# Jitender @ Kalla v. State (Govt of NCT of Delhi) & Ors

- **Citation:** 2025 INSC 249
- **Court:** Supreme Court of India
- **Decided:** 2025-02-20
- **Case number:** Criminal Appeal No. 865 of 2025
- **Bench:** Abhay S. Oka, Augustine George Masih
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jitender-kalla-v-state-govt-of-nct-of-delhi-ors-38306
- **Pages:** 37

## Headnote

I.
Whether the Supreme Court decisions in Indira Jaising v.
Supreme Court of India (I) and (II), which lay down the
guidelines for the designation of senior advocates, require
reconsideration.
II.
Whether an advocate on record is guilty of misconduct by
merely lending his name to petition without further participation
in the proceedings of the case.
Headnotes†
The appellant was convicted and sentenced to thirty years
of rigorous imprisonment without the right to seek remission
until the sentence was complete, a punishment restored by the
Supreme Court in an earlier judgment - The present Special
Leave Petition (SLP) was filed by the appellant challenging
a High Court order passed in a separate and unconnected
case concerning another convict - While filing the SLP, the
appellant suppressed the material fact that his sentence was
for a fixed term of thirty years without remission, leading
the Court to initially proceed on the footing of a simple life
sentence - Application was filed by the informant pointing
out the suppression of material fact - Apex court sought
explanation from Shri Jaydeep Pati, AOR and Shri Rishi
Malhotra, Advocate (later designated as Senior Advocate) and
refer the issue of designation of Senior Advocate to Hon'ble
Chief Justice of India to consider. [Paras 1-9, 44, 45]
The decisions of this Court in the case of Indira Jaising-I and
Indira Jaising-II, which lay down the guidelines for designation
of senior advocates by this Court and High Courts across the
country under the 1961 Act, need reconsideration - Our views
* Author
1970
[2025] 2 S.C.R.
Supreme Court Reports
need to be placed before the Hon'ble Chief Justice of India to
enable him to consider whether the issues decided in the two
decisions in the case of Indira Jaising need reconsideration
by a larger Bench:
Held: In Indira Jaising-I, this Court dealt with the challenge in a
petition under Article 32 of the Constitution of India, inter alia, to
the system of designation of senior advocates followed by various
High Courts, including the method of secret ballot - This Court
considered the practices followed in various other nations and
various High Courts in India - Thereafter, this Court proceeded
to lay down mandatory guidelines which would cover the exercise
of designation of senior advocates by this Court and all the High
Courts - A direction was given to modify the norms/guidelines
in existence so as to be in accord with the directions - In Indira
Jaising-II, this Court reconsidered some of the directions issued
in Indira Jaising-I - This Court considered the issues of voting by
secret ballot, cut-off marks, and points assigned for publication -
This Court also considered the aspect of personal interview and
other general aspects - The mandatory guidelines have been laid
down by this Court in the case of Indira Jaising-I in the exercise of
powers under Article 142 of the Constitution of India - However,
paragraph 74 of the decision indicates that this Court was of the
view that the guidelines may require reconsideration in the light
of the experience to be gained over a period of time - Even the
decision in the case of Indira Jaising-II in paragraph 51 records that
the process of improvement of the guidelines is a continuous one,
as we learn from every experience - We are conscious of the fact
that both the decisions in the case of Indira Jaising are by a Bench
of three Hon'ble Judges and we are respectfully bound by the said
decisions - Neither can we disagree with the two binding decisions
nor can we take a contrary view - However, all that we are doing
is expressing a few serious doubts and concerns - We propose
to direct that this issue be placed before the Hon'ble Chief Justice
of India to consider whether the issue needs to be reconsidered
by a Bench of appropriate strength - This exercise will be within
the four corners of what is held by the Constitution Bench in the
case of the Central Board of Dawoodi Bohra Community and Anr.
there i

## Text

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[2025] 2 S.C.R. 1969 : 2025 INSC 249
Jitender @ Kalla
v.
State (Govt of NCT of Delhi) & Ors.
(Criminal Appeal No. 865 of 2025)
20 February 2025
[Abhay S. Oka* and Augustine George Masih, JJ]
Issue for Consideration
I.
Whether the Supreme Court decisions in Indira Jaising v.
Supreme Court of India (I) and (II), which lay down the
guidelines for the designation of senior advocates, require
reconsideration.
II.
Whether an advocate on record is guilty of misconduct by
merely lending his name to petition without further participation
in the proceedings of the case.
Headnotes†
The appellant was convicted and sentenced to thirty years
of rigorous imprisonment without the right to seek remission
until the sentence was complete, a punishment restored by the
Supreme Court in an earlier judgment - The present Special
Leave Petition (SLP) was filed by the appellant challenging
a High Court order passed in a separate and unconnected
case concerning another convict - While filing the SLP, the
appellant suppressed the material fact that his sentence was
for a fixed term of thirty years without remission, leading
the Court to initially proceed on the footing of a simple life
sentence - Application was filed by the informant pointing
out the suppression of material fact - Apex court sought
explanation from Shri Jaydeep Pati, AOR and Shri Rishi
Malhotra, Advocate (later designated as Senior Advocate) and
refer the issue of designation of Senior Advocate to Hon'ble
Chief Justice of India to consider. [Paras 1-9, 44, 45]
The decisions of this Court in the case of Indira Jaising-I and
Indira Jaising-II, which lay down the guidelines for designation
of senior advocates by this Court and High Courts across the
country under the 1961 Act, need reconsideration - Our views
* Author
1970
[2025] 2 S.C.R.
