Rajinder Singh v. Union of India — 1993 DIGILAW 102 (KER)

Judgment :- 1. Before referring to the question which cropped up for our adjudication, at this stage we consider it appropriate to comment on the conduct of the counsel for the petitioner Shri. Ram Sarup Saini, who had filed this writ petition. The petitioner is the father of Satya Bit Singh Kaushik, who was convicted by Court Martial and is lodged in District Jail, Bareilly (Uttar Pradesh). The challenge in this writ petition is to the order of conviction passed by the Court Martial. Rajinder Singh petitioner claims to be resident of Village Budha Khera Tehsil and District Jind. On that account, he filed the present writ petition in this court, other wise the incident which resulted in the conviction of Satya Bir Singh Kaushik or his trial by the Court Martial and the order of conviction took place beyond the territorial jurisdiction of this court. 2. The case having been adjourned on two dates of hearing, when the counsel for the petitioner was unable to satisfy about the jurisdiction of this court to entertain the writ petition, we requested the Standing Counsel of Union of India to assist us in this matter. He succeeded in securing the help Major V.C. Chaturvanshi, form the Legal, Cell of the Army at Chandimandir of Major V.C. Chaturvanshi appeared before us on Pebruary 9, 1993 and he was posed the question which was incorporated in our order dated Pebruary 9,1993. Today, he has again appeared and has addressed. However, Shri. R.S. Saini, Advocate, though appeared unofficially, did not address arguments. He submitted list of books. We have taken out those books and have studied the same and we are preparing the judgment accordingly. Shri Saini did not address the Court on account of lawyers on being strike. When an Advocate accepts brief of a litigant on acceptance of fees, he is duty bound to conduct the case in Court. He becomes a privileged person who can address the Court under the provisions of the Advocates Act, 1961. Under S.29 and 30 of the Advocates Act such an Advocate engaged by the litigant has a right of audience in the Court in the cause. Lawyers engaged in the cases by intentionally and deliberately absenting from the Court when cases are called are not serving the cause of the litigants, their paymasters. Under S.29 and 30 of the Advocates Act such an Advocate engaged by the litigant has a right of audience in the Court in the cause. Lawyers engaged in the cases by intentionally and deliberately absenting from the Court when cases are called are not serving the cause of the litigants, their paymasters. Appearing in Court and not getting presence recorded and further not arguing the case is still worse and is unprofessional and unethical. Present is such a case where though Shri Saini has come to the Court but does not want to address the Court or to get his presence recorded. What legal sanction the Association of Lawyers has to give call to the Lawyers to go on strike is beyond our comprehension. The fear in the lawyers as is being projected by Mr. Saini, not to argue the case of being punished by the Association for his appearance in Court on account of the call given by the Association to go on strike or in other words to abstain from appearing of the Court, has no legal basis. The functioning of the Court in the matter of administration of justice is not to be regulated or controlled by the Association of lawyers, in the manner of giving calls to its members to go on strike and not appear in courts in their cases which is not legal when such association of lawyers have no arrangement for providing work (judicial work) to its members for their livelihood, how such calls are given for strike by such associations. Purther comments can only be given as and when action of any Association in imposing penalty on a lawyer is challenged in any Court. If the position is examined from a different angle, the result would be alarming. The primary function of the court is to administer justice to and between the parties approaching courts. The courts would be failing in their duties in not performing such a function merely on the ground that lawyers choose to abstain from appearing in courts. The Judges are supposed to train themselves to decide cases by studying the pleas and the law on the subject even if unaided either by the parties or their counsel. The courts would be failing in their duties in not performing such a function merely on the ground that lawyers choose to abstain from appearing in courts. The Judges are supposed to train themselves to decide cases by studying the pleas and the law on the subject even if unaided either by the parties or their counsel. There is no legal impediment in the way of the Court not to administer justice when lawyers abstain from appearing in Court or they appear but refuse to assist the Court in the administration of justice. Code of Civil Procedure contains provisions for proceeding with case where parties fail to appear. What is more unfortunate is that the law officers of the Advocate General, Punjab and Haryana are also not putting in appearance on behalf of the States they represent in cases despite the fact that they are paid government employees. It is unfortunate that the States have not taken any steps to protect their interest by causing appearance of their Law Officers or other officers from the concerned departments on the day their law officers are not appearing. 3. It cannot be assumed that the judges can have paid holidays without working on a day when the members of the Bar choose to abstain from work or refuse to appear in the Courts to protect the interest of their clients. In our opinion the judges cannot treat a day of strike as a paid holiday. They are supposed to work and dispose of the case themselves, even when unaided by lawyers of the parties by going through the records of the cases. They cannot shirk their responsibility and duty of administration of justice by simply showing helplessness. As is said the show must go on, the work in the Courts must go on. 4. Present is such a case where we have gone through the books mentioned in the list provided by Mr. Saini, Advocate, and the case law submitted by Major V.C. Chaturvanshi, from the Legal Cell of the Array, in a way, we are thankful to Mr. Chaturvanshi, for assisting us in the performing of our function. 