Advocate Appearing For Co-Accused Son Not 'Fraud' On Court; MP High Court Quashes Cheating Case Against Lawyer

High Court of Madhya Pradesh at Jabalpur, in a significant ruling, has held that an advocate who is a co-accused in a criminal case is not legally prohibited from appearing as counsel for another co-accused. A Division Bench comprising Chief Justice Sanjeev Sachdeva and Justice Vinay Saraf observed that such an act does not amount to a "fraud upon the court" or an offence affecting the administration of justice under the Code of Criminal Procedure (CrPC).

The Court set aside an order of a Judicial Magistrate which had refused to discharge the petitioner, a practicing advocate, in a case of cheating under Section 417 of the Indian Penal Code (IPC). The bench noted that the Bar Council of India rules only prohibit an advocate from appearing in a case where they are a witness, not where they are a co-accused appearing for a family member.

The petitioner, Suresh Prasad Khare, a practicing lawyer, was implicated as a co-accused along with his son, Rupesh Khare, in an FIR alleging offences under Section 420/34 IPC. While the petitioner’s own quashing petition was pending, he appeared as counsel for his son in a separate quashing petition before a Single Judge. The Single Judge, noting that the petitioner was himself an accused and had allegedly suppressed the fact that his own petition was later dismissed, directed the initiation of proceedings under Section 340 CrPC for fraud and misconduct.

Consequently, a complaint was filed by the Principal Registrar (Judicial) under Section 417 IPC. The petitioner’s application for discharge under Section 227 CrPC was dismissed by the Judicial Magistrate First Class, Jabalpur, leading to the present criminal revision.

The primary question before the court was whether a complaint for an offence under Section 417 IPC could be maintained through the procedure prescribed under Section 340 CrPC. The court was also called upon to determine whether an advocate who is a co-accused commits fraud or professional misconduct by appearing as counsel for another co-accused in the same matter.

Section 340 CrPC Procedure Inapplicable To Offences Under Section 417 IPC

The Court noted that Section 340 CrPC provides the procedure specifically for cases mentioned in Section 195 CrPC, which relates to contempt of lawful authority of public servants and offences against public justice. It observed that Section 195(1) CrPC is applicable to offences punishable under Sections 172 to 188 IPC and certain other specific sections like 193 to 196, 199, and 205 to 211 IPC.

Court Explains Scope Of Section 195 CrPC

The bench emphasized that Section 195 CrPC has no applicability to Section 417 or 420 of the IPC. Relying on the Constitution Bench judgment in Iqbal Singh Marwah vs. Meenakshi Marwah (2005), the Court held that for an offence to fall under the ambit of Section 195, it must relate to documents given in evidence or contempt of lawful authority.

"Clearly the learned magistrate committed an error in taking cognizance of an offence under section 417 IPC on the basis of the complaint filed under Section 340 of Cr.P.C. against the petitioner," the Court observed.

No Fraud Committed Through Suppression Of Facts

The respondent-High Court had argued that the petitioner committed fraud by not disclosing that his own quashing petition had been dismissed. However, the Division Bench scrutinized the timeline of events and found that the son's petition was filed in January 2019, whereas the petitioner’s own petition was dismissed only later, in March 2020.

Court Finds Allegation Of Suppression Misplaced

The bench noted that since the second petition was filed before the dismissal of the first, there was no question of the petitioner suppressing a future dismissal. The Court further clarified that the two petitions were filed by different individuals, and therefore, the allegation of suppression of facts was factually misplaced and could not sustain a criminal charge.

Advocates Can Represent Co-Accused If Not A Witness

Addressing the allegation of professional misconduct, the Court examined Rule 13 of the Bar Council of India Rules (Standards of Professional Conduct and Etiquette). The rule prohibits an advocate from accepting a brief or appearing in a case where they have reason to believe they will be a witness on a material question of fact.

Bar Council Rules Do Not Prohibit Appearing For Co-Accused

The bench highlighted that Rule 13 falls under the section "Duty to Client" and not "Duty to Court." It observed that the rule does not contain any prohibition against a co-accused appearing as counsel for another co-accused, especially when the co-accused is a close relative like a son.

"Said Rule does not prohibit any co-accused to appear in a case as counsel. One should not lose sight of the fact that the Petitioner is an accused and appeared on behalf of the co-accused. The co-accused is none other than the son of the Petitioner," the bench remarked.

Mens Rea Essential For Holding Fraud Upon Court

Relying on the Supreme Court's decision in Sasikala Pushpa vs. The State of Tamil Nadu (2019), the Court held that "fraud" implies intentional deception aimed at achieving wrongful gain or causing loss. It noted that mens rea is an essential ingredient to hold that a fraud has been played upon the court.

Court Quashes Proceedings Against Advocate

The Court also took note of the fact that the State Bar Council had already dropped disciplinary proceedings against the petitioner, holding that no prima facie case of misconduct under Section 35 of the Advocates Act was made out. Finding no element of cheating or fraud, the Court concluded that the petitioner deserved to be discharged.

The High Court allowed the revision petition and set aside the Magistrate's order. The Court held that the petitioner did not commit any offence by representing his son in the quashing proceedings. Consequently, the criminal proceedings pending against the petitioner in RCT No. 9808/2022 were quashed.

Date of Decision: 22 May 2026