Supreme Court Reports
need to be placed before the Hon'ble Chief Justice of India to
enable him to consider whether the issues decided in the two
decisions in the case of Indira Jaising need reconsideration
by a larger Bench:
Held: In Indira Jaising-I, this Court dealt with the challenge in a
petition under Article 32 of the Constitution of India, inter alia, to
the system of designation of senior advocates followed by various
High Courts, including the method of secret ballot - This Court
considered the practices followed in various other nations and
various High Courts in India - Thereafter, this Court proceeded
to lay down mandatory guidelines which would cover the exercise
of designation of senior advocates by this Court and all the High
Courts - A direction was given to modify the norms/guidelines
in existence so as to be in accord with the directions - In Indira
Jaising-II, this Court reconsidered some of the directions issued
in Indira Jaising-I - This Court considered the issues of voting by
secret ballot, cut-off marks, and points assigned for publication -
This Court also considered the aspect of personal interview and
other general aspects - The mandatory guidelines have been laid
down by this Court in the case of Indira Jaising-I in the exercise of
powers under Article 142 of the Constitution of India - However,
paragraph 74 of the decision indicates that this Court was of the
view that the guidelines may require reconsideration in the light
of the experience to be gained over a period of time - Even the
decision in the case of Indira Jaising-II in paragraph 51 records that
the process of improvement of the guidelines is a continuous one,
as we learn from every experience - We are conscious of the fact
that both the decisions in the case of Indira Jaising are by a Bench
of three Hon'ble Judges and we are respectfully bound by the said
decisions - Neither can we disagree with the two binding decisions
nor can we take a contrary view - However, all that we are doing
is expressing a few serious doubts and concerns - We propose
to direct that this issue be placed before the Hon'ble Chief Justice
of India to consider whether the issue needs to be reconsidered
by a Bench of appropriate strength - This exercise will be within
the four corners of what is held by the Constitution Bench in the
case of the Central Board of Dawoodi Bohra Community and Anr.
there is one more reason why we are undertaking this exercise -
Both the decisions lay down that making such modifications and
improvements will be a continuous exercise - For the reasons we
have recorded hereafter, our views need to be placed before the
[2025] 2 S.C.R.
1971
Jitender @ Kalla v. State (Govt of NCT of Delhi) & Ors.
Hon'ble Chief Justice of India to enable him to consider whether
the issues decided in the two decisions in the case of Indira Jaising
need reconsideration by a larger Bench. [Paras 30, 33, 34, 36, 40]
An advocate-on-record of this Court is bound to maintain a
much higher standard of professional conduct than any other
advocate - It is only through an advocate-on-record that a
litigant can seek justice from this Court unless he wants to
appear in person - Therefore, the role of an advocate-onrecord is very crucial - Unless he maintains a high standard
of conduct, he will be of no assistance to this Court - The
standard of conduct of an advocate-on-record always ought
to be higher than the conduct of any other advocate who is
not an advocate on record - Every advocate-on-record must
render effective service so that a common man can access
remedies before this Court - In case any advocate-on-record
commits misconduct or is guilty of conduct unbecoming of
an advocate-on-record, an action against him as per Rule 10
of Order IV is warranted:
Held: When a petition/appeal/counter-affidavit is not drafted by the
advocate-on-record, the advocate-on-record who files it is entirely
and wholly responsible to this Court - Therefore, when an advocateon-record receives a draft of a petition/appeal/counter-affidavits
from any other advocate, it is his duty to go through the case
papers and, thereafter, to carefully go through the petition/appeal/
counter-affidavits to ascertain whether correct facts have been
stated in the draft and whether all relevant documents are annexed
to the petition/appeal/counter-affidavits - After reading the case
papers, if he has any doubt, he must get the doubt clarified either
by contacting the client or his local advocate - He is responsible
for ensuring that he gets correct factual instructions so that there
is no suppression of facts while filing petitions/appeals/counteraffidavits - An advocate-on-record is answerable to this Court since
he has a unique position under the 2013 Rules - Therefore, when
incorrect facts are stated in the petition/appeal/counter-affidavits or
when material facts or documents are suppressed, the advocateon-record cannot shift the entire blame on either the client or his
instructing advocates - Therefore, it is his duty to be cautious and
careful - If advocates-on-record start merely lending their names to
petitions/appeals/counter-affidavits drafted by somebody else, the
very purpose of setting up the institution of advocates on-record
1972
[2025] 2 S.C.R.
