In such a chaotic situation, any “Arzi”, “Farzi”, half-
baked lawyer under the label of “proxy counsel”, a phrase not traceable
under the Advocates Act, 1961 or under the Supreme Court Rules, 1966
etc., cannot be allowed to abuse and misuse the process of the court
under a false impression that he has a right to waste public time
without any authority to appear in the court, either from the litigant
or from the AOR, as in the instant case. The AOR, with impunity was
disdainful towards the order of this Court directing him to appear in
the court. He had also not filed any appearance for the counsel who
had appeared, nor the said counsel disclosed his name. The Court takes
serious note of the conduct of the AOR, Shri Manu Shanker Mishra and
warns him to behave in an appropriate manner befitting the conduct of
an advocate and an AOR otherwise this Court will not hesitate to take
action against him. His conduct will be under close watch of this
Court.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRL.) No.9967 OF 2011
Sanjay Kumar … Petitioner
Versus
The State of Bihar & Anr.
…Respondents
Dated; JANUARY 28, 2014.
1. This special leave petition has been filed against the impugned
judgment and order dated 22.7.2011, passed by the High Court of
Judicature at Patna in Criminal Misc. No.13116 of 2009 quashing the
criminal proceedings against the respondent no.2 while allowing the
application under Section 482 of the Code of Criminal Procedure, 1973
(hereinafter referred to as ‘Cr.P.C.’).
2. Facts and circumstances giving rise to this petition are that:
A. The petitioner claimed to have been appointed by the private
respondent no.2 in a fake dental college as a Senior Lecturer for a
period of one year and issued 12 post dated cheques for payment of his
salary out of which 9 cheques had bounced. The complainant-petitioner
sent legal notice to the respondent no.2 but without giving them
sufficient time to file a reply, filed a complaint before the
Magistrate at Danapur, Patna under Sections 34, 403, 404, 406, 408,
418, 420 and 504 of the Indian Penal Code, 1860 (hereinafter referred
to as ‘IPC’) and under Section 138 of Negotiable Instrument Act, 1881
(hereinafter referred to as ‘NI Act’).
B. Learned Magistrate, Danapur vide an order dated 12.5.2008
summoned the private respondent for appearance on 12.6.2008, being
prima facie of the view that a case under Sections 406, 420 IPC and
under Section 138 of NI Act was made out by the petitioner. The
private respondent challenged the said order by filing the petition
before the High Court which has been allowed vide impugned judgment and
order on various grounds, inter-alia that there was an agreement
between the parties for service for one year and one of the conditions
in the agreement was that the petitioner would not resign from the
institute till the completion of 3 years. More so, the petitioner did
not even give sufficient time to the accused to respond to the legal
notice as he filed the complaint within the close proximity of the date
of the notice. The High Court also concluded that there was nothing on
record to show that the notice had ever been served upon the private
respondent and ultimately allowed the said petition on the ground that
it was a case of civil nature as it was a matter of recovery of salary.
C. Aggrieved, the petitioner approached this Court making the
averment in the petition that accused persons had been running a fake
institution and offered the appointment to the petitioner on certain
terms and in spite of working therein, he was not paid the salary.
Hence, this petition.
3. In the instant case the counsel appearing in the court for the
petitioner designated himself merely has a proxy counsel. The Advocate-
on-record (for short ‘AOR’) had no courtesy to send, at least, a slip
mentioning the name of the counsel who has to appear in the court.
Thus, in such a fact-situation, we had no advantage even to know the
name of the counsel who was appearing in the court.
4. Earlier, this Court had issued notice to the petitioner himself
to show cause that in case it was a fake institution, what was the
reason or rationale for the petitioner to join the same and to continue
to serve there for one year. In reply to the said show cause notice,
the petitioner submitted that such pleadings be ignored and may not be
taken into account for the purpose of disposal of the instant petition.
We do not see any reason to allow a party to make a pleading in the
petition and then make a submission to the court to ignore it as such
an issue has no bearing on the merits of the case being totally
irrelevant. Pleadings have to be true to the knowledge of the parties
and in case a person takes such misleading pleadings, he can be refused
not only any kind of indulgence by the court but can also be tried for
perjury. In case, the pleading taken by the petitioner is true, he
cannot ask for ignoring the same. In case, it is false and as such
statement had been made on oath, he is liable to be tried for perjury.
More so, whether such a pleading is relevant or not is a matter to be
decided by the court and under Section 165 of the Indian Evidence Act,
1872, court has a right to ask the party even relevant or irrelevant
questions and the parties or their counsel cannot raise any objection
to any such question.
5. In such a fact-situation, words fail us to condemn the audacity
of the petitioner to tell the highest court of the land to ignore the
pleadings taken by him.
Be that as it may, this Court had insisted at the time of first
round of hearing of this case that AOR, Shri Manu Shanker Mishra should
remain present in the Court at the time of arguments and also passed
over the matter for his appearance. In the second round, it was
informed to us that the AOR refused to come to the court. We take a
very serious note of the conduct of this AOR, particularly, in view of
the judgment of this Court In Re: Rameshwar Prasad Goyal, (2014) 1 SCC
572, wherein this Court has categorically held that in case the AOR
does not appear in the court, his conduct may tantamount to criminal
contempt of the court. In fact, a very few AsOR have spoiled the
working system of the institution of AsOR who simply lend their
signatures for petty amount. The AOR involved herein is living in a
fool’s paradise if he thinks that he can play hide and seek with any
court of law.
In such a chaotic situation, any “Arzi”, “Farzi”, half-
baked lawyer under the label of “proxy counsel”, a phrase not traceable
under the Advocates Act, 1961 or under the Supreme Court Rules, 1966
etc., cannot be allowed to abuse and misuse the process of the court
under a false impression that he has a right to waste public time
without any authority to appear in the court, either from the litigant
or from the AOR, as in the instant case. The AOR, with impunity was
disdainful towards the order of this Court directing him to appear in
the court. He had also not filed any appearance for the counsel who
had appeared, nor the said counsel disclosed his name. The Court takes
serious note of the conduct of the AOR, Shri Manu Shanker Mishra and
warns him to behave in an appropriate manner befitting the conduct of
an advocate and an AOR otherwise this Court will not hesitate to take
action against him. His conduct will be under close watch of this
Court.
6. With the aforesaid observations, the petition stands dismissed.
…………......................J.
(Dr. B.S. CHAUHAN)
……….........................J.
(J. CHELAMESWAR)
……….........................J.
(M.Y. EQBAL)
NEW DELHI
JANUARY 28, 2014.
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