November 17, 2017
S.Maria Saranya vs M.J.Maria Jareen & Ors.
Date of Judgment: November 06, 2017
In this instant case taken up by the Madras High Court, it was stated that the accused have been in the habit of changing counsels frequently and also suppressed facts regarding pendency of anticipatory bail petition.
The case highlighted the issue of fake enrollment nos. and registrations held by Advocates and the Court took notice of statement issued by the Chairman of the Bar Council wherein it was stated that more than 33% of the lawyers in Tamil Nadu were fake.
In view of the aforesaid, the Madras High Court stated that the legal profession was deteriorating who were conducting Kangaroo Courts. To avoid this malpractice the Madras Court directed that the following procedure should be followed while filing of Vakalatmnama:
- Bail/anticipatory bail application should be in the form of an affidavit/petition duly signed by the petitioner/petitioner’s counsel concerned in all pages;
- If the anticipatory bail application is filed in petition format, the Advocate-on-record should sign in all the pages of the petition and if the anticipatory bail petition is filed in the affidavit format, the person who is attesting the affidavit shall sign in all the pages;
- In either case, the name of the Advocate/Attesting Person should be written/affixed in capital letters, mentioning his place of qualification, enrolment Number and Cell Phone Number;
- The photograph of the Advocates-on-record and that of the Advocate, who attests the Vakalat shall form part of the Vakalat and Registry shall scan the Vakalat so filed;
- The Advocate-on-record and the Advocate, who attested the Vakalat shall produce copies of the Enrolment Certificate, Bar Council Identity Card and the present residential or official address as proof. The Vakalat shall contain address together with e-mail address and Cell number. This will reduce malpractice and eradicate fake Advocates.
- For getting change of Vakalat, the consent of the counsel-on-record is duly required. Wherever the party is unable to get change of Vakalat, the new counsel should file Vakalat along with necessary documents, mentioned supra along with affidavit and petition of the party. The Courts below can accept it as a petition for changing the counsel and pass appropriate orders, immediately to avoid further sufferings to the litigants in criminal matters.
The Court directed that the aforesaid procedure for filing Vakalat applied to all the Courts/Tribunals situated in Tamil Nadu and shall take effect from 02.01.2018.
Court’s power to demand ID card- The Court directed that all Courts/Tribunals in Tamil Nadu shall have the power to demand the Identity Card/Enrolment Certificate/Address proof of an Advocate, if it has doubt and even direct them to produce Photostat copies of the same and Courts can refer it to the respective Bar Council for verification and if required, for necessary action.
Amendment to All India Bar Council Examination Rules, 2010- The Court suggested that there should be amendments to the All India Bar Council Examination Rules, 2010 and if required to the Advocates Act, 1961 to allow enrolment and practice of newly enrolled Advocates only after passing of the Bar Council exams, i.e. enrolment shall take place only after clearing of Bar Council exams.
In view of glaring instances showcasing fake and fraud Advocates, the Madras High Court has enumerated guidelines to be followed while filing of Vakaltnama and also suggested amendments to the All India Bar Council Examination Rules, 2010. It cannot be denied that fake Advocates exist in almost all the Courts throughout the nation and leniency in scrutiny and verification further escalates this malpractice. The guidelines suggested by the Madras High Court in the case shall be considered by all the Courts in the country so that this dereliction can be avoided.