Gujarat High Court
Dhairya Overseas vs State Of Gujarat on 17 January, 2025
NEUTRAL CITATION
C/SCA/528/2025 ORDER DATED: 17/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 528 of 2025
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DHAIRYA OVERSEAS & ORS.
Versus
STATE OF GUJARAT
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Appearance:
H P BAXI(9459) for the Petitioner(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 17/01/2025
ORAL ORDER
1. By the present petition, the petitioners are seeking the
relief that Mr. H.P. Baxi be permitted to appear and defend the
petitioners in Criminal Appeal No.174 of 2022 pending before
the Sessions Court/ Additional Sessions Court at Jamnagar.
2. Learned counsel for the petitioners submits that it is a
constitutional right of the petitioners to engage an advocate of
their choice in criminal proceedings against them. He submits
that by way of various judgments, the Apex Court as well as the
Division Bench of this Court have held that the accused cannot
be denied to have an advocate of his choice to defend himself in
the criminal proceeding. In support of his contention, learned
counsel has placed reliance on the following judgments:
(1) Judgment of the Hon'ble Supreme Court of India
dated 18.12.1968 in Writ Petition No.355 of 1968 in
the case of President of India v. In the matter of
Madhu Limaye;
(2) Judgment of the Hon'ble Supreme Court of India
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C/SCA/528/2025 ORDER DATED: 17/01/2025
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dated 9.12.2013 in Civil Appeal No.1939 of 2004 in
the case of Glaxosmithkline Pharmaceuticals Limited
v. Union of India;
(3) Judgment of the Hon'ble Supreme Court of India
dated 11.1.2012 in Criminal Appeal No.1091 of 2006
in the case of Mohd. Hussain @ Julfikar Ali v. State
(4) Judgment of this Court dated 31.7.2000 in Criminal
No.921 of 1998 in the case of Dineshbhai Dhemenrai
v. State.
He, therefore, submits that the petitioners may be granted
permission to engage Mr. H.P. Baxi, who is a retired Principal
District Judge, and who cannot accept the brief in view of the
amended Rule 7 of the Bar Council of India Rules, 1975 ("Rules,
1975" for short). Learned counsel further submits that the
Rules, so framed, cannot bind the Court and that the Hon'ble
Court can permit the petitioners to engage an advocate of their
choice despite there being a bar under the Rules, 1975. He,
therefore, prays that an appropriate writ be issued.
3. Heard the learned counsel for the petitioners and perused
the documents on record.
4. In the present case, the proceedings under Section 138 of
the Negotiable Instruments Act, 1881 came to be initiated
against the petitioners in the Court of Additional Chief Judicial
Magistrate at Jamnagar, vide Criminal Case No.7903 of 2013.
All the petitioners have been held guilty for the offence under
Section 138 of the N.I. Act and simple imprisonment of one year
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C/SCA/528/2025 ORDER DATED: 17/01/2025
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and fine of Rs.22 lacs has been imposed vide judgment and
order dated 31.5.2022. The petitioners, thereafter, preferred
Criminal Appeal No.174 of 2022 against the said judgment and
order before the Sessions Court at Jamnagar through an
advocate. Now, the petitioners want to engage Mr. H.P. Baxi,
Advocate in the said Appeal, who is a retired Principal District
Judge. Since there is a bar of Rule 7 of the Rules, 1975, said
advocate Mr. H.P. Baxi cannot act as an advocate on their
behalf.
5. It is a trite law that the petitioners have right to engage an
advocate of their choice to defend themselves in the judicial
proceedings, however such right is not an unbridled right. The
said right is also subject to the Rules, 1975, which are statutory
Rules. The petitioners cannot insist on engagement of one
particular advocate who is having legal bar under Rule 7 of the
Rules, 1975. The petitioners can only engage an advocate of
their choice in consonance with the Rules, 1975 and this Court
cannot grant any permission contrary to the Rules, 1975. The
petitioners can exercise their right subject to the prevalent
Rules.
6. The present petition is misconceived and is accordingly,
DISMISSED. No order as to costs.
Sd/-
(ANIRUDDHA P. MAYEE, J.)
OMKAR
