Additional District and Sessions Judge, Faridabad, Y S Rathore, the judge hearing the Junaid Khan murder case, in an interim order dated October 25th has accused Additional Advocate General (AAG), Haryana, Naveen Kaushik of assisting the counsel of the prime accused Naresh Kumar in the cross-examination of the prosecution witnesses. This amounts to professional misconduct since Additional advocate generals are barred from participating in cases where the State Government is the party.
According to a news report in the Indian Express, Judge Rathore stated that the AAG was seen suggesting questions to be put to the witnesses at the hearings of October 24th and 25th. The prosecution witnesses were being cross-examined at these hearings. Judge Rathore has stated that such action of assisting the defence counsel “amounts to professional misconduct and is against legal ethics and highly unbecoming of an advocate, particularly because he is a law officer in the office of Advocate General, Haryana”.
Article 165(2) of the Constitution of India provides, “It shall be the duty of the Advocate-General to give advice to the Government of the State upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Governor, and to discharge the functions conferred on him by or under this Constitution or any other law for the time being in force.” Since the Constitution of India provides that the Advocate General is obliged to appear on behalf of the State and perform all functions that the Executive performs, there is a presumption that is raised that in the absence of the Advocate General, the Additional Advocate General is authorized to appear for the State and even carry out such Executive functions. It is clear therefore that in a case where the State Government is the party, it would amount to professional misconduct for an Additional Advocate General to assist the opposing counsel.
According to Judge Rathore, on pointing out to the AAG that he could not be appearing with the defence counsel since he was a law officer of the government, his response was that he was merely observing the proceedings and he subsequently left the court room.
Highlighting the sensitive nature of the case of Junaid, Judge Rathore stated that such conduct by the AAG would create a sense of insecurity among the victim party and adversely affect the aim of the court to conduct free and fair trial. The case at hand was one where a teenage boy Junaid Khan along with his brother and cousins were attacked, and Junaid was killed, on a train going to Ballabhgarh, Haryana. It has been alleged to be one of many cases of mob lynching targeting members a minority community, and therefore an issue of volatile nature. (Read related story on mob lynching here.)
Advocate Warisha Farasat, working closely with mob lynching matters, has said, “This is an issue which reveals a wider systemic problem, with regard to the issue of due diligence followed in prosecution of cases. This has been observed time and again in cases of communal violence whereby there procedural flaws made by servants of the State have cost the victims the case. Such State actors become partisan to the crime committed.”
It is therefore essential that in cases of such sensitive nature, an independent party counsel be appointed in the form of a public prosecutor. Under Section 25-A of the Code of Criminal Procedure, 1973, the State Government may establish a Directorate of Prosecution consisting of a Director of Prosecution and as many Deputy Directors of Prosecution as it thinks fit. The function of a public prosecutor relates to a public purpose entrusting him with the responsibility of acting only in the interest of administration of justice.
Baldev Raj Mahajan, Advocate General, Haryana told the Indian Express that he was not aware of the AAG’s involvement in the case and action would be taken if it was brought to his notice that such misconduct had arisen.
Under the Disciplinary Powers of the Bar Council of India, given under Section 36 of The Advocates Act, 1961, the order of the district court identifying the misconduct should be treated as complaint against the Additional Advocate General, Haryana, and must be brought before the disciplinary committee.
 Regional Transport Authority, Jodhpur v. Sita Ram, AIR 1993 Raj 76
 Shrilekha Vidyarthi v. State of U.P., AIR 1991 SC 537(547)