R. J. LAKHIA v. STATE — 1981 DIGILAW 181 (GUJ)

A. N. SURTI, J. ( 1 ) AT the very outset I must thank Mr. K. J. Shethna who has represented the Bar Council of Gujarat having regard to the peculiar facts and circumstances of the case. ( 2 ) BY the impugned order the learned Additional Sessions Judge Court No. 11 Ahmedabad City directed that the petitioner R. J. Lakhia a practising Advocate should be produced before him by issuing summons to him and he further directed that he should stand his trial together with three accused persons for the commission of the offences of cheating and conspiracy with original accused Nos. 1 2 and 3 of Sessions Case No. 84 of 1981 of the court of the learned City Sessions Judge Ahmedabad. ( 3 ) WHEN this matter was called out for hearing and final disposal I had an anxious look at Mr. A. J. Patel the learned Public Prosecutor who was in-charge of the matter on behalf of the State of Gujarat and I am happy to state that at the very outset of the hearing of this application he made an admirable statement that the impugned order could not be even countenance by him. I may also add at this very stage that it was the attitude of the Bar Council of Gujarat that the impugned order should be set aside. ( 4 ) MR. H. K. Thakore who appeared on behalf of the petitioneradvocate brought to my notice certain few and relevant facts which had given rise to the application which was filed by the learned Public Prosecutor in the Sessions Court and the order thereon. ( 5 ) A few relevant facts may be stated at this stage. ( 6 ) IN the aforesaid Sessions Case it was the prosecution case that one Baijnath had three sons and three daughters and the second daughter Krishnavati is married to one Kanaiyalal who is accused No. 3 in the case. Her husband Kanaiyalal is accused No. 2 in the Sessions case and he is the brother of one Chandrapal Awasam who is accused No. 1 in the said Sessions Case. ( 7 ) IT was alleged by the prosecution that on 26th of December 1980 accused No. 3 Krishnavati had gone to her fathers house in the company of her mother-in-law. After going there accused No. 3s mother-inlaw was well treated and thereafter she gave Rs. ( 7 ) IT was alleged by the prosecution that on 26th of December 1980 accused No. 3 Krishnavati had gone to her fathers house in the company of her mother-in-law. After going there accused No. 3s mother-inlaw was well treated and thereafter she gave Rs. 5. 00 to accused No. 3 to bring some materials from the market. Accused No. 3 was about to start for the purchase of the materials and at that point of time accused No. 3s mother-in-law suggested to her to take Kamla with her. Thereafter Kamla and accused No. 3 had left the house and went at Dr. Godanis Dispensary in Saraspur and according to the prosecution accused Nos. 1 and 2 were there. It was the prosecution case that accused No. 1 was the rickshaw driver. He suggested to accused No. 3 and Kamla to go with him at Mahakali Temple and at that suggestion accused No. 3 and Kamla sat in the rickshaw. ( 8 ) IT may be once again emphasised at this stage that the petitioner-Advocate is a practising Advocate in the courts of Ahmedabad. All the aforesaid three accused persons having sat in the rickshaw came near Gheekanta Road Ahmedabad and stopped the rickshaw near the compound of Criminal Courts. It is further alleged that there accused No. 1 got down and he told accused No. 3 that he was arrested in a prohibition case and if Kamla gave her signature on a writing then he would be released on bail and for that purpose Kamlas presence was necessary. At that time accused No. 3 refused to send Kamla with him but she was persuaded by accused No. 1 and so accused No. 2 and Kamla went in the compound of criminal courts. It may be significantly noticed at this stage that it was not the prosecution case that any of the three accused persons had ever met the petitioner Advocate prior to what had happened on 26/12/1980 till the rickshaw stopped near the compound of Criminal courts. For the first time it is alleged that in the compound of the Criminal court one Advocate of advanced age was present and that a clerk of the Advocate was also present. Besides them there were two other persons present. For the first time it is alleged that in the compound of the Criminal court one Advocate of advanced age was present and that a clerk of the Advocate was also present. Besides them there were two other persons present. It was the prosecution case that the Advocate told Kamla not to be nervous and a representation was made by the Advocate to her that there was a prohibition case against accused No. 1 and that if Kamla could give her thumb mark on a stamp paper then accused No. 1 would be released in the prohibition case. It is also alleged that Kamla tried to get some clarification from the Advocate regarding the writing and the allegation is that the Advocate told Kamla that the persons concerned were her brother-in-law and sister and hence Kamla put her thumb mark on the writing. ( 9 ) THEREAFTER stamp-paper was purchased but it may be again noticed that the stamp paper was not purchased by the Advocate in the name of the Advocate. ( 10 ) FOR the disposal of the present application suffice it to say that it was alleged that Kamla