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Karnataka High Court · body

2012 DIGILAW 662 (KAR)

Vishveshwara Bhat v. A. P. Ranganatha

2012-08-13

V.JAGANNATHAN

body2012
Judgment 1. In defence of the petitioner (A-3 in the trial court), an advocate and member of the Advocates Association, Bangalore ('AAB' for short) Sri P.B. Achappa, entered the court premises of IX Addl. C.M.M., Bangalore, to file an application for exemption on behalf of the petitioner. The said counsel was threatened by a group of advocates (deleted and) by telling the counsel that if he makes an attempt to file an application for exemption, he would be taken care of outside the court. 2. With this threat in the background, the counsel Sri P.B. Achappa entered the court hall and did not file the application for exemption but prayed the court to pass an order under Section 303 of the Cr. P.C. The learned judge of the court, after hearing the counsel about the threat given by a section of advocates (corrected vide court order dated 4-9-12) proceeded to issue N.B.W. against the petitioner. 3. It is this order passed on 7.8.2012 that has forced the petitioner, who happened to be the Executive Managing Editor of Vijayakarnataka newspaper, to approach this court under Section 407 of the Cr. P.C. to seek transfer of the case to any other court outside Bangalore or to the competent court at Mangalore. 4. Learned counsel Sri Sajan Poovayya for the petitioner submits that in the aftermath of 2.3.2012 incident, involving a section of advocates (corrected vide court order dated 4-9-12), police and the media, there has been an atmosphere of hostility prevailing among these three groups and it is in this background, the present petition has to be considered by the court. 5. Elaborating the aforesaid submission, it is argued that though the case P.C.R. No. 19988/2007 (C.C.No.3406/2008) in respect of the present petitioner, who is A-3 in the private complaint lodged by R-1 herein, dates back to the year 2007 and cognizance was taken in 2008, yet on account of the recent incident that took place on 2.3.2012, there has been no free and fair atmosphere prevailing in the court below particularly when the case in which this petitioner is taken up by the court. It is mentioned in this connection that on several occasions in the past, the petitioner had to be taken out of the court premises under police protection and as many as 300 police personnel had to escort the petitioner on 27.6.2012. It is mentioned in this connection that on several occasions in the past, the petitioner had to be taken out of the court premises under police protection and as many as 300 police personnel had to escort the petitioner on 27.6.2012. Again on 9.7.2012, the petitioner could not appear before the trial court on account of the volatile atmosphere in the court complex. 6. The said situation according to the counsel continued to prevail on 18.7.2012 when the court issued N.B.W. against this petitioner. Even on the day when the case was posted for recording of the plea of the petitioner, more than 250 policemen were present in the court complex and on 1.8.2012, once again the petitioner had to appear in the court with the help of 250 policemen for recording of the plea. He then referred to the circumstances that led to issuance of N.B.W. 7. Therefore, learned counsel Sajan Poovayya submitted that the court may consider transferring the case to the competent court at Mangalore or to any-other court outside Bangalore jurisdiction or in the alternative, the court may also consider the request for holding the proceedings through video conference. 8. Sri Pramodchandra, the learned counsel for R-1, very fairly submitted that on 7.8.2012, a group of advocates were present outside the court premises and the presence of number of persons on that day was more out of curiosity, than anything else because, the petitioner happened to be the editor of Vijayakarnataka newspaper. Therefore, there is nothing strange in the number of persons present in the court premises on that day and even on the earlier date i.e., 26.7.2012. It is submitted that on 7.8.2012, the atmosphere was a normal one. However, the learned counsel also conceded that the counsel appearing for the petitioner did mention to the court about the threat by some advocates and (corrected vide court order dated 4-9-12) an application for exemption is filed. It is, therefore, submitted that, but for the presence of large number of persons on 26.7.2012, the atmosphere thereafter has been a normal one and, as such, the request for transferring the case to any other court outside Bangalore does not arise. Mention was also made about the petitioner having moved this court seeking permanent exemption. 9. It is, therefore, submitted that, but for the presence of large number of persons on 26.7.2012, the atmosphere thereafter has been a normal one and, as such, the request for transferring the case to any other court outside Bangalore does not arise. Mention was also made about the petitioner having moved this court seeking permanent exemption. 9. Two questions arise for consideration before this court in the light of the aforementioned submissions put forward by the learned counsel for the parties. i) Can a member of the AAB be prevented from filing an application for exemption in defence of the accused by a section of advocates (corrected vide court order dated 4-9-12) and if that were to happen, as is in the instant case, what could be the consequence? ii) Whether the prayer for transfer of the case to any other court outside Bangalore can be considered? Question No.