Court Says Advocates Not Above the Law

The Jammu and Kashmir and Ladakh High Court has held that being an advocate does not place a person above the law, while directing the police to follow due process when seeking assistance from a lawyer in connection with an investigation.

The court’s order came in response to a plea by an advocate who alleged that he was being harassed and repeatedly summoned by the police in connection with an investigation.

Justice Sanjay Parihar passed the order, balancing the advocate’s apprehension of harassment against the legitimate needs of a criminal investigation.

The petitioner, an advocate by profession, had drafted an affidavit on behalf of the alleged victim in a case registered at Police Station Ramban under Section 137 of the Bharatiya Nyaya Sanhita and Sections 4 and 5 of the Protection of Children from Sexual Offences Act.

The police had addressed a communication to the Station House Officer of another police station, requiring the petitioner to render assistance in the investigation.

The petitioner’s case was that, under the garb of investigating the FIR, he was subjected to intimidation and harassment and was repeatedly called to the police station without adherence to due process.

This contention was strongly controverted by counsel for the respondents, who submitted that the affidavit drafted by the petitioner itself indicated that the alleged victim, who had been reported missing, had been in contact with the petitioner.

The court declined to accept that the police had acted outside the law in seeking the petitioner’s assistance, given that the affidavit he had drafted suggested a link between him and a missing alleged victim.

Advocates Not Above Law

The court made the observation that merely because the petitioner is an advocate does not place him above the law, and that being an officer of the court, he is expected to render lawful assistance to the investigating agency.

Such cooperation is in consonance with the administration of justice and the duties expected of an officer of the court.

An advocate’s professional status is not a shield against the ordinary obligation to assist a lawful investigation, particularly where the enquiry concerns a missing child.

The court was equally firm on the other side of the balance, holding that the police agency is equally required to act strictly within the four corners of law.

While seeking any information or assistance from the petitioner in connection with the alleged victim or the investigation, the investigating agency shall scrupulously adhere to the procedure established by law.

The order thus refuses to treat the choice as binary: an advocate cannot resist a lawful enquiry by invoking his robe, but nor can the police convert a legitimate investigation into a means of pressuring or harassing him outside the bounds of procedure.

Counsel for the petitioner conceded that, since the filing of the petition, the police had stopped calling the petitioner, and that as on date the cause of action did not survive.

He nonetheless sought a direction, to guard against any future apprehension of harassment, that the police not summon or require the petitioner’s presence except in accordance with due process.

Accepting that limited prayer, the court disposed of the petition with a direction that, while proceeding with the investigation of the FIR, if the assistance or presence of the petitioner is required, the same shall be sought strictly in accordance with the procedure prescribed by law.

Balancing Independence

The order is a compact but useful statement of a recurring tension: the professional independence and dignity of advocates, and their equal subjection to the law when they are themselves witnesses to, or connected with, facts relevant to a criminal investigation.

By framing the direction prospectively, requiring due process for any future summons rather than making any finding of past harassment, the court gave the petitioner a measure of protection without impeding the ongoing investigation into a serious matter involving a child.

This approach allows the investigation to proceed while ensuring that the rights of the advocate are protected, and that the police do not use the investigation as a pretext for intimidation.

In similar situations, courts have had to balance the need to investigate crimes with the need to protect the rights of individuals, including advocates, who may be witnesses or have information relevant to the investigation.

Due Process Matters

The court’s decision in this case highlights the importance of following due process and respecting the rights of all individuals involved in a criminal investigation.

It is a fact that the court’s decision will have implications for future investigations.