Tn bar council chairman Urgent letter to dgp. The Director General of Police, Office of the Director General of Police,

R.O.C. No. 27 of 2022 06.01.2022
To:
The Director General of Police,
Office of the Director General of Police, Dr. Radhakrishnan Road, Chennai – 600 004.

Sir,
Sub: To take action against erring officials and direct the subordinates to follow the due process of law while doing search of the Advocates office & residence-Reg.
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It is hereby bring to your kind notice that as per the Advocates Act, 1961 and the Bar Council of India Rules, the Advocates are practising and appearing on behalf of their clients before the Courts in order to safeguard their rights enshrined under the Constitution of India. But, nowadays the Police officials without getting prior permission from the competent Court of law, entering into the office and residence of the Advocates illegally in the guise of search of accused persons.
Already, it is brought to the notice of the Bar Council that on 16.09.2021, the Police Officials without getting prior permission has entered the office of Mr. Thiyaga Kamarajan, who is the Senior Member of the Thanjavur Bar Association and brutally damaged his office in the guise of search of an accused and the same has been elaborately

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discussed in the General Council held on 08.10.2021. After elaborate discussion, it has been resolved vide resolution No. 495 of 2021 “to forward the complaint and its connected documents to the State Level Co-ordination Committee for taking appropriate action”.
Subsequently the office has sent the same to the State Level CoOrdination Committee on 21.10.2021 and also forwarded to your goodself and the same is pending for consideration.

While being so, a Criminal Original Petition has been filed before
the Madurai Bench of the Hon’ble High Court of Madras in Crl.O.P(MD)No.20474 of 2021 by one Lakshmi “directing the Respondents No.2 to 5 not to harass the Petitioner in the name of enquiry”. In the above said Criminal Original Petition, one of the Counsel for the Petitioner therein namely Mr. E. Marees Kumar, who is practising as an Advocate before the Madurai Bench of the Madras High Court has filed an affidavit narrating about the hindrance caused by the police officials by entering his house without any permission for interrogating the whereabouts of his client. When the above said Crl.O.P(MD). No. 20474 of 2021 has been taken up for hearing on 03.01.2022, the Madurai Bench of the Hon’ble High Court of Madras has heavily condemned about the act of the Police Personal who have searched the house of Mr. E. Marees Kumar who is a counsel for the Petitioner therein without getting prior permission from the Jurisdictional Magistrate Court and also sought for the report from the Superintendent of Police about the illegal search.

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It is pertinent to mention here that the Advocates are the privileged class of persons and they are entitled to practice the profession of law as per the Advocates Act, 1961 and the Bar Council of India Rules. Further, the Advocates owe several duties and their rights to practise profession of law should be protected to uphold the rule of law. Hence, the act and rules entrusted the Advocates as the recognized class of persons to practise law as provided under the Advocates Act, 1961 as follows,

“29. Advocates to be the only recognized class of persons entitled to practice law: Subject to the provisions of this Act and any rules made there under, there shall, as from the appointed day, be only one class of persons entitled to practice the profession of law, namely, advocates.”

33. Advocate alone entitled to practice: Except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practice in any court or before any authority or person unless he is enrolled as an advocate under this Act.”

Therefore, the Advocates while discharging their professional duties, owes several duties as laid down in Part VI Chapter II of Bar Council of India Rules as standards of Professional Conduct and etiquette as follows,

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STANDARDS OF PROFESSIONAL CONDUCT AND ETIQUETTE

An advocate shall, at all times, comfort himself in a manner befitting his status as an officer of the court, a privileged member of the community; and a gentleman, bearing in mind that what may be lawful and a moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be improper for an advocate. Without prejudice to the generality of the forgoing obligation, an advocate shall fearlessly uphold the interests of his client, and in his conduct conform to the rules hereinafter mentioned both in letter an in spirit. The rules hereinafter mentioned contain canons of conduct and etiquette adopted as general guides; yet the specific mention thereof shall not be construed as a denial of the existence of other equally imperative though not specifically mentioned.

Section I- Duty to the Court
Section II- Duty to the Client
Section III- Duty to opponent
Section IV- Duty to Colleagues
Section V- Duty in imparting legal education
Section VI- Duty to render legal aid

Duty towards the client is extracted as follows,
An advocate is bound to accept any brief in the courts or tribunals or before any other authority in or before which he proposes to practice at a fee consistent with his standing at the Bar and the nature of the case. Special circumstances may justify his refusal to accept a particular brief.

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An advocate shall not ordinarily withdraw from engagements, once accepted, without sufficient cause and unless reasonable and sufficient notice is given to the client. Upon his withdrawal from a case, he shall refund such part of the fee as has not been earned.

An advocate should not accept a brief or appear in a case in which he has reason to believe that he will be a witness, and if being engaged in a case, it becomes apparent that he is a witness on a material question of fact, he should not continue to appear as an advocate if he can retire without jeopardizing his client’s interests.

An advocate shall, at the commencement of his engagement and during the continuance thereof, make all such full and frank disclosures to his client relating to his connection with the parties and any interest in or about the controversy as are likely to affect his client’s judgment in either engaging him or continuing the engagement.

It shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and honourable means without regard to any unpleasant consequences to himself or any other. He shall defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused, bearing in mind that his loyalty is to the law which requires that no man should be convicted without adequate evidence…

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It is also reiterated in the Judgement passed by the Hon’ble High Court of Madras in D. Veerasekaran –Vs- State of Tamilnadu reported in 1992(1) MWN(Cri) Mad,

“12. Having held that the Designated Court has come to a wrong conclusion in rejecting the bail application, on the materials available on record, it is necessary to consider the special circumstances of this case, having regard to the fact that the petitioner is practicing advocate, who belongs to a noble profession. Under sections 29 and 30 of the Advocates’ Act 1961 (Act 25 of 1961) a right to practice is given to an advocate. Under Sections 16(3) and 49(1)(g) of the Act, Rules are made. Under the Bar Council Rules, especially under Rules 15 and 17, an advocate cannot commit breach of obligation imposed by Section 126 of the Evidence Act. Under Rule 46 an advocate has got a duty to render legal aid. Under Section 126 of the Evidence Act, no barrister, attorney, pleader or vakil can at any time be permitted without his client’s express consent, to disclose any communication made to him in the course and for his purpose of his employment as such barrister etc. It is true that this section will not apply to a communication made in furtherance of an illegal purpose. Section 129 of the Evidence Act speaks about confidential communications with legal advisers which reads as follows:
“…No one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal professional adviser, unless he offers himself as a -7-
witness, in which case he may be compelled to disclose any such communications as may appear to the court necessary to be known in order to explain any evidence which he has given, but no others…”
In the above said Judgment, the Hon’ble Judge has referred the following Judgments,

1. V. Muralidharan -Vs- N.J. Antony(1985 Crl.LJ 633)
2. Menaka Sanjay Gandhi -Vs- Rani JethMalani(AIR 1979 SC 468)

Therefore, the Advocates while discharging their professional duties shall not be hindered by the Police in the name of search of the office or the residence of the Advocates without getting prior permission from the concerned court and the act of illegal search clearly violates the provisions of the Act and Rules.
Therefore, you are hereby requested to issue suitable direction to the Sub-ordinates concerned to adhere the provisions of laws while doing search in the office and residence of the Advocates and also request your goodself to take appropriate action against the erring subordinates who have caused hindrance to the Advocates while discharging their professional duty to safeguard the interest of the litigant public at large.

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