The Supreme Court on Wednesday stayed a Gujarat High Court order that refused to stay summons issued to a lawyer by the State police.
Advocate Ashwinkumar Govindbhai Prajapati had been summoned by the police under Section 132 of the Bharatiya Sakshya Adhiniyam on March 24 in relation to a case under the provisions of Bharatiya Nyaya Sanhita, Gujarat Money Lenders Act and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act.
Prajapati, a lawyer since 1977, had a month earlier, represented an accused, one Panchal Princekumar Bhavanishankar, in a bail plea in the case arising out of a loan transaction. A Sessions Court had granted bail to Bhavanishankar on February 25 on the plea argued by Prajapati.
After Prajapati himself was issued a notice by the police, he moved the Gujarat High Court. Justice Hasmukh D Suthar on June 12 said no case was made out to entertain Prajapati’s plea as the summons was issued in the capacity of witness. There was no violation of fundamental right of the petitioner, the High Court found.
Today, the Bench of Justice KV Viswanathan and Justice N Kotiswar Singh stayed the summons as well as the High Court order after hearing a plea moved by Prajapati against the High Court decision.
“There shall be a stay on the High Court order and a stay on the operation of summons and any other notices issued to the petitioner,” ordered the Court.
The Court also took a of whether the investigating agencies can be permitted to directly summon the lawyers in relation to the cases of their clients.
Justices KV Viswanathan and N Kotiswar Singh
Advocate Siddharth H Dave, appearing for Prajapati argued in the that the petitioner cannot be summoned as the information being sought from him was privileged.
In his plea before the top court, Prajapati argued that the High Court dismissed his petition in the absence of his lawyer.
“When the matter was taken up two minutes before the recess was about to get over, the petitioner’s advocate was unable to reach the courtroom. Without granting opportunity for representation, the Hon’ble High Court proceeded to dismiss the petition, thereby denying the petitioner a fair and reasonable opportunity of hearing,” the plea stated.
He also stated that the High Court failed to appreciate that he was was neither an accused nor a material witness to the facts of the case “but was being compelled solely due to his professional role as an advocate, which is impermissible under the law.”
The case, in which Prajapati had represented the accused, pertains exclusively to a dispute between the complainant and the accused, with him having no personal connection to the matter beyond his professional duties, it was contended.
“By upholding the notice, the [High] court has created a dangerous precedent that could be used to intimidate advocates representing contentious clients or causes, thereby undermining the criminal justice system and contravening public interest. The actions of the investigating agency appear to be a colorable exercise of power intended to pressurize the petitioner and prejudice the accused’s rights,” it was submitted.
Advocate Dave appeared alongwith Advocate on Record Siddhant Sharma and Advocate Prafull Bharadwaj for the petitioner.