• Correct format to inform the AHC about procedural aspects of the proceedings

A petition under BNSS 528 has been filed before the Allahabad High Court by one of the accused persons seeking quashing of the chargesheet submitted by the police. My brother is the informant in this matter. Upon receiving notice, my brother initially filed a counter affidavit(InPerson) and later engaged a counsel to represent him before the court.

We had clearly informed the counsel that the trial court magistrate had passed an order directing further investigation, which is still pending. We also conveyed that my brother is fully satisfied with the counter affidavit he filed in person and wishes to rely solely on that affidavit. In his counter affidavit, my brother has explicitly mentioned that further investigation is pending and has annexed the magistrate’s order directing such investigation.

 However, during the most recent hearing, my brother’s counsel erroneously submitted before the Court that “re-investigation is pending” and sought time to file a counter affidavit. Consequently, the High Court’s order sheet records that “re-investigation is pending” and that time has been granted for filing the counter affidavit. In light of this incorrect submission and its recording in the order, we have lost confidence in the counsel.

Queries:

Now, my brother wishes to inform the court that:

(a) he is satisfied with the counter affidavit already filed in person and intends to proceed on that basis;
(b) he seeks to withdraw his counsel; and
(c) Even though it is mentioned in the counter affidavit that further investigation is ongoing and the further investigation order is annexed in it,my counsel made an error by stating “re-investigation is pending” instead of “further investigation is pending.”

Query1:My brother is considering how to place these points before the court—whether he should do it orally during a court hearing or through a written filing?

Query2: If in writing, he is unsure of the appropriate format, i.e., whether it should be filed as an affidavit in person, a supplementary affidavit in person, or a supplementary counter affidavit in person? Because all the above listed points(a,b,c) which my brother wants to inform the court are procedural things so he is not sure if supplementary counter affidavit is the correct way to do filing or not?. He prefers to proceed in person for the time being, as he will require time to engage a new counsel.
Asked 21 hours ago in Criminal Law
Religion: Hindu

First answer received in 10 minutes.

Lawyers are available now to answer your questions.

8 Answers

You should not rely only on oral submissions before the Court. Oral clarification may not always be properly recorded, and since an incorrect statement has already been reflected in the order sheet, it is important to place the correct position on record through a written filing.

The appropriate course of action is to file a supplementary counter affidavit in person. This is suitable because a counter affidavit has already been filed, and you are only supplementing and clarifying that affidavit rather than replacing it. The issue arises from the same proceedings and factual background, so a supplementary counter affidavit is procedurally correct.

In this filing, your brother should clearly state that he has already filed a counter affidavit in person and continues to rely on it fully. He should also mention that no further counter affidavit is required from his side. It should then be clarified that the statement recorded in the order sheet regarding “re-investigation” is incorrect and appears to have been made due to an inadvertent error. The correct position should be stated clearly, namely that “further investigation” pursuant to the Magistrate’s order is pending, and that this fact has already been mentioned and supported by documents in the earlier counter affidavit.

The language used should remain neutral and respectful, without making allegations against the counsel, and should simply indicate that the earlier submission was made under a mistaken understanding. Your brother should also state that he wishes to withdraw the vakalatnama of the existing counsel and intends to appear in person for the time being.

A prayer may be included requesting the Court to take the supplementary affidavit on record, to treat the earlier counter affidavit as final, and to note the correct position regarding further investigation.

On the next date of hearing, your brother should mention that a supplementary counter affidavit has been filed in person and request that it be taken on record, while briefly clarifying the correction. This ensures that both the written record and oral clarification are aligned.

It is also important to note that the distinction between “further investigation” and “re-investigation” is legally significant, and correcting it at this stage is the correct approach.

Yuganshu Sharma
Advocate, Delhi
1323 Answers
5 Consultations

It is better to place this in writing, not merely orally. Since a counter affidavit is already on record, your brother should file a short supplementary counter affidavit in person stating that he relies on his earlier in-person counter affidavit, wishes to discharge the present counsel and appear in person for now, and that the correct position is further investigation, not re-investigation. Under the Allahabad High Court Rules, material facts are normally brought before the Court through an application/affidavit by the person having knowledge of those facts.

On the next date, he may also orally mention that this written clarification has been filed and request the Court to read the record accordingly.

Saurabh Agrawal
Advocate, Greater Noida
102 Answers

If you do not want to continue with the present counsel then you may issue a notice to him informing about the termination of vakaltnama given to him and file the copy of the notice before high court during the next hearing and also file a memo before high court that you have already filed the counter  affidavit that you r advocate had erroneously represented and sought time for filing counter affidavit  which is not maintainable at this stage and express that you are ready to submit your version or arguments as party in person, the high court may hear the same day or it may post the matter to some other day.  . 

2. If you do not want to file additional counter then you can inform the court that there is no additional counter to be filed.

In fact you may not be permitted to file additional counter affidavit without any valid reason because there was n o development after you filed the original counter affidavit i.e., the case is in the same stage hence without leave of court or without any direction by court instructing you to file additional counter affidavit, if any, you canot file an additional counter affidavit. 

Since you have already appeared as party in person and no as you have terminated the vakalatnama given to a counsel, you can continue to appear as party ion person in further proceedings. 

T Kalaiselvan
Advocate, Vellore
90537 Answers
2522 Consultations

It should be in writing with affidavit 

Prashant Nayak
Advocate, Mumbai
34932 Answers
255 Consultations

He should appear in person (if he has not engaged a new lawyer) and inform the court that he is taking over the representation. He should reiterate his satisfaction with the first affidavit and state that the second filing is intended only to correct the record and remove the previous couns

2)To correct the record and withdraw the counsel in the Allahabad High Court, your brother should immediately file a written Application for Withdrawal of Counsel along with a Supplementary Affidavit in Person. This approach formalizes the correction, ensures the "further investigation" status is documented, and allows him to rely solely on his initial affidavit. 

Ajay Sethi
Advocate, Mumbai
100333 Answers
8199 Consultations

According to Allahabad High Court practice, to file additional documents or facts via a Supplementary Affidavit/Supplementary Counter Affidavit, you must file an accompanying Interlocutory Application (IA) or a "prayer clause" asking the court to "take the same on record"

2)Filing such an affidavit without leave (prior permission) can lead to the document being rejected as it undermines procedural discipline.

Ajay Sethi
Advocate, Mumbai
100333 Answers
8199 Consultations

You can file an affidavit after seeking permission from court 

Prashant Nayak
Advocate, Mumbai
34932 Answers
255 Consultations

In my opinion you have no reason to file a counter affidavit that too under the given circumstances. Since you are going to appear as party in person and that you have already filed a counter affidavit as party in person,  it is suggested that you file a memo before high court intimating your decision to terminate the services of the advocate and request court to continue the case as party in person and you can additionally state that you have already filed counter affidavit. 

The court will record your memo and pass suitable orders. 

T Kalaiselvan
Advocate, Vellore
90537 Answers
2522 Consultations

Ask a Lawyer

Get legal answers from lawyers in 1 hour. It's quick, easy, and anonymous!
  Ask a lawyer