Officer accused
No.5 Shri Sidheshwar Shankar Konale, the land in question sold
under the sale-deed without obtaining permission of the learned
District Collector, Osmanabad. Further said transaction of sale was
done on the legal advise given by the present petitioner/accused who
is legal practitioner. Therefore, respondent No.2/original complainant
submitted an application Exh.12 seeking impleadment of the present
petitioner and another Balaji Somnath Idagote as accused in said
complaint. On 30.11.2009, the learned trial Court passed an order
below Exh.12 and permitted to implead two additional accused
including the petitioner.
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6. The petitioner filed Criminal Revision Application No.139
of 2009 challenging order of issuance of process dated 30.11.2009
passed by the learned JMFC, Tuljapur below Exh. 1 in RCC 331 of
2008 for the offence punishable under Sections 420, 467, 468, 471,
166 read with Section 34 of I.P.C.. Whereas, the petitioner filed
Criminal Revision Application No.140 of 2009, challenging the order
dated 30.11.2009 passed below Exh.12 permitting for impleading as
an accused under Section 319 of Cr.P.C.
7. On 23.01.2012, the learned Revisional Court, passed
impugned separate Judgments and orders in Criminal Revision
Application No. 139 of 2009 and 140 of 2009 and dismissed both the
revisions.
8. The learned counsel for the petitioner canvassed that the
petitioner is a legal practitioner at Osmanabad and being a legal
practitioner, the petitioner orally advised his client i.e. original
accused Nos.1 to 3 and on the basis of said advise the original
accused Nos.1 to 3 allegedly acted. However, the petitioner is not
involved while tampering any revenue entries. So also, the report
dated 17.07.2009 submitted by the Inquiry Officer, does not reveal
that the petitioner accused is directly or indirectly involved while
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making entries in the revenue record i.e. 7/12 extract of Gat No.472
of mouje Kataon. The Report u/s 202 of Cri. P. C. submitted by the
Investigating Officer disclosed that, the present petitioner accused
gave legal advise to his client i.e. accused No.1 Naresh Nanakchand
Agrawal, who in connivance with the accused No.6 Janardhan
Dattatraya Kulkarni, the Talathi alledglly prepared false 7/12 extract
of the said land. Further, other duplicate person was shown as true
owner of the land and executed the sale-deed. Therefore, merely the
petitioner / accused allegedly given legal advise, it does not constitute
offence punishable under Sections 420, 467, 468, 471, 166 read with
Section 34 of I.P.C. Therefore, prayed for quashing and setting aside
of the complaint as against the present petitioner as well as the
impugned orders dated 23.01.2012 passed in Criminal Revision
Application Nos.139 of 2009 and 140 of 2009.
9. In support of these submissions, the learned counsel for
the petitioner placed reliance on the case of Suo Motu Writ Petition
(Criminal) No.2 of 2005 in Re: Summoning Advocates who give legal
opinion or represent parties during investigation of cases and related
issues, wherein, the following questions were in consideration before
the Hon'ble Supreme Court, which reads as under:-
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"(i) When an individual has the association with a case only
as a lawyer advising the party, could the Investigating Agency /
Prosecuting Agency / Police directly summon the lawyer for
questioning?
(ii) Assuming that the Investigating Agency / Prosecuting
Agency / Police has a case that the role of the individual is not
merely as a lawyer but something more, even then should they
be directly permitted to summon or should judicial oversight be
prescribed for those exceptional criterion of cases?"
10. In answer to these issues, the Hon'ble Supreme Court
held in para Nos. 38 to 42 and 48 to 50, as under:-
"38. The question that arises is whether, "the professional
brethren of good repute and competency" have to be associated
in a summons issued to a lawyer by the Police under the BNSS
in pursuance of the investigation of a crime. In resolving this
vexed issue, we cannot but repeat that we are not concerned
with a professional misconduct when considering the
application of non-disclosure of confidential professional
communications made by a client. On the contrary only the
breach by an Advocate can lead to a charge of professional
misconduct, with which we are not perturbed at the moment.
We are herewith troubled with a coercion to make disclosure,
by the investigating agencies. The contention also is that unless
such attempts are thwarted, there would be breach of the
privilege, resulting in an allegation of professional misconduct,
which disclosure in any event cannot be used against the client,
in evidence.
39. A professional misconduct of a medical professional is
dealt with by the Medical Council of India, which now has been
renamed as the National Medical Commission, a body of
medical professionals. In Jacob Mathew5, it was held by this
Court that when such medical negligence involves criminal
liability also, then a professional body should examine whether
the negligence alleged, in addition to the tortious liability, can
result in a criminal liability, leading to initiation of a criminal
investigation or prosecution. Likewise, a professional
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misconduct of an Advocate is examined by a professional body,
which is the Bar Council of India or the Bar Council of the
States, regulated by a statutory procedure and providing
hierarchy of authorities.
