Wednesday, 30 April 2014

Whether any “Arzi”, “Farzi”, half- baked lawyer can be treated “proxy counsel”?


  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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