Prosecutors need not follow police advice; Bar Council action over case conduct requires adverse judicial remarks, Madras HC says.

The petitioner, a practising advocate and de facto complainant in Crime No. 219 of 2021, sought a mandamus directing the Bar Council of Tamil Nadu and Puducherry to take legal action against the fifth respondent, a former Additional Public Prosecutor.

The petitioner alleged, among other things, that the prosecutor had not sought cancellation of the accused’s bail despite a police request, had not seriously opposed the return of the accused’s vehicle RC book, and that case records were missing.

The Court dispensed with notice to the fourth and fifth respondents and considered whether the allegations justified disciplinary action by the Bar Council.

Whether the petitioner’s allegations against the former prosecutor disclosed prima facie professional misconduct warranting the Bar Council’s disciplinary intervention

Whether the Bar Council could be directed to initiate disciplinary action based on the prosecutor’s decisions in conducting the criminal case, absent a judicial finding of serious impropriety

Article 22(1) of the Constitution protects an arrested person’s right to consult and be defended by a legal practitioner of choice, while Rule 11 of Chapter II of the Bar Council of India Rules provides that an advocate is bound to accept a brief, subject to special circumstances justifying refusal.

In A.S. Mohammed Rafi v. State of Tamil Nadu, (2011) 1 SCC 688, the Supreme Court condemned Bar Association resolutions that prevent advocates from defending particular accused persons.

The Court also applied the principle that a prosecutor must exercise independent judgment: the prosecutor is not bound by the police’s advice and must conduct the case fairly, rather than simply echoing the police version.

Disciplinary action by the Bar Council requires prima facie material of professional misconduct; the Court observed that a judicial finding of serious impropriety could furnish a basis for such action.

The Court held that the prosecutor’s decisions on seeking bail cancellation, opposing the return of property, and selecting evidence or witnesses were matters for the prosecutor’s independent professional judgment, not decisions controlled by the police.

The allegations, as presented, did not establish prima facie professional misconduct or provide a basis to direct the Bar Council to act.

The Court further reasoned that scrutiny of a prosecutor’s conduct by the Bar Council merely because the prosecutor did not follow an investigating officer’s recommendation could undermine prosecutorial independence; it indicated that a judicial finding of serious impropriety could provide a proper basis for disciplinary action.

It dismissed the writ petition without costs and issued no direction to the respondents.