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Gauhati HC Sets Aside Rs50K Fine on Advocates, Warns on Diligence
In a significant ruling that balances professional responsibility with practical realities, the has held that advocates cannot be made for a petitioner's whereabouts after filing a case. A comprising Chief Justice Ashutosh Kumar and Justice Arun Dev Choudhury set aside a Rs50,000 fine and a Bar Council referral imposed on two advocates by a , while simultaneously cautioning lawyers to be more diligent when accepting a at the request of a fellow advocate.
Background: A Missing Petitioner and Penalised Lawyers
The case originated from a filed in by one Beolin Kharbhih, who claimed to be the daughter of a former Deputy Superintendent of Police. She sought a court-monitored probe into her father's death. The appellants—advocates and —were approached by a fellow advocate who was reluctant to sign the due to a conflict of interest. The appellants accepted the brief in , after the petitioner was physically identified in the High Court campus by the referring advocate's registered clerk and before an .
The remained pending for six years. During this period, respondents suspected of involvement in the death alleged that Beolin Kharbhih was a fictitious person. A enquiry was ordered, which reported that the petitioner could not be located at her given address. Accepting this report, a dismissed the , imposed a fine of Rs50,000 on each advocate, and directed the to initiate disciplinary proceedings against them.
The advocates later discovered that one of the respondents had filed a against the petitioner in a property dispute before the —a fact they argued contradicted the claim that she was non-existent. However, their was dismissed by the on the ground that the petitioner's existence was only inferential.
Arguments: vs.
Before the , the appellants argued that the report merely stated the petitioner could not be found at her given address, not that she did not exist as a person. They pointed to the filed by respondent No.7 against the petitioner, which directly contradicted the respondents' assertion that she was fictitious. The advocates contended that they had acted in , relying on the identification by a registered clerk and the petitioner's physical presence at the time of filing. They emphasised that advocates cannot be made responsible for a client's whereabouts after the case is filed and argued.
The respondents, represented by , supported the 's findings that the advocates had been negligent in verifying the petitioner's existence.
Court's Analysis: Advocates Not , But Must Be Vigilant
The carefully examined the balance between professional accountability and the practical limits of an advocate's role. The court observed that while the was rightly dismissed due to the petitioner's , the penalty imposed on the advocates was not justified.
The Bench drew a clear distinction between the duty of an advocate at the time of accepting a case and responsibility for the petitioner's subsequent conduct. It held that the advocates should not have been held responsible merely because the petitioner could not be located later.
"Even otherwise, the appellants being Advocates cannot be made for the physical whereabouts of a writ-petitioner after filing of the and arguing the same."
The court noted that the advocates had followed standard institutional channels—the petitioner was identified by a registered clerk of another advocate practicing in the court. In these circumstances, imposing a fine and referring the matter to the Bar Council was unduly harsh.
"The appellants ought not to have been held responsible for the of the writ-petitioner."
"Any referral to the Bar Council over this issue would also tantamount to a very harsh treatment to the learned Advocates, who have practiced before this Court and have spent good time at the Bar."
Decision: Fine Set Aside, But Caution Issued
The modified the 's judgment. It upheld the dismissal of the as correct, given the petitioner's . However, it set aside the Rs50,000 fine imposed on each advocate and the direction for Bar Council proceedings. The order dismissing the was also set aside.
But the court did not stop there. It issued a clear warning to the legal fraternity:
"We express a note of caution for the learned Advocates to be more careful in accepting on the request of a friend without probing into the correctness of the averments made in the and being satisfied that the writ-petitioner is not ."
Implications: A Balanced Precedent
The ruling provides much-needed clarity on the extent of an advocate's liability when a client disappears after filing. It reaffirms that lawyers are not insurers of their clients' continued availability, but it also underscores that they cannot blindly rely on the word of a fellow lawyer without basic verification. The decision serves as a reminder that professional courtesy must be tempered with professional diligence, especially in cases where the client's existence is challenged.
The appeal was thus allowed with the modification of the order passed by the Writ Court.
