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2026 Supreme(All) 521
HIGH COURT OF JUDICATURE AT ALLAHABAD
J.J. Munir, Tarun Saxena, JJ.
Samarpan Jain – Petitioner
Versus
State Of U.P. And Others – Respondents
Criminal misc. Writ Petition No. - 23443 of 2025
Decided On : 21-05-2026
For the Petitioner: Sharad Sharma, Sushil Shukla
An advocate acting in a professional capacity cannot be prosecuted for criminal conspiracy for strategies or advice provided to a client. Prosecuting legal professionals for the exercise of such duties infringes upon the constitutional right to legal assistance and the independence of the bar.
Headnote:(A) Criminal Law - Professional Duties - Advocate - Criminal conspiracy - An advocate acting in a professional capacity and exercising professional judgment on behalf of a client cannot be held liable for criminal conspiracy, even if the advice or the procedure followed is later found to be legally incorrect or based on a disputed interpretation of law. (Paras 12, 13, 14, 18)
(B) Constitution of India - Articles 14 and 21 - Right to legal representation - Criminalizing the professional acts of an advocate infringes upon the constitutional rights of citizens to legal assistance and jeopardizes the independence of the legal profession. (Para 17)
(C) Criminal Procedure - Quashing of proceedings - Where an FIR, charge-sheet, and cognizance order are predicated solely on the professional acts of an advocate, such proceedings violate fundamental principles of criminal liability and are liable to be quashed. (Paras 17, 19)
Facts of the case:
The petitioner, a legal professional, was engaged by a client to file statutory appeals regarding tax assessments. Relying on an interpretation of prevailing law, the petitioner facilitated a pre-deposit for the appeal using an electronic credit ledger. The tax authorities rejected the procedure and subsequently initiated criminal proceedings against both the client and the petitioner, alleging conspiracy and tax evasion. The police filed a charge-sheet and a magistrate took cognizance, prompting the petitioner to seek relief before the High Court.
Findings of Court:
The court observed that the petitioner was merely performing professional duties in the course of representing a client. It held that merely adopting a specific legal position or mode of procedure while acting in a professional capacity does not constitute a criminal conspiracy with the client.
Issues: Whether a legal professional can be prosecuted for criminal conspiracy for professional services rendered, specifically regarding the method of compliance adopted in a tax appeal.
Ratio Decidendi: The court reasoned that an advocate is required to work fearlessly and that holding a professional liable for actions taken in the discharge of professional duties would undermine the right to legal assistance and the independence of the bar.
Result: Petition allowed; the FIR, charge-sheet, and order of cognizance against the petitioner are quashed.
| Table of Content |
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| 1. factual background and circumstances leading to the filing of the writ petition. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 16) |
| 2. advocates cannot be held liable for criminal conspiracy for routine professional actions. (Para 12 , 13 , 14) |
| 3. criminal prosecution of legal counsel for professional duties violates article 14 and 21. (Para 15 , 17 , 18) |
| 4. quashing of fir and proceedings initiated against an advocate for professional conduct. (Para 19 , 20 , 21) |
JUDGMENT :
Order on Criminal Misc. Amendment Application No.3 of 2026.
1. The application is allowed
2. Let the amendment be carried out during the course of the day.
Order on Writ Petition
1. 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.
2. The parties do not propose to file any further affidavits.
3. Admit.
4. Heard forthwith.
5. 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.
6. 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 cognizance 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.
7. 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 practices and specializes 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. One 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 questioning orders dated 16th of April, 2025 passed by the Deputy Commissioner, GST, Sector-1, Rampur, under Section 74 of the State Goods and Services Tax Act, 2017 assessing a sum of Rs. 81,46,291/- as tax, besides interest and penalty for the financial year 2021-2022, Rs. 4,90,78,118/- as tax, interest and penalty for the financial year 2022-2023 and Rs. 4,80,16,615/- towards tax, interest and penalty for the financial year 2023- 2024 against his firm. For the financial year 2021-2022, the petitioner did not file an appeal and assertion to that effect in the FIR is said to be factually incorrect.
8. 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 emphasized that payment of pre-deposit of 10 % of the disputed tax by utilization of the Input Tax Credit and Electronic Credit Ledger of any assessee is permissible under CBIC-20001/2/2022- GST dated 06.07.2022. The aforesaid provision and procedure for making pre- deposit was interpreted that way by a Division Bench of the Gujarat High Court in M/s Yasho Industries Ltd. v. Union of India and another, a judgment that was upheld by the Supreme Court in Union of India and another v. Yasho Indust
