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1993 DIGILAW 189 (RAJ)

Shaitan Singh v. State of Rajasthan

1993-03-23

K.C.AGRAWAL

body1993
Honble AGRAWAL, C.J. - An application under Section 439 Cr.P.C. was filed for grant of bail by Shaitan Singh in a case under Section 302 IPC through Shri M.M. Singhvi, Advocate. Opposing his appearance as an Advocate, Shri S.D. Rajpurohit, counsel for the applicant, contended that as his son is a Judge in the Rajasthan High Court, he was debarred from filing the application and pleading on his behalf in the High Court. He relied on Rule 6 of the Bar Council of India Rules. (2) Rule 6 as published in Gazette dated 21.8.1965, reads as under : "6. He relied on Rule 6 of the Bar Council of India Rules. (2) Rule 6 as published in Gazette dated 21.8.1965, reads as under : "6. An Advocate shall not practise before a Judge sitting alone or a Bench of Judges, if the Judge or any Member of the Bench is related to the Advocate as husband, father, grand-father, son, grand-son, brother, father-in-law, son-in-law, brother-in-law, uncle, nephew, first cousin, wife, mother, daughter, sister, mother-in-law, daughter-in-law, sister-in-law, aunt or niece." The Bar Council of India framed Rules in supersession of the existing Rules by publishing the same in Gazette of India dated 6.9.1975, in which Rule 6 reads as under: "An Advocate shall not practise before a Court, Tribunal or Authority mentioned in Section 30 of the Act, sitting alone or otherwise, if the sole or any member thereof is relating to the Advocate as Husband, father, grand-father, son, grand-son, brother, father-in-law, son-in-law, brother-in-law, uncle, nephew, first cousin, wife, mother, daughter, sister, mother-in-law, daughter-in-law, sister-in-law, aunt, niece." The aforesaid Rule 6 was further amended w.e.f 29.4.1978 which reads as under: "An Advocate shall not enter appearance, act, plead, or practise in any way before a Court or Tribunal or Authority mentioned in Section 30 of the Act, if the sole or any member thereof is related to the Advocate as father, grand-father, son, grand-son, uncle, brother, nephew, first cousin, husband, wife, mother, daughter, sister, aunt, niece, father-in-law, mother-in-law, son- in-law, brother-in-law, daughter-in-law or sister-in-law." By means of resolution No. 11/1991 the following proviso was added to Rule 6: "Resolution No. 11/1991 "Resolved that the following proviso be added to Rule 6 of the Rules in Part VI Chapter II; "For the purposes of this rule, Court shall mean a Court, Bench or Tribunal in which above mentioned relation of the Advocate is a Judge, Member or the Presiding Officer." The learned counsel for the applicant urged that Rule 6 puts a complete bar on an Advocate whose son is a Judge in the Court from accepting appearance on behalf of one of the sides. He contended that the object behind the bar is to secure to all citizens fair justice guaranteed in the Preamble of the Constitution. (3) I am unable to accept the submission of the applicants counsel opposing appearance of Shri M.M. Singhvi. He contended that the object behind the bar is to secure to all citizens fair justice guaranteed in the Preamble of the Constitution. (3) I am unable to accept the submission of the applicants counsel opposing appearance of Shri M.M. Singhvi. Neither the language nor intention nor the context of the rule justifies the interpretation placed by the learned counsel. Interpreting its language, it is not possible to hold that Rule 6 imposed a prohibition on appearance of an Advocate in the High Court in which his relation of the category mentioned in Rule 6, is a Judge. The language employed mean that an Advocate would not appear in a case in which his son or relation is a Judge sitting alone or on Bench. (4) The rule for the construction of an Act of Parliament is that it should be construed according to the intent of the Parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous then no more can be necessary then to expound those words in the natural and ordinary sense. The words themselves alone do, in such a case, best declare the intention of the law giver. If the words of the statute are in themselves precise and unambiguous then no more can be necessary then to expound those words in the natural and ordinary sense. The words themselves alone do, in such a case, best declare the intention of the law giver. (5) In Mitchell vs. Torrup (1), it has been said: "In expounding Act of Parliament where words are express, plain and clear, the words ought to be understood according to their plain and natural signification and import, unless by such exposition a contradiction or inconsistency would arise in the Act by reason of some subsequent clause from when it might be inferred that the intent of Parliament was otherwise." In Becke vs. Smith Parke, B. it has been said: "It is a very useful rule, in the construction of a statute, to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the Legislature, to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified, so as to avoid such inconvenience, but no further." In Grey vs. Pearson (2), it has been said that: "I have been long and deeply impressed with the wisdom of the rule now, I believe, universally adopted, at least in the courts of law in Westminster Hall, that in construing wills and indeed, statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or in-consistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid the absurdity and inconsistency, but no further." (6) From the language of Rule 6, the only reasonable conclusion that is certain and can be drawn is that the relation described in it, is prohibited from appearing as an Advocate in the case which is being tried or being decided by one of the relations of the same. (7) The learned counsel for the applicant laid emphasis on preservation of independence of judiciary