5. The present writ petition has been filed under Art.226 of the Constitution for quashing the conviction order passed against Satya Bir Singh Kaushik, Ex. Chaturvanshi, for assisting us in the performing of our function. 5. The present writ petition has been filed under Art.226 of the Constitution for quashing the conviction order passed against Satya Bir Singh Kaushik, Ex. Naik, Engine Pitter No.14536387 of 23 Air Op Plight c/o. 56 A.P.O. He was sentenced to Rigorous Imprisonment for four months with effect from December 28, 1992 as per copy of the charge sheet reproduced in the petition. Copy of the order is also reproduced in the petition sending him to civil prison, Bareilly on December 28, 1992. At this stage, it may be noticed that the copies of the impugned order have not been produced along with the writ petition. Only the annexures of the charge sheet and the order to Satya Bir Singh Kaushik, have been reproduced in the writ petition. It is on these premises that it is to be decided as to whether any cause of action or part thereof has arisen within territorial jurisdiction of this court to entertain this writ petition. Art.226 of the Constitution empowers the High Court to issue appropriate writs, directions or orders. Art.226(2) of the Constitution of India, which is relevant for consideration is reproduced: "The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories." A bare perusal of the provision of Art.226(2), would show that High Court could entertain the writ petition if cause of action wholly or in part arises within its territorial jurisdiction. The case of the petitioner as projected in the writ petition is the order of conviction made by the Court Martial, can be challenged in any High Court, within whose jurisdiction Satya Bir Singh Kaushik or his father is residing. The broad proposition projected as above, cannot be accepted if general principles with respect to territorial jurisdiction as contained in the Code of Civil Procedure are taken into consideration. It is not plaintiff's residence that gives cause of action for entertainment of a suit. The broad proposition projected as above, cannot be accepted if general principles with respect to territorial jurisdiction as contained in the Code of Civil Procedure are taken into consideration. It is not plaintiff's residence that gives cause of action for entertainment of a suit. Simply because Satya Bir Singh Kaushik or his father are residents of a village in District Jind, will not clothe this Court with jurisdiction to entertain this writ petition. The challenge in the writ petition is to the order of conviction and the order of conviction is based on set or circumstances involving incidents. Since neither of such incident took place within the territorial jurisdiction of this Court nor Satya Bir Singh Kaushik was tried or convicted by the Court Martial within the territorial jurisdiction of this court, the present writ petition cannot be entertained. Mr. Chaturvanshi, referred to the decision of Allahabad High Court reported as G.B. Singh v. Union of India (1973 Crl.L.J. 485). That was a case where Court Martial was convened at Nagpur against delinquent for the misconduct alleged to have been committed by him at Kanpur. The Allahabad High Court in these facts was held to have jurisdiction to entertain the writ petition. Since the cause of action had accrued within the jurisdiction of Allahabad High Court, the writ petition was entertained. 6. The other case referred to by Major Chaturvanshi is of this court in Gurdeep Kaur v. Union of India (1990 (2) Rec.Cr.R.20). The Single Judge of this Court dismissed the petition for want of jurisdiction observing as under: "No part of the prejudicial activity which may have taken place in any area under the jurisdiction of this Court has been mentioned in the grounds Annexure P-4. Simply because the detenu is a resident of Mohali does not invest this Court with any jurisdiction. It is not disputed that criminal cases for violation of various Acts are registered at Ahmedabad and they are being proceeded with." 7. A brief reference be now made to the judgments which have been mentioned by Mr.Saini, Advocate in the list of books submitted. S.N. Mukherjee v. Union of India (1990 (2) RSJ 808), Ex-Hawaldar Yadvinder Nath Sharma v. The Union of India (1987 (2) Rec. Cr.R. 248), Union of India v. Naik Subedar Baleshwar Ram (AIR 1990 SC 65), and Suresh Chand Mehra v. The Defence Secretary (U.O.I.) (1990 (1) SLR 187). S.N. Mukherjee v. Union of India (1990 (2) RSJ 808), Ex-Hawaldar Yadvinder Nath Sharma v. The Union of India (1987 (2) Rec. Cr.R. 248), Union of India v. Naik Subedar Baleshwar Ram (AIR 1990 SC 65), and Suresh Chand Mehra v. The Defence Secretary (U.O.I.) (1990 (1) SLR 187). In none of the cases referred to above the question of jurisdiction arises or decided. Ratio of the decisions aforesaid, therefore, is not applicable to the case in hand. No further comment is necessary. 8. Lastly reference was made to a copy of the order passed in Civil Writ Petition No.14953 of 1990, Satbir Singh Kaushik v. Union of India (CWP.No.14953 of 1990), decided on January 15,1992, by this Court. A direction was sought under Art.226 and 227 of the Constitution calling upon Union of India and Military Authorities to re-instate rank of Naik to the petitioner of which he was deprived illegally and the case came up before the same Bench. Learned counsel for the petitioner stated that the rank had been restored but consequential relief were not granted. The Bench observed that the petitioner would be at liberty to make a representation for consequential reliefs which the respondents would decide expeditiously preferably within six months from the date of its submission. Thus the writ petition was disposed of. Prom the nature of the order as noticed above it cannot be said that any decision on merit was given by the Court. Such an order is hardly helpful in deciding the question of jurisdiction debated. 9. Por the reasons recorded above, this writ petition cannot be entertained in this Court and is therefore, dismissed.