(i) 10. Section 303 of the Cr. P.C. gives right to a person accused of an offence before a criminal court to be defended by a pleader of his choice. The petitioner did engage the services of learned counsel Sri Sajan Poovayya to defend him in the case. A colleague of Sri Sajan Poovayya viz., Sri Achappa, did go to the court on 7.8.2012 to file an application for exemption on behalf of the accused petitioner. But, he was prevented and the effect was that the court had issued N.B.W. against the petitioner. Thus, the arrest of the petitioner and his liberty being curtailed was imminent. 11. In this connection, this court is reminded of an incident in which two famous personalities of England were involved. One was a famous English lawyer as he then was viz., Thomas Erskine, and the other famous person was the author of the famous book, "Rights of Man" viz., Tom Paine. 12. The event that took place involving Thomas Erskine is illustrative of the position of law in England, and it is, “The law of England regards the liberty of the individual so highly that the defence of any man accused of serious crime must be put first". In the case involving Tom Paine, the facts for our purpose, put in a nutshell, are that, Thomas Erskine was retained for the defence of Tom Paine. In the case involving Tom Paine, the facts for our purpose, put in a nutshell, are that, Thomas Erskine was retained for the defence of Tom Paine. Tom Paine wrote a book called "Rights of Man" which contained some offensive remarks about William III and George I and Tom Paine was prosecuted for seditious libel. Erskine personally would not have approved the book in the least-very few people in England did -but the matter was to be tried in the court in which Erskine practised as a barrister. He felt that it was his duty to defend the party accused to the best of his ability and so, he accepted the retainer. Great pressure was put on Thomas Erskine as he was walking home and he was told: "Erskine, you must not take Paine's brief." Erskine replied: "But I have been retained and I will take it." He did take it and when he came to address the jury he used these memorable words. "I will forever, at all hazards, assert the dignity, independence and integrity of the English Bar, without which impartial justice, the most valuable part of the English Constitution, can have no existence. From the moment that any advocate can be permitted to say that he will, or will not, stand between the Crown and the subject arrigned in the court where he daily sits to practise -from that moment the liberties of England are at an end." "If the advocate refuses to defend, from what he may think of the charge or the defence, he assumes the defence, he assumes the character of the judge; nay, he assumes it before the hour of judgment; and, in proportion to his rank and reputation puts the heavy influence of perhaps a mistaken opinion into the scales against the accused, in whose favour the benevolent principle of English law makes all presumption, and which commands the very judge to be his counsel." 13. In the said case, the jury found Paine guilty. Erskine was made to suffer for accepting the brief and he lost his office as Attorney-General to the Prince of Wales. Nevertheless, the Prince of Wales afterwards made amends by appointing him Chancellor and thus, the principle was vindicated. 14. In the said case, the jury found Paine guilty. Erskine was made to suffer for accepting the brief and he lost his office as Attorney-General to the Prince of Wales. Nevertheless, the Prince of Wales afterwards made amends by appointing him Chancellor and thus, the principle was vindicated. 14. This great event in the English Bar is often cited in leading books on the legal profession as an example for one of the virtues to be cultivated by a member of the Bar viz., "courage". 15. I have quoted the aforesaid example from the book of P. Ramanatha Aiyer, "Advocate -His Mind & Art", Third Edition 2003, only to reiterate that, in the case on hand, preventing counsel Sri P.B. Achappa from filing an application for exemption on behalf of the petitioner has ultimately led to issuance of N.B.W. and had not this court stepped in by granting an order of stay, the petitioner, in all probability, might have been arrested and his liberty curtailed. Further, the observations of the Supreme Court in a recent decision in the case of A.S. Mohammed Rafi versus State of Tamilnadu, reported in AIR 2011 SC 308 , cannot be last sight of by anyone the legal profession, wherein it was held thus : "16. In our opinion, such resolutions are wholly illegal, against all traditions of the bar, and against professional ethics. Every person, however, wicked, depraved, vile, degenerate, perverted, loathsome, execrable, vicious or repulsive he may be regarded by society has a right to be defended in a court of law and correspondingly it is the duty of the lawyer to defend him. 32. Professional ethics requires that a lawyer cannot refuse a brief, provided a client is willing to pay his fee, and the lawyer is not otherwise engaged. Hence, the action of any Bar Association in passing such a resolution that none of its members will appear for a particular accused, whether on the ground that he is a policeman or on the ground that he is a suspected terrorist, rapist, mass murderer, etc. is against all norms of the Constitution, the Statute and professional ethics. It is against the