which, according to him, can only be achieved by applying the blanket bar on the Advocate, whose relation is a Judge in appearing in the whole of the High Court irrespective as to who is deciding the case. (8) Such an interpretation, to me, appears to be meaningless and to say with respect to submission of the applicant, an absurd. An Act is not to be given a meaning which does not fulfill any object and creates an anomalous situation. (9) In Jones vs. Director of Public Prosecution (3), it has been observed that it is a cardinal principle applicable to all kinds of statutes that one may not for any reason attach to a statutory provision a meaning which the words of that provision cannot reasonably bear. If they are capable of more than one meaning than one can choose between those meanings, but beyond that one must not go. It is plainly a rule in Professor Dworkins sense of the words, the Judge must ask himself what is the natural or ordinary meaning of the word or phrase in question and apply it to the facts of the case unless the result is something which cannot reasonably be supposed to have been intended by the Legislature. A Judge cannot alter the material of which it is woven, but he should iron out he creases. That is what Lord Denning remarked in one of the cases reported in the Seaford case (4). This decision has been followed and accepted by the Judges by laying down that Judges cannot fill in gaps. What the learned counsel for the applicant wanted us to do was to read in Rule 6, which is not coming out from the language employed. The The intention behind Rule 6 is not which submission of the learned in the counsel for the applicant. In Saloman vs. Saloman & Co. Ltd. (5) at p. 38, Lord Watson said: "The intention of the Legislature is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the Legislature probably would have meant, although there has been an omission to enact it. In Saloman vs. Saloman & Co. Ltd. (5) at p. 38, Lord Watson said: "The intention of the Legislature is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the Legislature probably would have meant, although there has been an omission to enact it. In a court of law or equity, what the Legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication." We do not sit here to put the language of the Act to prices and make non-sense of it. It is the duty of the Court to find out the intention. The intention behind Rule 6 was that no Advocate should appear in a case which is being decided by his relation. (10) Next consideration, which could be made in this case is about the proviso added to Rule 6 vide Resolution No. 11/1991. (11) I am clear that the proviso is not to be read as creating a bar which was not previously employed. It is wrong to say that it was an independent enacting clause instead of being dependent on the main enactment. (12) In England and America also the bar is about the appearance of an Attorney or Advocate before his relations. In England, deal with this controversy, it was said at page 73 of the LEGAL ETHICS by Henry S. Drinker, as under: "There is no objection to a Barrister practising in a court where his father is one of several Judges. In such case, it is impossible to know before hand which Judge will in fact try a case. In England, deal with this controversy, it was said at page 73 of the LEGAL ETHICS by Henry S. Drinker, as under: "There is no objection to a Barrister practising in a court where his father is one of several Judges. In such case, it is impossible to know before hand which Judge will in fact try a case. For example, it has never been considered improper for a Barrister to appear before his father in the High Court, or in the Court of Appeals, or in the House of Lords." In America, answering the question in this respect, in Cases and Material on the Legal Profession by Cheatham at page 400 it was observed as under: — "In the opinion of the Committee, the Canons of Judicial Ethics of the American Bar Association condemn the practice referred to, but if there be any doubt as to the interpretation of the Canons, it is the opinion of the Committee that the practice is improper and should be condemned." At page 69 of the Legal Ethics by Henry S. Drinker, it is said that: "It is the duty of the lawyer to maintain towards the Courts a respectful attitude, not for the sake of the temporary incumbent of the judicial office, but for the maintenance of its supreme importance. Judges, not being wholly free to defend themselves, are peculiarly entitled to receive the support of the Bar against unjust criticism and clamor." (13) Much emphasis was laid on the observations of Honble Mr. Justice P.P. Boppanna in Smt. Gangawwa vs. The State of Karnataka & Ors. (6). This is not a decision but only a wish expressed in one of the orders, which did not survive with the observations of the Supreme Court made in the appeal preferred against it. The Supreme Court dismissed the appeal on the ground that as the Judge against whom the observations were made had retired; there is no occasion to decide it. To me, it appears that there is no question of bias or favour which can arise in between the Judge and counsel or other person representing one of the parties. Such a thinking is of a weak mind. This has never been doubted. Appearance of a relation in the Court in which his son is a Judge has never created any doubt in anybodys mind. Such a thinking is of a weak mind. This has never been doubted. Appearance of a relation in the Court in which his son is a Judge has never created any doubt in anybodys mind. This is the fragment of imagination of the opposite party in this case. (14) For the reasons given above, I do not find any merit in this application dated 3.3.1993 filed by Jai Singh, which is hereby dismissed. The objection with regard to the appearance of Shri M.M. Singhvi, Advocate, in this Court is over ruled.