Supreme Court Reports
will be frustrated - The duty of the advocate-on-record does not
end after filing a case or a counter - Even if the counsel appointed
by him is not present, he must be ready with the case on law and
facts and effectively assist the Court - If advocates-on-record
start behaving irresponsibly and start merely lending their names
while filing petitions/appeals/counter-affidavits, it may have a direct
impact on the quality of justice rendered by this Court - Therefore,
in case any advocate-on-record commits misconduct or is guilty of
conduct unbecoming of an advocate-on-record, an action against
him as per Rule 10 of Order IV is warranted. [Paras 22-25, 44]
Case Law Cited
Indira Jaising v. Supreme Court of India (I) [2017] 10 SCR 478 :
(2017) 9 SCC 766; Indira Jaising v. Supreme Court of India (II)
[2023] 5 SCR 434 : (2023) 8 SCC 1 - distinguished.
Jitendra @ Kalia v. State of Govt. of NCT of Delhi [2018] 12
SCR 622 : (2019) 13 SCC 691; Central Board of Dawoodi Bohra
Community and Anr. v. State of Maharastra and Anr. [2004] Supp.
6 SCR 1054 : (2005) 2 SCC 673 - relied on.
Amar Vivek Aggrawal v. High Court of Punjab & Haryana and Ors.
(2022) 7 SCC 439; Aligarh Muslim University v. Naresh Agrawal &
Ors., 2024 INSC 856 : [2024] 11 SCR 1647 - referred to.
List of Acts
Advocates Act 1961; Constitution of India; Supreme Court Rules,
2013.
List of Keywords
Advocate on Record; Senior Advocate; Advocate; Convict; Duty;
Conduct.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
865 of 2025
From the Judgment and Order dated 08.01.2024 of the High Court
of Delhi at New Delhi in WPCRL No. 72 of 2024
With
Writ Petition (Crl.) No. 418 of 2024
[2025] 2 S.C.R.
1973
Jitender @ Kalla v. State (Govt of NCT of Delhi) & Ors.
Appearances for Parties
Dr. S. Muralidhar, Amicus Curiae/Sr. Adv., Prateek K Chadha,
Ms. Ninni Susan Thomas, Ma Karthik, Maitreya Subramaniam,
Ms. Pallak Bhagat, Sreekar Aechuri, Ms. Surbhi Soni, Aniket
Chauhaan
Advs. for the Appellant:
Vinay Navare, Sr. Adv., L.N. Rao, Aryan Rajpal, Shivek Vyas,
Shri Bhagwan, Vikash Kumar Goswami, Ashish Pandey, Prem
Malhotra, Jaydip Pati.
Advs. for the Respondents:
Tushar Mehta, Solicitor General, Suryaprakash V Raju,
Mrs. Aishwarya Bhati, A.S.Gs., Mohan V Katarki, Sr. Adv., Mukesh
Kumar Maroria, Chitransh Sharma, Annam Venkatesh, Jagdish
Chandra Solanki, Zoheb Hussain, Ms. Soumya Tandon, Vivek
Gurnani, Chitvan Singhal, Mrs. Astha Singh, Ms. Shagun Thakur,
Prashant Bhushan, Pranav Sachdeva, Jatin Bhardwaj, Abhay Nair,
Rohit Ram, Paras Nath Singh, Shaileshwar Yadav, Rohit Kumar,
Ms. Bhumika Choksey, Shailendra Singh, Ms. Radhika Mahopatra,
Antariksh Singh, Anilendra Pandey, Varun Thakur, Hemant Kumar
Chaturvedi, Rajeev Kumar Ranjan, Ms. Priya Kashyap, Vipin
Nair, Mohd Aman Alam, Mrs. M.B.Ramya, Aditya Narendranath,
Mrs. Madhavi Yadav, Ahanthem Henry, Ahanthem Rohen Singh,
Mohan Singh, Aniket Rajput, Ms. Khoisnam Nirmala Devi, Kumar
Mihir, Vipin Nair, President, SCAORA, Amit Sharma, Vice-President,
SCAORA, Nikhil Jain, Secretary, SCAORA.
Ms. Indira Jaising, Petitioner-in-person/Sr. Adv.
Judgment / Order of the Supreme Court
Order
Abhay S. Oka, J.
CRIMINAL APPEAL @ S.L.P. (Crl) No.4299 of 2024
1.
Leave granted.
2.
Very important issues arise in the appeal. The first issue is about the
conduct of the advocate-on-record who filed the Special Leave Petition
(for short, 'SLP') out of which the present appeal arises. The second
1974
[2025] 2 S.C.R.
Supreme Court Reports
issue concerns the conduct of the advocate who appeared in this
case as a counsel and was later designated as a senior advocate.
Two consequential issues arise. The first consequential issue is about
the need to formulate a code of conduct for the advocates-on-record.
The second one is whether the decisions of this Court in the case
of Indira Jaising v Supreme Court of India1 (hereafter referred to
as 'Indira Jaising-I') and Indira Singh v Supreme Court of India2
(hereafter referred as 'Indira Jaising-II') need reconsideration. The
question of taking action against the appellant for making false
statements will be considered in a separate IA on which a notice
has been issued.
FACTUAL ASPECTS
3.
