Introduction
The Hon’ble Allahabad High Court in Samarpan Jain v. State of U.P. & 2 others Criminal Misc. Writ Petition No. 23443 of 2025 dated 21.05.2026 quashed the FIR, charge sheet, and the order of cognizance initiated against an Advocate for being criminally accused for merely filing a statutory appeal before the GST authorities and crediting the pre-deposit amount in his client’s Electronic Credit Ledger. The Division Bench of the Hon’ble Allahabad High Court ruled that criminal prosecution of an advocate for the actions performed by him in the exercise of his professional duties is violative of all principles of criminal law and attacks his basic rights under Article 14 & 21 of the Constitution of India.
Factual Background
Samarpan Jain (hereinafter known as “Petitioner”) is an Advocate enrolled at the Bar Council of U.P., practicing in indirect taxes, direct taxes, and corporate laws. The said Petitioner had been approached by Mohd. Haris, Proprietor of M/s M H Enterprises, Rampur (hereinafter known as “Assessee”) for filing statutory appeals under Section 107 of the GST Act, 2017, in regard to the assessment orders issued by the Deputy Commissioner, GST, Sector-1, Rampur under Section 74 of the State GST Act, 2017. The demands issued to the Assessee were to the tune of around Rs. 10.52 crores.
The statutory appeal in question was lodged by the Petitioner through online means to the Appellate Authority-3 on 15.08.2025 along with all necessary documentation in respect of the same, via the GST Portal. As regards the pre-deposit of 10% of the amount in dispute, it was achieved in a manner authorized under Circular No. 20001/2/2022-GST dated 06.07.2022 issued by the CBIC. This pre-deposit was achieved through the Assessee’s Electronic Credit Ledger (“ECL”) using Input Tax Credit (“ITC”).
The Appellate Authority-3, Moradabad, however, did not agree with this manner of pre-payment and sent a notice on 23.09.2025 requesting for clarification of maintainability, which resulted in the dismissal of the appeal because the Petitioner could not be present that day due to the late intimation on 23.09.2025.
Rather than taking action against the Assessee for recovery of the dues assessed in any manner prescribed by law, the Deputy Commissioner, GST filed FIR No. 175 of 2025 dated 04.10.2025 at PS Kotwali, Rampur under Sections 61(2), 318(4), 336(3), 338, and 340(2) of Bharatiya Nyaya Sanhita, 2023 (“BNS”) against both the Assessee as well as Petitioner for conspiracy to illegally debit the ECL and thereby causing loss to the State Exchequer. Upon receipt of notice in the present writ petition, the Police filed Charge Sheet No. 30 of 2026 and the Additional Chief Judicial Magistrate, Rampur took cognizance of the case on the same date, that is, 14.05.2026.
Issues before the Hon’ble High Court
- Whether criminal prosecution of an Advocate and making him a conspirator on the sole ground that professional acts done by him as the advocate of a client before an appellate forum have been done?
- Whether raising of a GST statutory appeal and making pre-deposit through ECL based on judicially established legal position amounts to criminal conspiracy on the part of Advocate and his client to avoid tax?
- Whether the FIR, charge-sheet, and cognizance order are liable to be set aside as being contrary to established principles of criminal responsibility and constitutional provisions of Articles 14 & 21?
Contentions of the Parties
The Petitioner contended that each of the acts of the Petitioner was done in his professional capacity. The method of pre-deposit followed was not something invented by the Petitioner but one which has been allowed by a CBIC Circular and even upheld by the Hon’ble Supreme Court of India in the case of Yasho Industries Ltd. v. Union of India, (2024) 24 Centax 338 (Guj.). Even if the Petitioner’s legal analysis is proved to be incorrect, wrong professional opinion does not make the Advocate a co-conspirator accused of committing a crime. There was no evidence on the record to indicate that the Petitioner was a partner in the business of the Assessee or that he had any personal interest other than his professional engagement.
Decision and Findings
The Division Bench struck down the FIR, the charge sheet, and the cognizance order in their totality as far as they pertained to the Petitioner.
The Hon’ble Court noted that the above-stated FIR, police report, and cognizance order contravened all principles of criminal responsibility. An Advocate, due to his professional nature, must be permitted to practice law on behalf of clients of all sorts, even those accused of crimes of utmost severity, without any form of fear. To hold the Advocate criminally responsible for his actions of filing a statutory appeal in behalf of his client, would be tantamount to saying “the end of the very existence of the Bar and the right of an Advocate to practice under the Advocates Act.” This would also amount to a denial of citizens of the fundamental right to receive legal representation because it would mean that every Advocate was busy defending himself prior to filing the vakalatnama.
On the allegation of conspiracy, it was observed by the Hon’ble Court that despite the mistake made in reducing the ECL amount due to pre-deposit, it was merely a professionally motivated decision, since it was part of the process of making an appeal, and nothing more. It was not linked with any activity carried out by the Assessee.
Furthermore, the Hon’ble Court has also observed unfavourably about the simultaneous filing of the charge-sheet and taking cognizance on the very same day which appears to have been provoked by the notice issued by the Hon’ble High Court. It was ordered by the Hon’ble Court that an entry should be made in red ink in the General Diary of PS Kotwali, Rampur, regarding the dropping of proceedings against the Petitioner.
AMLEGALS Remarks
The decision in Samarpan Jain v. State of U.P. is indeed an important endorsement of the constitutional safeguard available to Advocates through the professional conduct of the latter. While drawing a clear distinction between a professional decision whatever be its nature and criminal conspiracy, the Court rules out the possibility of authorities using criminal law to compel litigants or lawyers to agree on certain terms. The guidance provided in the said case would certainly prove useful to tax experts providing legal opinions on contentious matters in GST. Taxation authorities need to be extremely careful before involving legal counsel in the FIR filed in cases where the said counsel has appeared before them as advocates for the opposite party. In doing so, they need to remember that any abuse of process of the court would not go unnoticed.
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