having given her thumb mark on the writing went home and accused Nos. 1 and 2 had gone to a criminal court. After the 4th or 5th day after the thumb mark was taken of Kamla on the stamp-paper some social workers attached to Jyoti Sang had gone to the house of Kamla and they inquired from the parents of Kamla as to why Kamla was not residing with her husband. The said writing was shown to the parents pertaining to the marriage of accused No. 1 with Kamla. ( 11 ) IT was alleged by the prosecution that the writing in regard to the aforesaid marriage had taken place on account of the conspiracy of the petitioner-advocate with the aforesaid three accused persons. It was alleged that Bai Kamla was cheated and the petitioner-advocate had a hand in it. In regard to the aforesaid Sessions Case the necessary F. I. R. was filed on 31/12/1980 at Gomtipur Police Station and the police as a result of the investigation arrested original accused Nos. 1 2 and 3 and after the completion of the usual investigation the necessary charge-sheet was submitted in the court of the learned Magistrate who committed the case to the Court of Sessions. 1 2 and 3 and after the completion of the usual investigation the necessary charge-sheet was submitted in the court of the learned Magistrate who committed the case to the Court of Sessions. Before the learned Sessions Judge original accused Nos. 1 2 and 3 were charged for having committed the offences punishable under secs. 420 366 read with sec. 34 of the Indian Penal Code. In course of the Sessions trial Bai Kamla was examined at Exh. 8 and in examination-in-chief she narrated the circumstances which I have mentioned hereinabove. She also stated in the examination-in-chief that she was taken to the criminal court under the pretext of going to the Mahakali-Temple and accused No. 2 had driven the rickshaw. She also stated that she was also taken by the accused persons to an Advocate. She did refer the aforesaid representation alleged to have been made by the petitioner- advocate for getting her thumb mark on the writing. Bai Kamla was not cross-examined at all. Before Bai Kamla could be cross-examined one Girish Pandya a clerk of the Advocate was examined. It was stated by Bai Kamla that the advocate was an old-man with a black coat and stated that she would be in a position to identify the Advocate. It may be noticed that Girish Pandya clerk of the Advocate stated that he was working in the court where Shri Lakhia the present petitioner was practising and the clerk stated that stamp-paper was purchased by accused Nos. 1 and 2 in the name of Kamla. It may be stated that according to the clerk the draft of the writing was given by R. J. Lakhia and after the thumb mark of Kamla was taken on the writing and thereafter she was allowed to go. The said writing is produced at Exh. 9 The cross-examination of Girish Pandya clerk was also differed. Thus after the incomplete evidence of Bai Kamla as well as the Advocates clerk the said two witnesses were not cross-examined at all. It is at this stage that the learned Public Prosecutor gave an application under sec. 319 of the Criminal Procedure Code to the learned Trial Judge that the petitioner-advocate should be joined as an accused person in the trial which was going on before the learned Sessions Judge. It is at this stage that the learned Public Prosecutor gave an application under sec. 319 of the Criminal Procedure Code to the learned Trial Judge that the petitioner-advocate should be joined as an accused person in the trial which was going on before the learned Sessions Judge. ( 12 ) THE learned Sessions Judge without hearing the petitioner-advocate accepted the application presented to him by the learned Public Prosecutor. The learned Sessions Judge without seeing that the aforesaid two witnesses were not cross-examined accepted the application of the learned Public Prosecutor. The learned Sessions Judge without realising the torture of the petitioner-advocate directed that Advocate Shri Lakhia should be produced before him by issuing a summons not for the purpose of any clarification or for the purpose of any explanation from him but he directed that the petitioner-advocate should stand his trial together with the three accused persons for the offences of cheating and/ or conspiracy with the accused persons. It is under these circumstances that the present criminal revision application is filed in this court. My learned brother N. H. Bhatt J. issued Rule on the revision application on 23/10/1981 and directed that Rule should be made returnable today. My learned brother also directed that there should be interimstay of all further proceedings in the said Sessions Case and that if the case could not be taken upon on 4-11-81 the learned Sessions Judge may go ahead with the cross-examination of Bai Kamla and the clerk. It is under these circumstances that this revision application is placed before me for disposal. ( 13 ) REALISING the importance of the matter and to protect the honour of the members of the legal profession I requested the State Bar Council of Gujarat to place before me its view-point and Mr. K. J. Shethna the learned Advocate placed before me the view-point of the Bar Council of Gujarat in this matter. When the petitioner-Advocate