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2003 DIGILAW 1078 (PAT)

Shyam Bihari Shukla v. State Of Bihar

2003-09-30

INDU PRABHA SINGH

body2003
Judgment 1. This is an application under Section 482 of the Code of Criminal Procedure, 1973 (in short the Code). It is directed against the order dated 27.6.2001 passed by Shri Shyam Badan Singh, learned Ist Additional Sessions Judge, Sitamarhi in S.T. No. 378/2000 (arising out of Sitamarhi P.S. Case No. 22/98, G.R. No. 102/98) and for expunging unwarranted remarks passed by the learned Additional Sessions Judge in violation of the principles of natural justice. 2. The petitioner appears to be an Advocate practicing in Civil Court, Sitamarhi and has contended that one Yogendra Sah accused in Sitamarhi P.S. Case No. 22/98 had executed vakalatnama in his favour as his Advocate for filing his bail application in the Court of Shri P.K. Shukla, Judicial Magistrate, Ist Class, Sitamarhi. This vakalatnama was accepted by the petitioner on 28.8.2000 for the purpose of filling the bail application. Again the same accused, namely, Yongendra Sah executed another vakalatnama (Annexure 2) in favor of the petitioner for filing his bail application in the court of the learned Sessions Judge, Sitamarhi. This vakalatnama was accepted by the petitioner on 5th September, 2000. He, accordingly, filed a bail application before the learned Sessions Judge (Annexure-3) which was numbered as B.P. No. 667 of 2000 but was rejected by the learned Sessions Judge, Sitamarhi by his order dated 14.9.2000 (Annexure-4). 3. After the rejection of this bail application the accused Yogendra Sah never instructed the petitioner nor any power (vakalatnama) was given to him by the accused to conduct his trial. After the rejection of the bail application by the learned Sessions Judge, Sitamarhi the petitioner had no concerned whatsoever with the case of the accused Yogendra Sah which was committed to the Court of Session by an order dated 24.11.2000 since the offence was triable by the said court. The police papers were received by the accused Yogendra Sah himself from the court of the learned Judicial Magistrate Sitamarhi which will show that the petitioner was not instructed in the matter. On 26.6.2001 the accused, namely, Yogendra Sah was produced in the court where he disclosed that he has got no Advocate and be may be provided with an Advocate as will appear from the order sheet (Annexure-5) dated 26.6.2001 of the Court of Additional Sessions Judge, 1st Sitamarhi in S.T. No. 378/2000. On 26.6.2001 the accused, namely, Yogendra Sah was produced in the court where he disclosed that he has got no Advocate and be may be provided with an Advocate as will appear from the order sheet (Annexure-5) dated 26.6.2001 of the Court of Additional Sessions Judge, 1st Sitamarhi in S.T. No. 378/2000. However, from Annexure-5 itself it will appear that the learned court had observed that he had perused the record of the case which disclosed the already a vakalatnama was executed by the accused in favour of the present petitioner. Learned trial court further asked the accused to get his Advocate ready for conducting the trial in the court. 4. The petitioner has further contended that on 22.6.2001 some practicing lawyer of Sitamarhi Bar were humiliated and hackled by Shri Shyam Badan Singh, 1st Addl. Sessions Judge, Sitamarhi for which the members of the District Bar Association, of which the petitioner also happens to be an office bearer; held a meeting in the Bar Association and this news was published in Daily Hindi Newspaper, Hindustan. When the learned Additional Sessions Judge (opposite party No. 2) came to learn about it he with mala fide intention expressed unwarranted remarks in the order sheet of the case dated 27.6.2001 casting aspersions on the petitioner and did not afford him an opportunity to explain his positions which is against the principles of natural justice. 5. The petitioner has also contended that he was only authorised by the accused Yogendra Sah to move the bail petition on his behalf and, therefore, he could not have appeared in the session trial in the court in this case. Since the learned trial court was carrying vengeance against the petitioner he passed unwarranted observations in the order sheet dated 27.6.2001 against him. It was, accordingly, prayed that the said observations and aspersions may be expunged. 6. The parties have been heard in detail with respect to the questions raised in this petition. The petitioner himself appears to be an Advocate practicing in Sitamarhi Civil Court and is expected to be award of his duties, responsibilities and rights in the matter. On behalf of the petitioner it has been submitted that Yogendra Sah, the accused in this case, had executed two vakalatnamas (Annexures 1 and 2 for moving his bail petitions before the learned Magistrate as also before the learned Additional Sessions Judge. On behalf of the petitioner it has been submitted that Yogendra Sah, the accused in this case, had executed two vakalatnamas (Annexures 1 and 2 for moving his bail petitions before the learned Magistrate as also before the learned Additional Sessions Judge. The main point urged on behalf of the petitioner is that these two vakalatnamas (Annexures 1 and 2) were only executed to authorise him to move the bail petition of behalf of the accused. It was his contention that through these vakalatnama he was not authorised to appear in the case pending either before the Magistrate or before the learned Additional Sessions Judge. 