Changing of lawyer without NOC under section 419 and 420
A case has been registered against my brother by the police under the section 419/420 and was sent to the police custody since last 1 month
Initially an advocate was arranged by police to council my brother''s case and my brother was asked to sign on that wakalat nama.the bail petition was rejected has been rejected by lower court(caused not known) now the bail application lies with session court but the advocate is not attanding the court for argument.So I would like change my brother's council But the advocate denied to give Noc
Request you to please suggest a way forward to get a bail for my brother as it's been a month.
Your quick reply is highly obliged
Asked in Criminal Law from Bangalore, Karnataka
1. An advocate was arranged by the police for your brother. This is news to me. Police does not arrange a lawyer for a person. The concerned accused has the right to engage a lawyer of his own choice. Your brother should have engaged his own lawyer instead of engaging the one which was arranged by the police. The motive of the police to arrange a lawyer for your brother is highly questionable.
2. If your brother has paid the briefing and appearance fee till now to his lawyer the latter is bound to give a NOC.
3. The courts in most parts of the country do not allow another lawyer to be engaged, and rightly so, unless a NOC from the previous lawyer has been obtained. However, your brother may complain to the District Judge that his lawyer is deliberately withholding the NOC in spite of his fee having been paid.
You may clear all his fee and after that he is bound to provide an NOC, if the lawyer is not ready for issue NOC after clearance of Fee then file an application before court where the bail is pending and pray for change the advocate, the court may allow the application and after that you can engage a New LAwyer.
Advocate, New Delhi
The petitioner, i.e., your brother can file an affidavit stating that he would like to change the lawyer due to the reasons (citing the actual reasons) mentioned therein and seek the permission of court to represent his petition seeking bail through another lawyer named therein and can state in it that the NOC from the previous lawyer may be waived since he is not cooperating to endorse the same. This affidavit along with a fresh vakalatnama in favor of the newly engaged lawyer can be submitted before the sessions court by the new lawyer. Please note that the said affidavit and the vakalatnama to be signed by your brother from inside jail and to be a tested by the jailor or superintendent of prison, which the new advocate can obtain by visiting the jail where he is lodged at present.
if the advocate is not appearing and is not ready to give an NOC, you can ask the court to appoint a counsel for you or pass a direction to the advocate to appear for the purpose of giving an NOC. A complaint before the court that the lawyer is not giving the NOC deliberately would suffice.