MP High Court Discharges Advocate Accused of Fraud for Appearing as Counsel for Co-Accused Son

The Madhya Pradesh High Court held that an advocate appearing as counsel for a co-accused does not commit fraud upon the court, and that Section 340 CrPC cannot trigger cognizance of offences under Section 417 IPC.

A Division Bench of the High Court of Madhya Pradesh at Jabalpur, comprising Chief Justice Sanjeev Sachdeva and Justice Vinay Saraf, has discharged advocate Suresh Prasad Khare from a criminal proceeding initiated by the High Court itself. The proceeding arose after Khare appeared as counsel for his son, a co-accused in the same FIR, in a quashing petition before a Single Judge. The bench found that Section 340 of the Code of Criminal Procedure cannot be used to set in motion a complaint for an offence under Section 417 of the Indian Penal Code, because that provision falls entirely outside the scope of Section 195 CrPC. The bench also held that no fraud upon the court was made out on the facts, and set aside the Magistrate's order rejecting the discharge application.

The FIR, the Quashing Petitions, and the Advocate's Appearance

FIR bearing Crime No. 203/2017 was registered at Police Station Jatara, District Tikamgarh, for offences under Section 420 read with Section 34 of the Indian Penal Code. The complaint was made by one Shailesh Kumar against Rupesh Khare, the son of the petitioner. Suresh Prasad Khare, a practising advocate, was subsequently added as a co-accused in the same case.

Khare filed MCRC No. 43017/2018 before the High Court seeking quashing of the FIR. A learned Single Judge dismissed that petition on 19.03.2020, recording that a prima facie cognizable offence was made out and investigation was still incomplete. That dismissal was upheld by the Supreme Court.

Separately, Rupesh Khare filed MCRC No. 2457/2019 under Section 482 CrPC for quashing of the same FIR, raising grounds including territorial jurisdiction. When that petition came up for hearing on 27.04.2022, Suresh Prasad Khare appeared as counsel for his son Rupesh Khare and argued the matter.

The Single Judge, on hearing the parties, recorded that Khare was liable to be issued a show-cause notice for committing fraud with the court. The basis was that Khare, himself a co-accused, had appeared as counsel without disclosing that his own earlier quashing petition had already been dismissed. The Single Judge granted time to Khare to justify his appearance.

The Show-Cause Notice, Complaint, and Cognizance

On the next date, 05.05.2022, Khare did not appear. His junior informed the court he was indisposed. The Single Judge then took up the question of maintainability of MCRC No. 2457/2019. The State raised an objection that the petition was not maintainable because a common petition filed on behalf of both co-accused, MCRC No. 10385/2017, had earlier been withdrawn with liberty to file afresh by order dated 28.09.2018, and the petition filed by Khare himself had already been dismissed.

The Single Judge dismissed MCRC No. 2457/2019 as not maintainable. Going further, the Single Judge held that Khare's conduct amounted to malpractice and fraud upon the court, and directed the Principal Registrar (Judicial) to issue a show-cause notice to Khare as to why proceedings under Section 340 CrPC should not be initiated. The Single Judge also directed the State Bar Council to take appropriate action under Section 35 of the Advocates Act, 1961.

The Principal Registrar issued a show-cause notice on 09.05.2022. After receiving Khare's reply dated 24.05.2022, the Principal Registrar filed a complaint under Section 200 CrPC against Khare for the offence punishable under Section 417 IPC on behalf of the High Court of Madhya Pradesh before the Chief Judicial Magistrate, Jabalpur. The Magistrate took cognizance and issued summons by order dated 25.11.2022.

Khare furnished bail and moved an application under Section 227 CrPC read with Section 340 CrPC for discharge. The Magistrate dismissed that application by order dated 23.09.2025. That order was challenged before the Division Bench in Criminal Revision No. 5561 of 2025.

The Legal Issues Before the Division Bench

Two distinct questions arose. First, whether Section 340 CrPC could be used to initiate a complaint for an offence under Section 417 IPC at all. Second, whether the conduct of Khare, appearing as counsel for his co-accused son without disclosing the dismissal of his own earlier petition, amounted to fraud upon the court.

On the first question, Khare's counsel argued that Section 340 CrPC provides the procedure for cases mentioned in Section 195 CrPC, and that Section 195 CrPC covers only specific categories of offences: contempt of lawful authority of public servants (Sections 172 to 188 IPC), offences against public justice (Sections 193 to 196, 199, 200, 205 to 211, and 228 IPC), and offences relating to documents given in evidence (Sections 463, 471, 475, and 476 IPC). Sections 417 and 420 IPC, which deal with cheating, are not among them.

