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2007 DIGILAW 1805 (DEL)

OM PRAKASH v. MURTI DEVI

2007-09-26

SHIV NARAYAN DHINGRA

body2007
JUDGMENT Crl. L.P. No. 158/2007: Leave to appeal granted for the reasons stated in the application. Crl. Appeal No. 505/2007: 1. This appeal is preferred against the order dated 5th April, 2006 which reads as under: "5.4.2006 Pr: Complainant in person. Accused in person. Complainant submits that his Counsel is not available. On the last date of hearing complainant was given last and final opportunity to lead evidence. Today no complainant witness is present. In this case notice was framed on 29.7.2005 and till date no complainant witness has been examined. Accordingly CE is closed. There is nothing incriminating against the accused on record which can be put to the accused. Statement of accused is dispensed with. Accused is acquitted. File be consigned to Record Room. MM : DELHI: 5.4.06" 2. It is submitted by Counsel for the appellant that the trial Court failed to appreciate that the complainant was present on each and every date of hearing and due to the lawyers strike, he could not get the assistance of lawyers, and in this situation, the Court should have provided him legal assistance for his examination-in-chief or could have adjourned the case as nobody can examine himself by way of examination-in- chief. It is also stated that the trial Court failed to appreciate that lot of time was consumed by respondent herself in seeking adjournments and on account of filing frivolous applications. 3. A perusal of the order sheets would show that after giving notice to the accused on 29.7.2005, the case was posted by the learned MM for complainants evidence on 18.11.2005. On 18.11.2005, Counsel for the complainant was busy in another Court. No complainants evidence was examined. The Court observed that business was no ground for adjournment. However, the case was adjourned for 3rd January, 2006. On 3rd January, 2006, no PE was present. The complainant had not offered to examine himself as a witness, as alleged in the appeal and the case was adjourned to 1st February, 2006, giving last opportunity for evidence. On 1.2.2006, complainant again sought adjournment, stating that the witnesses were not available. The trial Court granted one more opportunity for examination of the complainants witnesses observing that this was final opportunity and no further adjournment shall be given and PE shall be closed if no witness is examined. On 1.2.2006, complainant again sought adjournment, stating that the witnesses were not available. The trial Court granted one more opportunity for examination of the complainants witnesses observing that this was final opportunity and no further adjournment shall be given and PE shall be closed if no witness is examined. On 5.4.2006 again complainant did not examine any witness and the evidence was closed and accused was acquitted. 4. The plea taken by Counsel for the appellant that Advocates were on strike and, therefore, the complaint should have been adjourned by the trial d Court, is not tenable. It has been held several times by the Honble Supreme Court that Advocates have no right to avoid appearance on the ground of strike. In Ex-Capt. Harish Uppal v. Union of India, VII (2002) SLT 229= 2003 (2) SCC 45 , Supreme Court observed as under: Thus the law is already well settled. It is the duty of every advocate who has accepted a brief to attend trial, even though it may go on day-today and for a prolonged period. It is also settled law that a lawyer who has accepted a brief cannot refuse to attend Court because a boycott call is given by the Bar Association. It is settled law that it is unprofessional as well as unbecoming for a lawyer who has accepted a brief to refuse to attend Court even in pursuance of a call for strike or boycott by the Bar Association or the Bar Council. It is settled law that Courts are under an obligation to hear and decide cases brought before them and cannot adjourn matters merely because lawyers are on strike. The law is that it is the duty and obligation of Courts to go on with matters or otherwise it would tantamount to becoming a privy to the strike. It is also settled law that if a resolution is passed by Bar Associations expressing want of confidence in judicial officers, it would amount to scandalising the Courts to undermine its authority and thereby the advocates will have committed contempt of Court. Lawyers have known, at least since Mahabir Singhs case AIR 1999 SC 287 case that if they participate in a boycott or a strike, their action is ex facie bad in view of the declaration of law by this Court. Lawyers have known, at least since Mahabir Singhs case AIR 1999 SC 287 case that if they participate in a boycott or a strike, their action is ex facie bad in view of the declaration of law by this Court. A lawyers duty is to boldly ignore a call for strike or boycott of Court/ s. Lawyers have also known, at least since Ramon Services, VIII (2000) SLT 125= 2001 (1) SCC 118 , case that the advocates would be answerable for the consequences suffered by their clients if the non-appearance was solely on grounds of a strike call. 5. In AIR 2005 SC 4442 =VII (2005) SLT 274=123 (2005) DLT 664 (SC)=IV (2005) CPJ 4 (SC), Society for Common Cause v. Union of India, Supreme Court again had occasion to consider issue of strike of advocates and Supreme Court reiterated the law already laid down in Harish Uppal case (supra) and reminded the obligations of advocates. 6. In Ramon Services Pvt. Ltd. v. Subhash Kapoor and Ors., VIII (2000) SLT 125= AIR 2001 SC 207 , Supreme Court observed as under: - We put the profession to notice that in future the advocate would also be answerable for the consequence suffered by the party if the nonappearance was solely on the ground of a strike call. It is unjust and inequitable to cause the party alone to suffer for the self imposed dereliction of his advocate. We may further add that the litigant who suffers entirely on account of his advocates non-appearance in Court, he has also the remedy to sue the advocate for damages but that remedy would remain unaffected by the course adopted in this case. Even so, in situations like this, when the Court burdens the party with costs for the failure of his advocate to appear, we make it clear that the same Court has power to permit the party to realise the costs from the advocate concerned. However, such direction can be passed only after affording an opportunity to the advocate. If he has any justification cause the Court can certainly absolve him from such a liability. But the advocate cannot get absolved merely on the ground that he did not attend the Court as he or his association was on strike. However, such direction can be passed only after affording an opportunity to the advocate. If he has any justification cause the Court can certainly absolve him from such a liability. But the advocate cannot get absolved merely on the ground that he did not attend the Court as he or his association was on strike. If any advocate claims that his right to strike must be without any loss to him but the loss must only be for his innocent client such a claims repugnant to any principle of fair-play and cannons of ethics. So when he opts to strike work or boycott the Court he must as well be prepared to bear at least the pecuniary loss suffered by the litigant client who entrusted his brief to that advocate with all confidence that his cause would be safe in the hands of that advocate. 