First, we are setting out a few factual aspects. The trial court convicted
the appellant for the offences punishable under Sections 302 and 307
of the Indian Penal Code (for short, 'the IPC') by the judgment dated
1st July 2013. He was sentenced to undergo rigorous imprisonment
for life with a direction that his case for a grant of remission shall
not be considered until he undergoes a sentence of thirty years.
The appellant preferred an appeal before the High Court. While
confirming the conviction, the High Court was of the view that the
punishment imposed on the appellant was excessive and modified
the same by removing the cap of thirty years. The appellant was let
off on a sentence of 16 years, 10 months already undergone. By the
judgment dated 25th October 2018, in Jitendra @ Kalla v. State of
Govt. of NCT of Delhi3, this Court interfered with the view taken by
the High Court and restored the order of sentence of the trial court.
This Court held that the appellant's sentence shall be thirty years
of rigorous imprisonment and that the appellant shall have no right
to seek remission till he completes the full sentence of thirty years.
4.
The present appeal was filed to challenge the judgment dated 8th
January 2024 passed by the Delhi High Court in a petition filed by
one Rani, who was sentenced to undergo life imprisonment in an
unconnected case. The petitioner therein applied for premature
release. As the application was not considered, a prayer was made in
1
(2017) 9 SCC 766
2
(2023) 8 SCC 1
3
(2019) 13 SCC 691
[2025] 2 S.C.R.
1975
Jitender @ Kalla v. State (Govt of NCT of Delhi) & Ors.
the Writ Petition before the High Court seeking a writ of mandamus,
directing the 1st respondent - State Government, to consider her
case for premature release under the Government Policy dated 16th
July 2004. A copy of the order dated 30th June 2023 was placed on
record by which the prayer of the petitioner in the said writ petition
before the High Court was rejected by the State Government. The
High Court, while setting aside the order dated 30th June 2023,
directed reconsideration of the petitioner-Rani's case and granted
her time of two months to surrender.
5.
Though the present appellant was not a party to the petition in which
the impugned order was passed, strangely, he challenged the said
order. It is an admitted position that while filing the SLP, which is the
subject matter of this criminal appeal, the appellant did not disclose
that he was directed to undergo imprisonment for thirty years without
remission. Therefore, this Court proceeded on the footing that it was
a case of a simple life sentence.
6.
On 19th March 2024, Shri Rishi Malhotra, advocate, and Shri Jaydip
Pati, advocate-on-record, appeared. Along with the present appeal,
other SLPs were listed. Therefore, there was a common order
passed directing notice to be issued returnable on 19th April 2024.
In the meanwhile, since the present appellant was on furlough, an
exemption was granted to the present appellant from surrendering.
The order dated 19th March 2024 reads thus:
"Applications seeking exemption from filing a certified copy
of the impugned order are allowed. Applications seeking
permission to file the Special Leave Petitions are allowed.
Issue notice, returnable on 19th April, 2024.
Liberty is granted to serve the Standing Counsel for the
respondent-State, in addition.
To be heard along with SLP (Crl.) No.3497/2024 (@ Diary
No.9321/2024).
In the meantime, as the petitioners are on furlough, we
grant exemption to them from surrendering."
7.
We may note here that on 29th April 2024, IA No.105306 of 2024
and IA No.104520 of 2024 were filed for intervention and recall of
1976
[2025] 2 S.C.R.
Supreme Court Reports
the order dated 19th March 2024, respectively. The applications
were made by the 1st informant in the case. In the application, it
was pointed out that there was suppression of material facts about
the fixed-term sentence of thirty years imposed on the appellant.
Another fact pointed out was that the appellant had not approached
the High Court and he had directly approached the Supreme Court
by purportedly challenging the order passed in a writ petition filed
by some other accused. After the said applications were served
on the appellant, on 9th May 2024, the advocate-on-record for
the appellant mentioned the case at 10.30 a.m. and prayed for
permission to withdraw the SLP. He had not intimated the advocate
for the applicant that the matter would be mentioned for withdrawal.
Therefore, while disposing of all the interim applications, this Court
permitted the withdrawal of the SLP with liberty to the appellant to
file appropriate proceedings before the High Court. Order dated 9th
May 2024 reads thus:
"SLP [CRL.] NO.4299/2024
Taken on Board. Heard learned counsel appearing for
the petitioner.
The learned counsel appearing for the petitioner is not
aware whether the application made by the petitioner
for grant of permanent remission has been rejected. The
remedy of the petitioner is to file appropriate proceedings
before the High Court. Hence, we dispose of this Special
Leave Petition by granting liberty to the petitioner to file
appropriate proceedings before the High Court.
If the petitioner is already released on furlough and he
has not yet surrendered, we grant time of three weeks to
the petitioner to surrender, which will enable him to file
appropriate proceedings before the High Court.
Applications for impleadment as well as for intervention
are disposed of.
Pending applications stand disposed of accordingly."
8.
The fact that the application for intervention was pending was not
brought to the notice of this Court. Therefore, the advocate for the
applicant mentioned the matter on 17th May 2024 and pointed out
[2025] 2 S.C.R.
