The NOC by earlier counsel not mandatory in criminal case principle has been clearly reaffirmed by the Allahabad High Court while allowing a second bail application of a woman convict lodged for more than thirteen years.
The Court ruled that insisting upon a No Objection Certificate from a previous advocate is only a matter of professional propriety and not a legal requirement, particularly where the personal liberty of an accused or convict is at stake.
The decision was rendered by a Division Bench of Justice Abdhesh Kumar Chaudhary and Justice Rajesh Singh Chauhan of the Allahabad High Court, Lucknow Bench, while dealing with a second bail application filed during the pendency of a criminal appeal.
NOC by Earlier Counsel Not Mandatory in Criminal Case: What the Court Held
Reiterating that the NOC by earlier counsel not mandatory in criminal case, the High Court observed that the Code of Criminal Procedure does not prescribe any provision making a vakalatnama or NOC compulsory for moving a bail application.
The essential requirement is that the accused must be represented by a duly authorised advocate of their choice.
The Bench held that while courts may follow the practice of seeking authorisation to avoid professional conflicts, such practice cannot override the fundamental rights guaranteed under Article 21 and Article 22(1) of the Constitution of India.
The accused has an unfettered right to change counsel, especially in criminal proceedings involving life and liberty.
Case Background
The appellant, a woman convict, was found guilty under Sections 498-A and 304-B of the Indian Penal Code along with Sections 3 and 4 of the Dowry Prohibition Act. She was awarded life imprisonment. Her first bail application had earlier been rejected.
Subsequently, a second bail application was filed through another advocate, supported by a fresh vakalatnama executed by the appellant and duly attested by jail authorities. The earlier counsel refused to issue an NOC, raising an objection regarding maintainability.
Right to Counsel of Choice Overrides Procedural Formalities
Emphasising that NOC by earlier counsel not mandatory in criminal case, the Bench clarified that neither the CrPC nor settled law makes such consent a condition precedent.
The Court relied upon constitutional safeguards and statutory provisions such as Sections 303 and 41-D CrPC, which reinforce the right of an accused or convict to be defended by an advocate of choice.
The Court further clarified that an NGO or third party cannot independently intervene in criminal proceedings without express authorisation of the accused.
However, legal aid organisations may facilitate representation through panel advocates in deserving cases, in line with Articles 21 and 39-A of the Constitution and Section 304 CrPC.
Bail Granted on Merits
After addressing the objection regarding representation, the Court proceeded to consider the second bail application on merits.
It noted that the appellant is a woman, had already undergone incarceration for about thirteen years including remission, and that the conviction was based on a statutory presumption under Section 113-B of the Evidence Act.
There was no direct or eyewitness evidence linking her to the alleged offence.
Taking these aspects into account, and recording the undertaking that the appeal would be argued on merits, the Court allowed the bail application.
The appellant was directed to be released on bail subject to furnishing a personal bond and compliance with conditions imposed by the trial court.
Case Details
- Case Title: Smt. Manorama Shukla v. State of Uttar Pradesh
- Case Number: Criminal Appeal No. 1283 of 2021
- Court: Allahabad High Court, Lucknow Bench
- Bench: Justice Abdhesh Kumar Chaudhary and Justice Rajesh Singh Chauhan
- Appellant Counsel: Advocates Chandra Shekhar Singh Yad and Jyoti Rajpoot
- Respondent Counsel: Government Advocate
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