"Police Have No Business To Know How Advocate Represents Accused" : Lawyer & GHCAA Challenge Section 41A Notice Before Gujarat HC

Before the Bench of Justice Samir Dave, Senior Counsel Mihir Joshi argued that if such notices are issued to advocates agreeing to defend an accused, it would have a chilling effect upon them and that they would think twice before representing the accused.

"This (case) crosses the line…Police have no business getting into how an advocate represents the accused, what procedure he adopted to represent…the role of a lawyer in representing his client, who is an accused, that is inviolable, that 41A Can't enter."

It may be noted that the petitioner/Kadri has been issued with a 41-A CrPC in connection with an FIR registered against Senior Lawyer Syed (Kadri's senior) pertaining to a business dispute and he has been named as an accused of wrongful confinement, assault, and extortion.

Kadri had represented Senior Advocate Syed during his anticipatory bail hearing and quashing petition in an FIR. He was granted anticipatory bail by Gujarat HC on June 8.

Now, on June 15, 2022, at 10:07 PM, the Pethapur police issued a Section 41A, CrPC notice to Kadri indicating that sufficient evidence was available against him of illegal assistance to or harbouring Syed.

It was further submitted before the HC by the Senior Counsel Mihir Joshi that a notice under Section 41A was completely unsustainable against Advocate Kadri as the allegation that the advocate allegation provided "illegal assistance" to his client, is not substantiated in the case, and the same is vague in nature.

Questioning the basis of issuance of the notice to Kadri, Senior Counsel Joshi argued:

"What would be the purpose of issuance of a 41A CrPC notice to a lawyer after the accused, whom he is said to have harboured, is on bail with a direction to remain present, you are issuing me notice for what? What earthly investigation do you need to do?... Ingredients of 41-A CRPC are not met out in the instant case."

It was also contended that an advocate is bound to assist an accused and the act of 'harbouring' (as allegation) can't apply to a lawyer who is filing a case, on behalf of his client/accused.

On the other hand, Senior Advocate Percy Kavina informed the bench that the Gujarat High Court Advocates' Association (GHCAA) has filed an intervention application in the plea and he would be representing the association.

It may be noted that the Gujarat High Court Advocates' Association (GHCAA) has already passed a unanimous resolution on June 16 expressing solidarity with advocate Aniq Kadri.

Senior Counsel Kavina argued that in the instant case, one of the wheels of the justice delivery system (Advocates) is being attacked and that the might of the state is being put to use with full vigour.

"If you weaken the office of the advocate, you are shaking the foundations of Republic...We are shaking the very chair we are sit. Without the office of an advocate, how does a citizen know the law, and get access to justice?"

He further told the court that the GHCAA has taken the case very seriously as an association, it is concerned with the rights of the bar. "Process can't be used as punishment," he added.

On the other hand, the Public prosecutor appearing for the respondents, made a submission that no action would be taken against Kadri till the next date of hearing of the case. With this, the Court posted the case for further hearing on June 21, 2022.