1977
Jitender @ Kalla v. State (Govt of NCT of Delhi) & Ors.
that without notice to him or his client, Miscellaneous Application No.
986 of 2024 was mentioned in the morning session and that this
Court permitted the petitioner to withdraw the SLP out of which the
appeal arises. Therefore, notice was issued on the said application
to the appellant. By order dated 17th May 2024, the order permitting
withdrawal of SLP was stayed.
9.
On 11th July 2024, though this SLP was called out on two occasions,
none appeared for the petitioner. This Court passed an order directing
that the Registry shall issue an intimation to the advocate-on-record,
calling upon the advocate-on-record to remain present on the next
date. On 14th August 2024, Miscellaneous Application No.986 of 2024
seeking impleadment of the complainant as a party respondent was
allowed. This Court allowed IA No.104520 of 2024 seeking recall of
the order dated 19th March 2024 to the extent of prayer in clause (a).
This Court noted that the petitioner in the writ petition had already
surrendered. Thereafter, an order was passed on 2nd September
2024, which reads thus:
"We have perused the Special Leave Petition and the
annexures to the Application for Intervention.
The Trial Court convicted the petitioner and sentenced him
to undergo actual sentence of 30 years. The High Court
interfered with the said order. Thereafter, this Court by a
decision in Jitendra Alias Kalla vs. State (Government of
NCT of Delhi)1 restored the judgment of the Trial Court by
specifically observing that the petitioner will undergo life
sentence for 30 years without remission. These facts were
suppressed while filing this Special Leave Petition.
Moreover, the petitioner was not a party to the petition
before the Delhi High Court on which the impugned
order was passed. In the synopsis, there is a specific
reference to an order of conviction. However, it is not
disclosed that the order of sentence was for a fixed
term of 30 years. Therefore, this is a very serious
and gross case of material misrepresentation made
while filing the Special Leave Petition. The Advocateon-Record for the petitioner, who filed this Special
Leave Petition, owes an explanation to this Court.
Therefore, the Registry to issue notice to Shri Jaydip
1978
[2025] 2 S.C.R.
Supreme Court Reports
Pati, Advocate-on-Record, which is made returnable
on 30th September, 2024.
A copy of this order shall accompany the notice.
Shri Jaydip Pati, Advocate-on-Record, will explain his
conduct by filing an affidavit."
(emphasis added)
10. Pursuant to the order, Shri Jaydip Pati, advocate-on-record, filed an
affidavit dated 9th September 2024. After considering the said affidavit
on 30th September 2024, this Court passed the following order:
"Mr. Jaydip Pati, Advocate-on-Record has filed an affidavit
pursuant to order passed by this Court. To say the least,
the contents are shocking. We will elaborately deal with
the stand taken by him at an appropriate stage. In view
of what is stated in the affidavit, we issue notice to Shri
Rishi Malhotra, learned Senior Advocate to appear before
this Court for explaining what is stated in the affidavit filed
by Mr. Jaydip Pati, Advocate-on-Record.
Registry to forward copies of all orders passed in the
SLP/M.A. along with a copy of affidavit filed by Mr. Jaydip
Pati, Advocate-on-Record to Mr. Rishi Malhotra, learned
Senior Advocate. Notice made returnable on 21st October,
2024.
Considering what is stated in the affidavit by Mr. Jaydip
Pati, Advocate-on-Record and considering the fact
that in recent past, this Court has noticed that at least
in half a dozen cases blatant false statements were
being made in the writ petitions and Special Leave
Petitions filed seeking relief of premature release, we
will require assistance of the President of the Supreme
Court Advocates-on-Record Association (SCAORA). We
request the President, SCAORA to appear and assist
the Court on the next date of hearing. Copies of all the
orders passed by this Court and a copy of affidavit of
Mr. Jaydip Pati, Advocate-on-Record be forwarded to
the President of SCAORA."
[2025] 2 S.C.R.
1979
Jitender @ Kalla v. State (Govt of NCT of Delhi) & Ors.
11. In terms of the said order, Shri Rishi Malhotra, advocate (who was
designated as a senior advocate on 14th August 2024), filed an
affidavit dated 18th October 2024. The order dated 21st October
2024 reads thus:
"We have perused the affidavit of Mr. Rishi Malhotra, the
learned senior counsel. Ms. Meenakshi Arora, the learned
senior counsel representing him states that a better affidavit
will be filed.
We permit Mr. Rishi Malhotra, the learned senior counsel
to withdraw his affidavit and to file a better affidavit.
This case raises issues of great concern, insofar as the
responsibility of Advocates-on Record of this Court is
concerned. Apart from the dispute between a senior and
his junior, as is reflected from the affidavits filed on record,
the issue of concern is of the conduct of the Advocate-onRecord, especially in the light of explanation (a) to Rule
10 of Order IV of the Supreme Court Rules, 2013. A very
important role has been assigned to Advocates-on-Record,
as no litigant can seek redressal of his grievance before
this Court without engaging an Advocate-on-Record. It is,
therefore, necessary to consider of framing guidelines for
the conduct of the Advocates-on-Record.