40. Not being disturbed with any aspect of professional
misconduct resulting in criminal liability, we have to tackle the
attempt of coercion on an Advocate to disclose the privileged
communications he had with his client, which could jeopardise
his client's interests, especially, without the consent of the
client, which could in fact, lead to an allegation of professional
misconduct. As we noticed from Section 132, the obligation of
non-disclosure would not fetter the Advocate from disclosing
any communication made in furtherance of any illegal purpose
or any fact coming to the notice of the Advocate, in the course
of his engagement, revealing a crime or fraud committed by his
client after the commencement of the engagement. The
exceptions are also very clear insofar as what would fall under
the immunity of a privileged communication and what would
fall outside it; delineated in the illustrations.
41. An Investigating Officer or an investigating agency is not
oblivious of the law. The dichotomy insofar as a medical
negligence resulting in criminal liability does not, as such arise
in the case of an investigation carried on under the BNSS,
which is carried on by a person informed in law and the
provisions of the BSA. Ignorance or absence of domain
knowledge does not squarely apply in a case where the I.O
summons a lawyer, the powers of which are clearly fettered by
the provisions of Section 132. Though distinct, it would also be
an extension of the client's constitutional right against self-
incrimination as found in Article 20(3) of the Constitution of
India. When a person cannot incriminate himself, he cannot be
prejudiced or incriminated by the statement of his counsel, only
on the basis of the professional communications he had with
his counsel, in confidence. This is why it has been said that a
person cannot walk out of his counsel's office with a defaced
privilege, which he had intact, when he walked into it. That too
only by reason of the disclosures he made in his own interests,
his defence and to further his chances in the adjudicatory
process.
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The Right to Legal Representation:
42. Moreover, when we look at the issue of a lawyer being
summoned as a witness by the Investigating Officer or the
Court, to speak about the transactions with his client, we have
to also keep in mind the right of a person to legal
representation, which is enshrined in the Constitution itself.
The question arose as to whether a party in a suit could
summon the counsel of the opposite party as a witness, before
the Kerala High Court in N. Yovus v. Immanuel Jose17. The suit
arising from a failed matrimonial proposal had reached the
final stage when a petition was filed by one party seeking
permission to cite the Advocate of the respondent as a witness.
The Division Bench decision considering the issue, referred
specifically to Rule 13 of Chapter 2 of Part VI of the Bar Council
of India Rules, which requires an Advocate to decline a brief or
not to appear in a case, in which he has reason to believe that
he is a witness and if engaged it would be apparent that he is a
witness on a material question of fact; who should not continue
to appear as an Advocate, if he can retire without jeopardizing
his clients interest. It was held that only if the Court after
enquiry finds that examination of the Advocate as a witness is
indispensable and the same would not jeopardise the interests
of the party he represents, there could be summons issued
which would result in disengagement of the Advocate. In that
particular case, it was found that the summons was to prove a
letter sent by the plaintiffs to the Advocate after the
commencement of the proceedings and a compromise
suggested by the Advocate. The summons was declined on the
reasoning that even if something could be elicited from the
exceptions contained in Section 126, it would be of little use in
the case and the hardship caused to the client by depriving him
of professional service of the counsel engaged by him would be
far more.
48. We find the summons issued in the instant case to be
illegal and against the provisions of Section 132 insofar as the
Advocate has been summoned to know the true details of the
facts and circumstances of the case in which he appears for the
accused. We are surprised that the High Court, being a
Constitutional Court, exercising the jurisdiction under Section
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528 of the BNSS refused to interfere with the same. We find the
reasons stated; of the Advocate having not responded to the
summons and the investigation being stalled, to dismiss the
petition, to be flawed & erroneous. It is also in abdication of the
inherent powers conferred on the High Court, which the blatant
breach of the rule against non-disclosure projects. The breach is
not only of the evidentiary rule, which many jurisdictions
accept as fundamental to the adversary adjudicatory scheme,
but, in the Indian context, project infringement of fundamental
rights; guaranteed against self-incrimination and effective
representation of Counsel.
49. On a conspectus of the issues raised, as deliberated upon,
we answer the first of the two questions referred to us by a Co-
ordinate Bench of this Court, with an emphatic 'NO'. The
investigating agency/prosecuting agency/the police cannot
directly summon a lawyer appearing in a case to elicit the
details of the case, unless there is something, the I.O has
knowledge of, which falls under the exceptions, in which case it
has to be specifically mentioned in the summons, which the
lawyer summoned can challenge under Section 528 of the
BNSS.
50. We also make it clear that any such summons issued as
against a lawyer by an I.O has to be with the approval and
satisfaction of the hierarchical Superior, not below the rank of a
Superintendent of Police which satisfaction has to be recorded
in writing and should mention the facts leading to the
exception under Section 132, for which the summons is issued. "
11. The learned counsel for the petitioner further relied on
the case of Central Bureau of Investigation, Hyderabad Vs. K.
Narayana Rao, (2012) 9 SCC 512, wherein, the legal practitioner /
advocate was sought to be impleaded in the crime of conspiracy on
the basis of legal advise given by him i.e. alleged false opinion about
ownership of the properties against which loans were obtained.
