Vakaalatnama

Jainodin shaikh (Querist) 02 February 2009 This query is : Resolved
(1) Whethe accused person can apoint a new lawyer without obtaing N.O.C. from his previously apointed lawyer?
(2) Is it necessary to obtain N.O.C. before filing new Vakaalatnama in a criminal matter?
(3) Can a lawyer defend the accused in criminal matter without filing Vakaalatnama?
(4) under which provisions of law?
(5) Is there any caselaw to clear this point?

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sanjeev murthy desai Online

(Expert) 02 February 2009
Generally when a pleader who has filed a vakalatnama for a party wishes to withdraw his appearance, he shall serve a written notice of his intention to do so on his client at least seven days in advance of the case coming up for hearing before the court. Leave of the court to withdraw appearance may also be applied for if the client has instructed the pleader to that effect. The pleader shall file a note in writing requesting the court for permission to withdraw appearance and shall also file along with the Note the letter of the client instructing him to withdraw his appearnce or a copy of the intimation given to the client as above together with his written acknowledgment by the client . The court, if it is satisfied that no inconvenience is likely to be caused to the court or the client, may permit , may permit the pleader to withdraw his appearance and while permitting the pleader to do so may also impose such terms and conditions as it may deem proper either in public interest or in the interest of the parties.

Under advocates act 1961 the court has may give permission to the lawyer defend accused.

sanjeev desai

Jainodin shaikh (Querist) 02 February 2009
Thanks for the replay Mr. Desai!
But my questions are relating to FILING OF A FRESH VAKAALATNAMA and not regarding Withdrawl of vakaalatnama.

Murali Krishna (Expert) 02 February 2009
As far as my knowledge goes, it is not necessary to have a no objection from a previous lawyer for appointing another lawyer, though, the previous lawyer has a right to claim his professional fees from the client for the work he had done. - See Sec 302 of CrPC.

Vakalatnama is only a power to represent the person. Hence it is a must for any lawyer to represent accused. However, under S.301 of CrPC, PP or APP can do so.

Jainodin shaikh (Querist) 03 February 2009
Thanks Mr. Murali! If a.p.p. is empower to represent the State by filing appearance pursis then on the basis of equality; other lawyers also can represent the accused by filing appearance pursis instead of formal vakaalatnama. In other words; vakaalatnama has no importance in criminal matter. I am expecting more explaination on this point.

arunprakaash.m. (Expert) 03 February 2009
earlier lawyer has to give noc to appoint or plead other lawyer in all cases.

Uma parameswaran (Expert) 03 February 2009
A vakaalatnama is filed in the name of a Advocate and later decide to change the Advocate with obtaining NOC is good and safe for the Lawyer and the both Advocates ( the previous and the later)

Sushil Kumar Bhatia (Expert) 03 February 2009
A litigant has no faith in his advocate and he wants to engage some other advocate he should take this plea before the court that he has no faith in his lawyer and he wants to engage other lawyer he can engage other lawyer and instead of vakalatnama ,memorandum of appearence can be filed by other lawyer

A. A. JOSE (Expert) 03 February 2009
Although it is always proper to obtain NOC from the previous Lawyer, it is not a mandatory requirement. The party can very well engage any other lawyer and the court can be apprised of the same.

M. PIRAVI PERUMAL (Expert) 05 February 2009
Vakalathnama is not required just Memo of Appearance is enough. It is not mandatory to obtain NOC, but in practice to avoid practical difficulties the procedure of NOC is being followed.

Murali Krishna (Expert) 05 February 2009
I would like to differ with Sushil kumar Bhatia and Piravi Perumal.

Memo of appearence can be filed by a pleader/advocate appearing on behalf of a public servant representing ogvernment or a government advocate. It is not a vakalatnama.

CPC order 3 rule 4 deals with appointment of pleader. -- This applies all except government

Various states made amendments to the rule by exempting pleaders of govt from filing vakalatnama but filing memo of appearence.

I feel that the same rules are applicable even in case of a criminal matter . Mr.Jainodin shaikh may appreciate this.

Jainodin shaikh (Querist) 05 February 2009
Thank you Mr. Murali!
But Discrimination betwee a private lawyer and a government lawyer is not digestive.
There is no provision in Cr.P.C. Regarding filing of vakaalatnama by any of the party in criminal matter.
Some more discussion is expected on this point.

PALNITKAR V.V. (Expert) 05 February 2009
Rules made by the Bar council of india require that noc should be obtained.But the court may in its discrition permit filing of vakalatnama without NOC. Followng is the extract:
39. An advocate shall not enter appearance in any case
in which there is already a vakalat or memo of
appearance filed by an advocate engaged for a party
except with his consent; in case such consent is not
produced he shall apply to the Court stating reasons why
the said consent could not be produced and he shall
appear only after obtaining the permission of the
Court.

Jainodin shaikh (Querist) 05 February 2009
Thank you Mr. Palnitkar! Your answer is very clear!! Thaks again!!!

Bindu (Expert) 20 February 2009
THe opinions suggested make me not clear, what will be proper as in my case

I am also facing the said problem in matters section 138 of NI Act as the earlier advocate is not appearing in courts for the complaianant, neither giving NOC

Jainodin shaikh (Querist) 21 February 2009
You can obtain Permission of the Court to file fresh Vakaalatnama: You should have mention the reasons for why you can not obtain the required NOC i.e. Previous advocate is refusing to give NOC or he is not available etc.
The court has to allow you to file new vakaalatnama because Court has no power to refuse the same.

A. A. JOSE (Expert) 21 February 2009
Yes, it is a general problem. Previous Advocates normally refuses to give NOC, but the client can give vakaalatnam toanother advocate who should seek permission of the court to appear in view of the background and generally courts are generous in this regard.