The learned President of the Supreme Court Advocateson-Record Association and the other Office Bearers are
present and they have agreed to assist the Court on this
aspect.
For assisting the Court for framing the guidelines, we
appoint Dr. S. Murlidhar, senior advocate as Amicus Curiae.
It will be open for him to appoint an Advocate-on-Record
of his choice to assist him.
Copies of the entire proceedings including the affidavits on
record shall be forwarded to the learned Amicus Curiae.
It will be appropriate if the Office Bearers of the Supreme
Court Advocates-on-Record Association interact with the
learned Amicus Curiae so that they will be able to come
out with agreed guidelines.
List on 11th November, 2024."
1980
[2025] 2 S.C.R.
Supreme Court Reports
Thereafter, another affidavit dated 30th November 2024 was filed by
Shri Rishi Malhotra tendering an unconditional apology.
12. Orders passed from time to time by this Court will show that the
following aspects need consideration:
a)
The role played by Shri Jaydip Pati, advocate-on-record;
b)
The role played by Shri Rishi Malhotra, senior advocate; and,
c)
The role of the appellant.
As far as the role of the appellant is concerned, we may note here
that IA No.259649 of 2024 has been filed by an intervener for initiating
proceedings under Section 340 of the Code of Criminal Procedure,
1973 (for short, 'CrPC') on which notice has been issued on 20th
January 2025 and the said application has been de-tagged. Therefore,
the issue of the conduct of the appellant will be examined when we
consider the said application.
13. The conduct of the advocate-on-record gives rise to the issue
regarding the duties and obligations of advocates-on-record and
guidelines for their conduct. On this aspect, we have heard Dr S
Murlidhar, learned senior counsel appearing as amicus curiae, Shri
Vipin Nair, President of the Supreme Court Advocates-on-Record
Association (for short, 'SCAORA') and Vice-President and Secretary
Shri Amit Sharma and Shri Nikhil Jain respectively. We have also
heard Shri Tushar Mehta, learned Solicitor General of India and
lastly, Shri Vinay Navare, senior advocate representing Shri Rishi
Malhotra, senior advocate.
14. The second aspect about the conduct of Shri Rishi Malhotra, senior
advocate, gives rise to a contention raised by Shri Tushar Mehta,
learned Solicitor General of India, appearing for Union of India, for
reconsideration of earlier decisions of this Court in Indira Jaising-I1
and Indira Jaisingh-II2 and another decision in the case of Amar
Vivek Aggarwal v. High Court of Punjab & Haryana and Ors.4 On
these issues raised by the learned Solicitor General of India, we have
also heard Ms. Indira Jaising, a senior advocate who has intervened.
4
(2022) 7 SCC 439
[2025] 2 S.C.R.
1981
Jitender @ Kalla v. State (Govt of NCT of Delhi) & Ors.
CONDUCT OF THE ADVOCATE ON RECORD AND HIS SENIOR
15. Firstly, we will deal with the issue of the conduct of the advocate-onrecord for the appellant and the consequential question of issuing
guidelines on the conduct of advocates-on-record. Before we do that,
we must consider the stand taken by Shri Jaydip Pati, advocate-onrecord, in his affidavit dated 9th September 2024, filed in compliance
with the order of this Court dated 2nd September 2024. The stand taken
in the affidavit by Shri Jaydip Pati can be summarised as follows:
a)
Shri Rishi Malhotra, the then advocate-on-record drafted eight
SLPs including the present SLP, and he asked Shri Jaydip Pati
to sign on those petitions as an advocate-on-record;
b)
Shri Jaydip Pati never doubted the bona fides of Shri Rishi
Malhotra. As he was working with Shri Rishi Malhotra as his
junior, he could not refuse to sign the petitions and vakalatnama
as an advocate-on-record;
c)
Only after this Court issued a notice he learnt that the chamber
of Shri Rishi Malhotra, while drafting the present petition,
concealed the fact that this Court, in the case of Jitendra @
Kalla3, had restored the fixed-term sentence of the appellant
herein, for thirty years; and,
d)
He never imagined that Shri Rishi Malhotra, in his capacity as
a chamber senior, would exploit the situation by filing cases
through him while concealing material facts.
Thus, Shri Jaydip Pati stated that he filed the SLP drafted by Shri
Rishi Malhotra as an advocate-on-record without even bothering to
read the same.
16. Shri Rishi Malhotra filed an affidavit dated 18th October 2024, raising
the following contentions:
a)
This Court appointed him as an amicus curiae in two cases in
which the issue of permanent remission of convicts was involved;
b)
He must have filed cases on behalf of more than two hundred
convicts seeking their premature release;
c)
Due to increased workload and paucity of time, he shared his
workload with different chamber juniors, including Shri Jaydip
Pati and Shri Utkarsh Singh;
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d)
He gave certain cases to Shri Jaydip Pati to file for the purpose
of giving him financial benefit, and accordingly, he must have
drafted at least nine cases which were filed before this Court;
e)
There is no complaint made by Shri Jaydip Pati regarding other
cases which were given to him and he has not stated that he
signed those petitions without checking the contents;
f)
Shri Jaydip Pati filed the cases given to him as per client's
instructions, and the drafts of the SLPs made by Shri Pati were
neither shown to him, nor discussed with him;
g)
Coming to know about other cases filed by him where convicts
had not fulfilled the eligibility criteria for premature release, he
himself filed applications seeking withdrawal of such applications
with an unconditional apology as an assurance that he would
be extra careful in future matters; and,
h)
The recent turn of events has affected his mental health and
has brought a lot of humiliation and embarrassment to him;
therefore, he has stopped taking any new remission cases.