7. This Court in B.L. Wadehra v. State (N.C. T. of Delhi), 85 (2000) DLT 114, observed that there was no fundamental right either under Article 19 or under Article 21 of the Constitution, which permits or authorises a lawyer to abstain from appearing in Court in a case in which he holds the Vakalat for a party in that case. 8. In Ramon Services Pvt. Ltd. v. Subhash Kapoor (supra), Supreme Court also observed: Though a matter of regret, yet it is a fact, that the Courts in the country have been contributory to the continuance of the strikes on account of their action of sympathising with the Bar and failing to discharge their legal obligations obviously under the threat of public frenzy and harassment by the striking advocates. I find myself in agreement with the submission of Sh. M.N. Krishnamani, Senior Advocate that the Courts were sympathising with the Bar by not agreeing to dismiss the cases for default of appearance of the striking advocates. I have my reservations with the observations of Thomas, J. that the Courts had not been sympathising with the Bar during the strikes or boycotts. M.N. Krishnamani, Senior Advocate that the Courts were sympathising with the Bar by not agreeing to dismiss the cases for default of appearance of the striking advocates. I have my reservations with the observations of Thomas, J. that the Courts had not been sympathising with the Bar during the strikes or boycotts. Some Courts might have conducted the cases even during the strike or boycott periods or adjourned due to helplessness for not being in a position to decide the lis in the absence of the Counsel but majority of the Courts in the country have been impliedly sympathisers by not rising to the occasion by taking positive stand for the preservation of the high traditions of law and for continued restoration of the confidence of the common man in the institution of judiciary. It is not too late even now for the Courts in the country to rise from the slumber and perform their duties without fear or favour particularly after the judgment of this Court in Mahabir Singhs case AIR 1999 SC 287 . Inaction will surely contribute to the erosion of ethics and values in the legal profession. The defaulting Courts may also be contributory to the contempt of this Court. 9. In Mahabir Prasad Singh v. Jacks Aviation Pvt. Ltd., 76 (1998) DLT 580 (SC)= AIR 1999 SC 287 , Supreme Court observed as under: "Judicial function cannot and should not be permitted to be stonewalled by browbeating or bullying methodology, whether it is by litigants or by Counsel. Judicial process must run its even course unbridled by any boycott call of the Bar, or tactics of filibuster adopted by any member thereof. High Courts are duty bound to insulate judicial functionaries within their territory from being demoralised due to such onslaughts by giving full protection to them to discharge their duties without fear. But unfortunately this case reflects apathy on the part of the High Court in affording such protection to a judicial functionary who resisted, through legal means, a pressure strategy slammed on him in open Court." 10. There is no provision in Advocates Act and no Rule of Bar Council of Delhi or Bar Council of India that an advocate can refuse to provide legal assistance to the persons from whom he has charged the professional fees on the ground that he was on strike. There is no provision in Advocates Act and no Rule of Bar Council of Delhi or Bar Council of India that an advocate can refuse to provide legal assistance to the persons from whom he has charged the professional fees on the ground that he was on strike. An advocate cannot take a plea of nonappearance in the Court on the ground of his being on strike. It is the case of the appellants Counsel himself that he did not appear, not on one but on several hearings, on the ground of strike. The Court is supposed to work and dispense justice whether advocates appear for the assistance of litigants or not. The Court cannot strike work and adjourn the cases and sit idle on the ground that advocates are on strike. A litigant who can brief his advocate and get the complaint prepared can state his case in his own words before the Judge and he can get his statement recorded. The Judge is duty bound to record the statement of complainant, if the complainant is willing and ready to make his statement. In the present case, the complainant had not shown his willingness, at any point of time, to lead evidence before the trial Court, rather the complainant had only been saying that there was no evidence available or his Counsel was not available. Fair trial and giving fair opportunity to a person to present his case only means that the person should be given hearing and should be given to call his Counsel on the date when the case is fixed. Fair trial does not mean that even when Counsel is not appearing in the Court deliberately, either due to strike or because of his business somewhere else, the Court should stop working and adjourn the cases. Court cannot adopt a coercive measure to bring the Counsel to the Court to assist his litigant. It is the litigant who has to bring his Counsel to the Court for assistance. Legal aid cannot be given to a litigant who is capable of engaging a Counsel and who has already engaged a Counsel but his Counsel is refusing to appear in the Court on one or the other ground. Strike is no ground to adjourn the cases nor strike is a ground for the Judges not to work and to put the shutters on the Court. Strike is no ground to adjourn the cases nor strike is a ground for the Judges not to work and to put the shutters on the Court. The functioning of the Court cannot be allowed to be hampered and brought to a standstill because of strikes. 11. In view of my foregoing discussion, I find no force in this appeal. The appeal is hereby dismissed. Result : Appeal dismissed.