7. I have perused Annexures 1 and 2. There is nothing in them to show that they were executed for the limited purpose for moving the bail petition in the two courts. On the other hand they appeared to be general vakalatnama authorising the Advocate (petitioner) to appear and conduct the cases mentioned in them. They do not appear to be limiting the authorisation only to filing of the bail application. On behalf of the petitioner my attention has been drawn to Annexure-5 which is order sheet dated 26.6.2001 of the Court of Additional Sessions Judge, Sitamarhi in S.T. No. 378 of 2000 according to which the accused when produced in the court had submitted that he does not have any Advocate and, therefore, the court may provide him with an Advocate. On this ground it has been contended that since the two vakalatnamas (Annexure-1 and 2) were only meant to authorise the petitioner to move the bail petitions on behaif of the accused obviously the accused made such submission before the court that he does not have any Advocate to represent him and that the court may provide him with an Advocate. However, I do not find any force in this contention of the petitioner. The order sheet dated 26.6.2001 clearly shows that the court has perused the record of the case and had found that a vakalatnama executed in favour of the present petitioner was already on the record. It further shows that the accused was directed to come ready in the case with his Advocate on the next date fixed. The order sheet dated 26.6.2001 clearly shows that the court has perused the record of the case and had found that a vakalatnama executed in favour of the present petitioner was already on the record. It further shows that the accused was directed to come ready in the case with his Advocate on the next date fixed. This shows that already a vakalatnama executed in favour of the present petitioner was on record in which the accused had authorised him to appear in the case on his behalf and represent his case during trial. Hence I do not find any force in this contention made on behalf of the petitioner. 8. Annexure-5 which is the order sheet dated 26.6.2001 shows that on this date witnesses was present who could not be examined on account of the absence of learned counsel for the accused (petitioner). It further shows that on account of his absence this witness could not be examined in the court. Paragraph 2 of the impugned order shows that it taken notice of the case of State of U.P. V/s. Shambhu Nath Singh, AIR 2001 SC 1403 according to which it was held that when a witness is present in court he must be examined on that date. It has further observed that inconvenience of the Advocate will be no ground to adjourn the case. In the impugned order there is also a reference to another judgment of the Honble Supreme Court in the case of Lt. Col. S.J. Chaudhary V/s. State (Delhi Administration), 1984 Cri LJ 340, in which it has been clearly laid down that the Advocate who has accepted the brief in a criminal case has to attend the trial from day-to-day. The Apex Court had further proceeded to observe that it could not over-stress the duty of the Advocate to attend the trial of the case from day-to-day. Having accepted the brief, it will be committing a breach of his professional duty, if he so fails to attend. From the aforesaid observation of the Honble Supreme Court it will become clear that the moment an Advocate accepts the vakalatnama on behalf of the accused in a sessions trial it becomes his duty to attend the hearing of the case from day-to-day and if he fails to do so it will amount to committing a breach of his professional duty. In the present case from the facts stated above it would appear that the petitioner had committed a breach of his professional duty and his plea that he had accepted the two vakalatnamas (Annexures-1 and 2) only for the purpose of moving the bail petitions can not be accepted also for the simple reason that there is nothing in them to show that they were executed only for purposes of moving the bail petitions. Hence I do not find any force in this contention of the learned counsel for the petitioner. 9. On behalf of the petitioner it has been contended that there was a general strike by the lawyer at Sitamarhi on the date fixed and, therefore, the petitioner could not appear in the Court. The Honble Supreme Court has, however, held in the case of Ramon Service Pvt. Ltd. V/s. Subhash Kapoor and others, AIR 2001 SC 207 that the strike by the lawyers in general is illegal and the Advocates are duty bound to attend the Court in the cases in which they represent their clients. 10. I have carefully gone through the impugned order. I find that it is reasonable order based on facts of the case and the law on the subject as laid down by the Honble Supreme Court. In paragraph 4 of the impugned order it has been observed that the accused of the case had every right to claim any compensation from the lawyer concerned who has accepted his brief and had failed to appear in the Court during the trial. This has also been held by the Honble Supreme Court in the above mentioned case. 11. From the detailed discussions made above, I do not find any illegality in the impugned order passed by the learned Sessions Judge, I do not find any merit in this application. It is, accordingly, dismissed.