17. Shri Rishi Malhotra then filed an application, which was affirmed on
30th November 2024, seeking permission to withdraw his earlier
affidavit dated 14th November 2024. In this application, he has made
a turnaround and has entirely changed his earlier stand. After he
was permitted to withdraw the affidavit dated 14th November 2024,
Shri Rishi Malhotra filed a fresh affidavit dated 30th November 2024.
In the said affidavit, Shri Rishi Malhotra has claimed that he is a
fourth-generation lawyer. What he stated in the affidavit can be
summarised as follows:
a)
He tendered an unconditional apology to this Court by accepting
that he should have verified the SLP drafted by his chamber
colleague to ensure that there were no incorrect statements. It
was his moral and professional duty to oversee the work of his
chamber juniors, and he was negligent in that behalf;
b)
Wherever he had made wrong statements regarding the eligibility
of the convicts to get a premature release, he has withdrawn
all those petitions by tendering an apology;
c)
He claimed that such misrepresentation by some of the Delhi
convicts has occurred for the first time in his entire legal career
for which he expressed regret and tendered an apology; and,
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Jitender @ Kalla v. State (Govt of NCT of Delhi) & Ors.
d)
He stated that he had tendered an unconditional apology for
stating incorrect facts in the petitions. He assured the Court
that such incidents would not be repeated in the future.
18. Shri Rishi Malhotra has accepted that he should have verified the
facts stated in the SLP filed by Shri Jaydip Pati. He has accepted
that he was not diligent and has tendered an apology. He admitted
that he has made factually incorrect statements in the petitions filed
by him concerning the grant of remission, and after realising it, he
has withdrawn the petitions.
DUTY OF AN ADVOCATE-ON-RECORD
19. It is necessary to examine the legal provisions. Firstly, we will deal
with the provisions of the Advocates Act, 1961 (for short, 'the 1961
Act'). Under Section 16, there are two classes of advocates, namely,
senior advocates and other advocates. Sections 29 and 30 are also
important, which read thus:
"29. Advocates to be the only recognised class
of persons entitled to practise law.-Subject to the
provisions of this Act and any rules made thereunder,
there shall, as from the appointed day, be only one class of
persons entitled to practise the profession of law, namely,
advocates.
30. Right of advocates to practise.-Subject to the
provisions of this Act, every advocate whose name is
entered in the [State roll] shall be entitled as of right
to practise throughout the territories to which this Act
extends,-
(i) in all courts including the Supreme Court;
(ii) before any tribunal or person legally authorised to take
evidence; and
(iii) before any other authority or person before whom
such advocate is by or under any law for the time being
in force entitled to practise."
Thus, every advocate within the meaning of the 1961 Act is entitled
to practice in all courts throughout the territories to which the 1961
Act extends, including this Court. An exception has been carved
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out to Section 30 under the Supreme Court Rules, 2013 (for short,
'the 2013 Rules'), framed by this Court in the exercise of powers
under Article 145 of the Constitution of India, with the approval of
the President of India. Order IV thereof deals with advocates. Rule
1 of Order IV carves out an exception. Rule 1 reads thus:
"1. (a) Subject to the provisions of these rules an advocate
whose name is entered on the roll of any State Bar Council
maintained under the Advocates Act, 1961 (25 of 1961)
as amended shall be entitled to appear before the Court:
Provided that an advocate whose name is entered on
the roll of any State Bar Council maintained under the
Advocates Act, 1961 (25 of 1961), for less than one year,
shall be entitled to mention matters in Court for the limited
purpose of asking for time, date, adjournment and similar
such orders, but shall not be entitled to address the Court
for the purpose of any effective hearing:
Provided further that the Court may, if it thinks desirable
to do so for any reason, permit any person to appear and
address the Court in a particular case.
(b) No advocate other than the Advocate-on-record
for a party shall appear, plead and address the Court
in a matter unless he is instructed by the advocateon-record or permitted by the Court.
(c) In petitions/appeals received from jail or a matter
filed by a party-in-person or where a party-in-person as
respondent is not represented by an Advocate-on-Record,
the Secretary General/Registrar may require the Supreme
Court Legal Services Committee to assign an Advocate,
who may assist the Court on behalf of such person:
Provided that whenever a party wants to appear and argue
the case in person, he/she shall first file an application
along with the petition seeking permission to appear and
argue in person. The application shall indicate reasons
as to why he/she cannot engage an Advocate and wants
to appear and argue in person, and if he is willing to
accept an Advocate, who can be appointed for him by
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Jitender @ Kalla v. State (Govt of NCT of Delhi) & Ors.
the Court. Such application shall, in the first instance, be
placed before the concerned Registrar to interact with the
party-in-person and give opinion by way of office report
whether the party-in-person will be able to give necessary
assistance to the Court for proper disposal of the matter
or an Advocate may be appointed as Amicus Curiae:
Provided further that whenever an advocate whose name
is entered on the rolls of any State Bar Council maintained
under the Advocates Act, 1961 (25 of 1961) wants to appear
and argue the case in person, he shall be exempted from
the requirement of interaction by the concerned Registrar.