great traditions of the Bar which has always stood up for defending persons accused for a crime. Such a resolution is, in fact, a disgrace to the legal community. is against all norms of the Constitution, the Statute and professional ethics. It is against the great traditions of the Bar which has always stood up for defending persons accused for a crime. Such a resolution is, in fact, a disgrace to the legal community. We declare that all such resolutions of Bar Associations in India are null and void and the right minded lawyers should ignore and defy such resolutions if they want democracy and rule of law to be upheld in this country. It is the duty of a lawyer to defend no matter what the consequences, and a lawyer who refuses to do so is not following the message of the Gita." 16. It is rather unfortunate that a section of advocates (corrected vide court order dated 4-9-12) did put counsel Sri P.B. Achappa on threat and because of that, he could not file an application for exemption on behalf of the petitioner. As rightly submitted by the learned counsel for both the parties, the case involving the present petitioner has got nothing to do with the March 2nd 2012 incident involving the advocates, police and the media. But, at the same time, a section of advocates (corrected vide court order dated 4-9-12) who were present in the court complex and had threatened the counsel for the petitioner, have not done anything to do justice to the profession. 17. This court is of the view that the incident that occurred on 7.8.2012, referred to earlier, should not have taken place (corrected vide court order dated 4-9-12). Question No.(ii) 18. As far as transfer of the case is concerned, the submission made by learned counsel Sri Sajan Poovayya for the petitioner that each time the petitioner was present in the court he was escorted by not less than 250 policemen, goes to show that the atmosphere was not free from any kind of pressure. Nevertheless, in view of the submission made by the learned counsel for R-1 that except for one day i.e., 27.6.2012, on the rest of the days, there were no untoward incidents excepting as to what had happened on 7.8.2012, two options are left open to the trial court in this case. 19. Nevertheless, in view of the submission made by the learned counsel for R-1 that except for one day i.e., 27.6.2012, on the rest of the days, there were no untoward incidents excepting as to what had happened on 7.8.2012, two options are left open to the trial court in this case. 19. The first one is to hold the proceedings in the normal way so long as there is no threat of any kind whatsoever from any quarter and so long as the petitioner is allowed to come to the court and go back without being put on any kind of threat or danger and for this, the trial court, with the help of R-5 i.e., the Home Department, will have to ensure that the accused persons who come to the court to attend the proceedings, including the petitioner, are not put under any kind of pressure which would give them a semblance of fear that they apprehend danger to their lives. 20. The members of the Association equally have a sacred duty to ensure that no member of the Association, whether a junior or a senior, is prevented from going to the court and filing application on behalf of the accused in whose defence the counsel wants to appear in the court. The case of Thomas Erskine, I am sure, would inspire every member of the Advocates Association, Bangalore to live upto the high standards of the legal profession. 21. The second option before the court is that if for any reason, the court finds it difficult to have the proceedings conducted in a peaceful atmosphere, the court is always at liberty to take the technology into assistance and also consider recording of the evidence by way of video conference. 22. In the instant case, when the help of the court is sought to proceed under Section 303 of the Cr. P.C, the learned Magistrate, in my opinion, could have and ought to have exempted the petitioner from appearance. It is neither the fault of the petitioner nor that of the counsel who appeared for him that led to the court issuing N.B.W. but it was the circumstances that prevailed which came in the way. 23. P.C, the learned Magistrate, in my opinion, could have and ought to have exempted the petitioner from appearance. It is neither the fault of the petitioner nor that of the counsel who appeared for him that led to the court issuing N.B.W. but it was the circumstances that prevailed which came in the way. 23. Therefore, taking all these circumstances into account and more so the submission made by the junior counsel for the petitioner, the trial court ought not to have resorted to issue N.B.W. as if it is a mechanical act that whenever an application for exemption is not filed, warrant has to follow. That may hold good in general circumstances, but not in a case of this nature when the counsel himself was prevented from filing an application for exemption. There was no dereliction of duty on the part of the counsel who appeared for the accused. Had he not filed the application that would have constituted breach of professional ethics. 24. Every trial judge should have to keep in view that procedure is hand maid of justice and they should not be allowed to loom so large so as to obscure very the goal i.e., justice. 25. With the aforesaid observations, the trial court is directed to re-consider the application if any filed on behalf of the petitioner for exemption, in accordance with law.