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Under these circumstances, the Hon'ble Supreme Court held that, the
liability of an advocate who gave legal opinion, would arise only
when such an advocate could be shown to have been an active
participant in a plan or conspiracy to defraud the bank.
12. Needless to say that, the petition as against the present
respondent Nos. 3 to 5 i.e. original accused who are the main
conspirators and they are died,hence, their names are already deleted
from the array of party respondents. Similarly, the petitioner No.2
who is original complainant died, hence, the petition against him is
abated. The other respondents have not contested the present
petition.
13. It is not in dispute that respondent No.2 filed Criminal
R.C.C. No.331 of 2008 alleging about making conspiracy and
defrauding the government by tampering revenue record pertaining
to get Gut No.472 admeasuring 1 H 69 R of village Katgaon, taluka
Tuljapur, District Osmanabad and on the basis of said tampered
revenue record, the respondents / original accused Nos. 1 to 3 in
connivance with accused No.6 Revenue Officer executed sale-deed
and mutated their names without obtaining prior permission from the
District Collector though said land is prohibited under the provisions
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of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act and
the M.L.R. Code.
14. Needless to say that, in pursuance of the order dated
12.02.2009, passed by the trial Court in R.C.C. No.331 of 2008, the
Investigating Officer submitted its report under Section 202 of Cr.P.C.,
wherein it is specifically stated that, the land bearing Gat No.472 of
village Katgaon is prohibited and was allotted to one Timma
Somanna wadar and respondent No.5 / accused No.3 Ambubai w/o
Shankar Dangar. However, the original accused No.1, on the legal
advise of the present petitioner accused, prepared bogus and false
7/12 extract of the said land and executed sale-deed, so also, in place
of original land owner accused No.2 Timma Somanna Wadar, some
another person Balaji Somnath Idagote, was stood as original owner
and executed the sale-deed.
15. The inquiry report u/s 202 of Cri. P. C., does not disclose
that the present petitioner / accused who is legal practitioner was
directly involved while preparing false 7/12 extract of the said land
revenue record i.e. 7/12 extract of land Gat No.472. The inquiry
report also not disclosed that any written lelgal advice was issued by
the present petitioner to his client i.e. accused No.1 to prepare false
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and bogus 7/12 extract of the said land. The allegations made in the
complaint as well as the inquiry report dated 17.07.2009 does not
appear that the present petitioner / accused added the original
conspirator to prepare false 7/12 extract of Gat No.472 of village
Katgaon. There is no evidence that the present petitioner/accused
was also present personally while preparing the bogus and false 7/12
extract of the said land or he was present at the time of execution of
the alleged sale-deed. Therefore, considering the law laid down by
the Hon'ble Supreme Court, in the judgment reported in 2025 SCC
OnLine SC 2320 and in the case of Central Bureau of Investigation,
Hyderabad, Vs. K. Narayana Rao, cited (supra), it cannot be held
that, the present petitioner/ ccused is involved while committing the
offence punishable under Section 420, 467, 468, 471, 166 read with
Section 34 of I.P.C.
16. The learned trial Court mechanically passed the order
dated 30.11.2019, below Exh.12 in R.C.C. No.331 of 2008 and
permitted to implead the present petitioner as accused in the original
complaint and issued process against the present petitioner for the
offence punishable under Sections 420, 467, 468, 471, 166 read with
Section 34 of I.P.C.. Further, the learned Revisional Court passed the
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impugned judgment and orders dated 23-01-2012 in Criminal
Revision No.139 of 2009 and 140 of 2009 and dismissed both the
revisions without considering the essential ingredients of the offences
under Section 420, 467, 468, 471, 166 read with Section 34 of I.P.C.
17. Therefore,the order passed by the learned Trial Court on
30.11.2009, below Exh.12 as well as the order below Exh.1 in R.C.C.
No.331 of 2008, so also, the impugned order passed by the Revisional
Court in Criminal Revision Application Nos. 139 of 2009 and 140 of
2009 are not sustainable in eye of law, hence, same needs to quash
and set aside. So also, the complaint as against the present
petitioner / original accused No.1 is liable to be quashed and set
aside.
18. In view of above discussion, I proceed to pass the
following order:-
ORDER
(i) The impugned orders dated 23.01.2012 passed by the learned
Additional Session Judge, Osmanabad/Revisional Court in
Criminal Revision Application Nos. 139 of 2009 and 140 of
2009, are hereby quashed and set aside.
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(ii) The Order dated 30.11.2009 passed below Exh.12 as well as
the order dated 30.11.2009 below Exh.1 in R.C.C. No.331 of
2008 are quashed and set aside.
(iii) The complaint bearing R.C.C. No.331 of 2008 as against the
present petitioner is quashed and set aside.
(iv) Rule is made absolute in above terms.
(v) No order as to costs.
[ Y. G. KHOBRAGADE, J. ]
SMS
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