If the application is allowed by the Court then only the
party-in-person will be permitted to appear and argue the
case in person."
(emphasis added)
Therefore, as far as this Court is concerned, an advocate other
than an advocate-on-record for a party is entitled to appear, plead
or address a case only if he is instructed by an advocate-on-record.
Rule 5 of Order IV lays down the qualifications of an advocate to
be registered as an advocate-on-record. Rules 7 and 10 of Order
IV are again relevant, which read thus:
"7. (a) An advocate-on-record shall, on his filing a
memorandum of appearance on behalf of a party
accompanied by a vakalatnama duly executed by the
party, be entitled-
(i) to act as well as to plead for the party in the matter and
to conduct and prosecute before the Court all proceedings
that may be taken in respect of the said matter or any
application connected with the same or any decree or
order passed therein including proceedings in taxation
and applications for review; and
(ii) to deposit and receive money on behalf of the said party.
(b)(i) Where the vakalatnama is executed in the presence
of the Advocate-on-Record, he shall certify that it was
executed in his presence.
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(ii) Where the Advocate-on-Record merely accepts
the vakalatnama which is already duly executed in the
presence of a Notary or an advocate, he shall make an
endorsement thereon that he has satisfied himself about
the due execution of the vakalatnama.
(c) No advocate other than an advocate-on-record shall be
entitled to file an appearance or act for a party in the Court.
(d) Every advocate-on-record shall keep such books of
account as may be necessary to show and distinguish in
connection with his practice as an advocate-on-record-
(i) moneys received from or on account of and the moneys
paid to or on account of each of his clients; and
(ii) the moneys received and the moneys paid on his own
account.
(e) Every advocate-on-record shall, before taxation of
the Bill of Costs, file with the Taxing Officer a certificate
showing the amount of fee paid to him or agreed to be
paid to him by his client.
10. When, on the complaint of any person or otherwise,
the Court is of the opinion that an advocate-onrecord has been guilty of misconduct or of conduct
unbecoming of an advocate-on-record, the Court may
make an order removing his name from the register of
advocates on record either permanently or for such
period as the Court may think fit and the Registrar
shall thereupon report the said fact to the Bar Council
of India and to State Bar Council concerned:
Provided that the Court shall, before making such order,
issue to such advocate-on-record a summons returnable
before the Court or before a Special Bench to be constituted
by the Chief Justice, requiring the advocate-on-record to
show cause against the matters alleged in the summons,
and the summons shall, if practicable, be served personally
upon him with copies of any affidavit or statement before
the Court at the time of the issue of the summons.
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Jitender @ Kalla v. State (Govt of NCT of Delhi) & Ors.
Explanation.-For the purpose of these rules,
misconduct or conduct unbecoming of an advocateon-record shall include-
(a) mere name lending by an advocate-on-record
without any further participation in the proceedings
of the case;
(b) absence of the advocate-on-record from the Court
without any justifiable cause when the case is taken up
for hearing; and
(c) failure to submit appearance slip duly signed by the
advocate-on-record of actual appearances in the Court."
(emphasis added)
20. An occasion for an advocate-on-record to file a memorandum
of appearance accompanied by a vakalatnama, arises when he
files a case in this Court or when he appears for a respondent or
opponent in any case. If a vakalatnama is not duly executed before
the advocate-on-record but executed in the presence of a notary
or another advocate, the advocate-on-record must, before filing the
vakalatnama, make an endorsement thereon that he has satisfied
himself about the due execution of the vakalatnama. Therefore, if
someone else hands over the vakalatnama to an advocate-on-record,
the requirement of making an endorsement, as provided in clause
(a)(ii) of Rule 7, is mandatory. This endorsement cannot be made
blindly but must be based on due verification and confirmation.
This responsibility is put on the advocates-on-record to uphold the
integrity of the process.
21. Clauses (b) and (c) of the Explanation to Rule 10 have not been
brought into force as yet, but clause (a) of the Explanation has been
brought into force. It clearly prohibits advocates-on-record from
merely lending their name without any further participation in the
proceedings of the case. Thus, if an advocate-on-record indulges
in name lending, it amounts to misconduct or conduct unbecoming
of an advocate-on-record. The prohibition on name lending is not
confined to the period after the filing of a case or the post-filing of
an appearance for a party; it is applicable even before the case is
actually filed. We have elaborated upon it in the subsequent part
of this judgment.
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22. This Court is the final Court in our country. For the purposes of
maintaining the sanctity of this Court and for ensuring that cases are
properly conducted, only advocates-on-record are entitled to file a
case or a vakalatnama for a party.