Reliance was placed on the Constitution Bench judgment in Iqbal Singh Marwah and Anr. v. Meenakshi Marwah and Anr. (2005) 4 SCC 370, where the Supreme Court examined the scheme of Section 195 CrPC and held that prosecution for an offence enumerated therein requires the offence to relate to contempt of lawful authority of public servants, offences against public justice, or offences relating to documents given in evidence.

On the fraud question, Khare's counsel relied on Sasikala Pushpa v. The State of Tamil Nadu (2019) 6 SCC 477, where the Supreme Court held that fraud implies intentional deception aimed at achieving some wrongful gain or causing wrongful loss or injury to another, and that mens rea is an essential ingredient. Counsel also argued that Rule 13 of the Bar Council of India Rules, which prohibits an advocate from appearing in a case where he has reason to believe he will be a witness, does not prohibit a co-accused from appearing as counsel for another co-accused.

The High Court itself, as respondent, opposed the revision. Its counsel submitted that Khare was aware that his own quashing petition had been dismissed and that the Supreme Court had not interfered with that dismissal. It was argued that a co-accused cannot appear on behalf of another co-accused as a lawyer, and that Khare's failure to disclose these facts to the court amounted to fraud.

How the Bench Reasoned

The bench addressed the Section 195 CrPC point squarely. It read Section 195(1) CrPC and confirmed that it applies to offences under Sections 172 to 188 IPC and Sections 193 to 196, 199, 200, 205 to 211, and 228 IPC when committed in relation to proceedings in court. The bench held that Section 195 CrPC has no applicability to Sections 417 or 420 IPC. On that basis, it found that the Magistrate had committed an error in taking cognizance of an offence under Section 417 IPC on the basis of a complaint filed under Section 340 CrPC.

On the allegation of suppression, the bench examined the chronology carefully. MCRC No. 2457/2019 was filed on 14.01.2019. MCRC No. 43017/2018, which was Khare's own petition, was dismissed only on 19.03.2020, more than a year after the son's petition was filed. The bench held that there was no question of Khare suppressing the dismissal of his own petition at the time the son's petition was filed, because that dismissal had not yet occurred.

The bench also noted that MCRC No. 43017/2018 was filed on behalf of Suresh Prasad Khare, while MCRC No. 2457/2019 was filed on behalf of Rupesh Khare. The allegation of suppression of the earlier dismissal was therefore, in the bench's view, misplaced.

On the question of appearing as counsel for a co-accused, the bench examined Rule 13 of the Bar Council of India Rules. That rule, placed under Chapter II, Section II “Duty to the Client,” prohibits an advocate from accepting a brief in a case where he has reason to believe he will be a witness on a material question of fact. The bench held that this rule does not prohibit a co-accused from appearing as counsel. It declined to accept that appearing on behalf of a co-accused in the capacity of counsel amounted to fraud upon the court.

The bench drew on Amarsang Nathaji v. Hardik Harshadbhai Patel (2017) 1 SCC 117, where the Supreme Court held that a contradictory statement in a judicial proceeding is not by itself sufficient to justify prosecution under Sections 199 and 200 IPC. It must be shown that a false statement was given or evidence fabricated with the intention of using it in judicial proceedings. Even then, the court must form an opinion that initiating an inquiry is expedient in the interests of justice, having regard to the overall factual matrix and probable consequences of prosecution.

Applying Sasikala Pushpa, the bench reiterated that mens rea is an essential ingredient of fraud. On the facts, it found no intentional deception aimed at wrongful gain or wrongful loss.

The bench also took note of a significant development: the State Bar Council had already dropped proceedings against Khare at the threshold by order dated 26.02.2023, holding that prima facie no case was made out to proceed further as the matter was not covered under Section 35 of the Advocates Act, 1961.

Outcome

The Division Bench held that no offence of cheating was made out against Khare, who had appeared as counsel for his co-accused son in a quashing petition. It set aside the impugned order dated 23.09.2025 passed by the Judicial Magistrate First Class, Jabalpur in RCT No. 9808/2022, which had dismissed the application for discharge under Section 227 CrPC. The criminal proceedings pending against Khare in RCT No. 9808/2022 were quashed. The revision petition was allowed. No order as to costs was made.