Being An Advocate No Ground To Escape Prosecution For Abetment: Madras HC

Madurai: The Madurai Bench of the Madras High Court has refused to quash criminal proceedings against an advocate accused of abetting an assault, holding that the mere fact that a person is a practising advocate cannot by itself shield him from prosecution, since an advocate, like any other person, may commit an offence depending on his conduct and the circumstances of the case.

Justice Dr. P. Murugan, dismissing a petition filed under Section 482 of the Code of Criminal Procedure, 1973, by K. Backiyaraj, held that the First Information Report and the witness statements on record prima facie disclosed his involvement in instigating the co-accused to assault the second respondent, and that he must face trial in C.C. No. 33 of 2024 pending before the Judicial Magistrate, Devakottai.

According to the prosecution’s case, the second respondent had lodged a complaint alleging that on 24th May 2021, while he was walking along with his wife and two daughters, the accused, at the instigation of the petitioner, formed an unlawful assembly, wrongfully restrained them, abused the complainant, and assaulted him with sticks and a hoe. The background to the incident was a pre-existing civil dispute over ancestral property between the complainant and his brother, one of the co-accused, following which a chargesheet was filed against the petitioner, an advocate, for allegedly abetting the assault under Section 109 IPC, along with substantive offences under Sections 147, 341, 294(b), 323, 506(ii) and 326 IPC.

The petitioner argued that he was in no way connected with the second respondent, that the alleged attack was committed by the complainant’s brother and others, and that the only allegation against him, of abetment, was unsupported by any material showing motive or enmity, having surfaced merely as an afterthought in the witness statements. The State and the second respondent, on the other hand, contended that the FIR itself named the petitioner as having instigated the assault, that his profession as an advocate did not confer any immunity, and that the veracity of the allegations could only be tested through cross-examination at trial.

Examining the FIR and the statements of the complainant and his family members recorded under Section 161(3) Cr.P.C., the Court found that they consistently attributed the instigation of the assault to the petitioner, who was stated to have been present at the scene when the other accused assaulted the complainant. Relying on the definition of abetment under Section 107 IPC and the Supreme Court’s decision in Omprakash & Ors. v. State of Haryana [(2014) 4 SCC 309], the Court held that instigation of another person to commit an act is itself sufficient to constitute abetment, and that the FIR and witness statements, being of eyewitnesses including the victim, carried considerable evidentiary value at the prima facie stage.

The Court held that whether the petitioner in fact harboured any motive or enmity towards the complainant was a matter to be established during trial through cross-examination, and could not be a ground for quashing the proceedings at the threshold. Holding that the materials on record disclosed a prima facie case, the Court dismissed the quash petition, directing the petitioner to face trial, with the connected miscellaneous petitions also closed.

Case Title: K. Backiyaraj vs. The Inspector of Police & Anr., Crl.O.P.(MD) No. 4650 of 2024