is directed to be in the back along with other three accused persons I am constrained to say that I need hardly emphasise the need of protecting the dignity and honour of any Advocate practising in any Law Court in the State. When the petitioner-Advocate is directed to be in the back along with other three accused persons I am constrained to say that I need hardly emphasise the need of protecting the dignity and honour of any Advocate practising in any Law Court in the State. If Judges shut their eyes to the dignity docorum and self respect of an Advocate why should the Members of legal professions who are the counter-parts of the Administration of Justice at all care for the dignity of the Judges ? May it be realised that in our democratic set up the Judges dignity can never be a one sided traffic and can never be divorced from the dignity of an Advocate The concept of maintaining dignity and decorum of our Law-Courts is essentially based on mutual respect for the Bar and the Bench. Even man to man dignity can only be preserved and maintained by reciprocation and mutual respect. This principle can never be lost sight of by any Judge particularly when for maintaining the respect or dignity of a court of law there is the Contempt of Courts Act for the benefit of any Presiding Judge. ( 14 ) BEARING in mind the aforesaid basic principles for the administration of justice I asked the learned Advocates several questions on the merits of the matter at considerable length and I am happy to state that Mr. A. J. Patel the learned Public Prosecutor very rightly stated that it was not possible for even to countenance the aforesaid impugned order. Mr. R. J. Lakhia the petitioner-Advocate is fairly an old senior Advocate at the Bar. He is aged about 55 years. He has two sons practising legal profession and Mr. Patel the learned Public Prosecutor very rightly stated that it must have been a surprise-day of extreme torture and mental pain to the Advocate when he must have learnt for the first time that he had to face the Sessions-trial alongwith three accused persons for commission of various offences like cheating conspiracy etc. punishable under secs. 420 366 etc. In the present case I fail to understand what could at all be the prima facie case against the petitioner-advocate? Why should a senior Advocate aged 55 years be so demoralised so as to be hand-in-glove with a young girl of about 18 years? punishable under secs. 420 366 etc. In the present case I fail to understand what could at all be the prima facie case against the petitioner-advocate? Why should a senior Advocate aged 55 years be so demoralised so as to be hand-in-glove with a young girl of about 18 years? Why should he see that he is a party to some marriage between Kamla and accused No. 1 ? Is there any evidence worth the name to warrant a conclusion that Bai Kamla had ever met the petitioner-advocate prior to December 1980 and 1 say that there is no such evidence on record. What was the hurry and undue haste on the part of the learned Trial Judge to postpone the cross-examination of the aforesaid two witnesses? Why should the learned Trial Judge not see that the two witnesses were not cross-examined? Was it not the duty of the learned Prosecutor or the learned Trial Judge to request Mr. Lakhia and not to summon Mr. Lakhia to verify as to what he had to say about some passing allegations of a young desperate girl and the concerned clerk. Suffice it to say that having anxiously gone through the application which was presented by the Law Officer and even the contents of the impugned order it is impossible for me even to read between the lines that any prima facie was made out against the petitioner-Advocate for commission of offences punishable under secs. 366 and 420 of the Indian Penal Code. ( 15 ) SURELY by the impugned order which is unjustified even on the merits the prestige and dignity of an Advocate will be affected. His prestige even in his own house will be affected even though no prima facie case is made out against the petitioner-advocate for an offence punishable under sec. 366 of the Indian Penal Code. Such a painful situation could have been avoided by the learned Trial Judge as well as the Law Officer and both should have cared more for the dignity prestige and honour of Mr. Lakhia than their own dignity prestige or honour. This should be the sense of responsibility of any Law Officer and the learned Judge when they discharge their duties. Lakhia than their own dignity prestige or honour. This should be the sense of responsibility of any Law Officer and the learned Judge when they discharge their duties. It has given me considerable pain when I knew that a Senior Advocate was put to the aforesaid mental torture as he was directed to be in the dock along with three refused persons for an offense punishable under sec. 420 read with sec. 366 Under the circumstances I must accept this revision application set aside the imgugned order passed by the learned Trial Judge with a quest to the learned Trial Judge and the learned Law Officer to be more careful hereof when they pass orders against the members of be legal profession. ( 16 ) AS a result of the aforesaid discussion the petition succeeds and the Rule is made absolute. Petition allowed. .