Back
2026 Supreme(All) 596
HIGH COURT OF JUDICATURE AT ALLAHABAD
J.J. Munir, Tarun Saxena, J.
Samarpan Jain – Petitioner
Versus
State Of U.P. And Others – Respondents
Criminal misc. Writ petition No. - 23466 of 2025
Decided On : 21-05-2026
For the Petitioner: Sharad Sharma, Sushil Shukla
For the Respondent: G.A.
A legal practitioner acting in a professional capacity and performing duties such as filing appeals or advising on statutory pre-deposits cannot be held criminally liable for conspiracy. Such actions are protected professional functions and do not constitute criminal intent or collusion with a client.
Headnote:(A) Bharatiya Nyaya Sanhita, 2023 - Sections 61(2), 318(4), 336(3), 338, 340(2) - Goods and Services Tax Act, 2017 - Section 107 - Criminal liability - Professional act - Alleged conspiracy - An advocate, in discharge of professional duties, representing a client to file a statutory appeal, cannot be implicated in criminal proceedings for conspiracy on account of advice or procedure adopted - A lawyer acts to protect rights of citizens and ensure access to legal aid; such professional acts are protected and cannot be criminalized merely because the authority disagrees with the legal interpretation adopted. (Paras 17-19)
(B) Professional Capacity - Criminal prosecution - Initiation of criminal proceedings against a legal practitioner for exercising professional functions strikes at the core of the right to practice and limits citizens' ability to seek legal assistance - Courts must ensure that professional conduct is not misinterpreted as malicious collusion or criminal conspiracy. (Para 17)
Facts of the case:
A legal practitioner filed a statutory appeal on behalf of a client challenging a tax assessment, utilizing input tax credit for pre-deposit, based on prevailing legal precedents. Subsequently, the tax authority lodged a first information report against both the client and the legal practitioner, alleging tax evasion and conspiracy. A police investigation led to the filing of a charge-sheet and the issuance of a cognizance order by the subordinate court. The practitioner challenged these proceedings, asserting that the actions taken were strictly within a professional capacity.
Findings of Court:
The court found that the criminal proceedings were based on a misunderstanding of professional liability. The actions undertaken by the legal practitioner in pursuing the appeal and advising on pre-deposit did not amount to criminal conspiracy or participation in tax evasion. The court emphasized that holding an advocate criminally liable for professional advice would undermine the legal profession and the fundamental right to legal representation.
Issues: Whether a legal practitioner can be held criminally liable for conspiracy based on professional acts performed while representing a client in tax-related statutory proceedings.
Ratio Decidendi: An advocate is duty-bound to represent clients and pursue legal remedies fearlessly; professional actions, even if based on a contentious interpretation of law, do not equate to criminal conspiracy, and initiating criminal proceedings for such acts violates constitutional principles safeguarding the right to legal assistance.
Result: Petition allowed; the first information report, the charge-sheet, and the order of cognizance are quashed insofar as they relate to the legal practitioner.
| Table of Content |
|---|
| 1. factual background leading to fir against legal counsel. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11) |
| 2. professional immunity for advocates acting in authorized capacity. (Para 12 , 13 , 14 , 15 , 16) |
| 3. advocates cannot be prosecuted for conspiracy based on professional legal representation. (Para 17 , 18) |
| 4. quashing of fir, chargesheet, and cognizance order against petitioner. (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. 205 of 2025, under Sections 61(2), 318(4), 336(3), 338, 340(2), BNS, Police Station- Ganj, District- Rampur as well as the impugned cognizance order dated 08.05.2026 passed by the learned Additional Chief Judicial Magistrate, Court No. 1, Rampur and the Charge-sheet No. 45 of 2026 dated 04.04.2026 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/S0088/2025. One Aqueel Miyan is the proprietor of the firm called M/s ABA Traders having GSTIN-09DIQPM4088H1Z with its registered office at Mohalla Hazrat Colony, 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. 3,55,05,189/- as tax, besides interest and penalty for the financial year 2022-2023 and Rs. 4,80,54,748/- as tax, interest and penalty for the financial year 2023-2024 against his firm.
8. According to the instructions of his client Aqueel Miyan, 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 Industries Ltd. , 2025 SCC OnLine SC 1526.
9. The case further is that after filing of the statutory appeals on 24.09.2025, the petitioner's client was served dasti with an intimation dated 23.09.2025 from the office of the Appellate Authority-3, Moradabad wherein it was said that the pre-deposit of 10 % of the disputed tax from his Electronic Cr
