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2015 DIGILAW 502 (MP)

Layak Singh Kushwah v. State of M. P.

2015-04-27

A.M.KHANWILKAR, ALOK ARADHE

body2015
JUDGMENT : 1. Presumably, the Advocates on record have chosen not to appear because of the call given by the Madhya Pradesh High Court Bar Association in its meeting dated 24th April, 2015 to boycott Court work for today. That decision taken by the Bar, is not in conformity with the known norms. 2. The Supreme Court in the case of Ex. - Capt. Harish Uppal vs. Union of India and another, (2003) 2 SCC 45 in para 35, in particular, has observed thus:- "35. In conclusion, it is held that lawyers have no right to go on strike or give a call for boycott, not even on a token strike. The protest, if any is required, can only be by giving press statements, TV interviews, carrying out of Court premises banners and/or placards, wearing black or white or any colour arm bands, peaceful protest marches outside and away from Court premises, going on dharnas or relay fasts etc. It is held that lawyers holding Vakalats on behalf of their clients cannot not attend Courts in pursuance of a call for strike or boycott. All lawyers must boldly refuse to abide by any call for strike or boycott. No lawyer can be visited with any adverse consequences by the Association or the Council and no threat or coercion of any nature including that of expulsion can be held out. It is held that no Bar Council or Bar Association can permit calling of a meeting for purposes of considering a call for strike or boycott and requisition, if any, for such meeting must be ignored. It is held that only in the rarest of rare cases where the dignity, integrity and independence of the Bar and/or the Bench are at stake, Courts may ignore (turn a blind eye) to a protest abstention from work for not more than one day. It is being clarified that it will be for the Court to decide whether or not the issue involves dignity or integrity or independence of the Bar and/or the Bench. Therefore in such cases the President of the Bar must first consult the Chief Justice or the District Judge before Advocates decide to absent themselves from Court. The decision of the Chief Justice or the District Judge would be final and have to be abided by the Bar. Therefore in such cases the President of the Bar must first consult the Chief Justice or the District Judge before Advocates decide to absent themselves from Court. The decision of the Chief Justice or the District Judge would be final and have to be abided by the Bar. It is held that Courts are under no obligation to adjourn matters because lawyers are on strike. On the contrary, it is the duty of all Courts to go on with matters on their boards even in the absence of lawyers. In other words, Courts must not be privy to strikes or calls for boycotts. It is held that if a lawyer, holding a Vakalat of a client, abstains from attending Court due to a strike call, he shall be personally liable to pay costs which shall be addition to damages which he might have to pay his client for loss suffered by him." 3. Considering the above and as we, prima facie, find that the Advocates have chosen not to appear on account of illegal call given by the Bar Association, have committed professional misconduct, for which, they must be noticed and called upon to explain as to why appropriate action should not be taken including to impose cost. That proceedings will continue independently. 4. Hence, show cause notice is issued to the Advocates - Permanand Dubey, Praveen Dubey, Navin Dubey, Seepja Dubey, Shrieesh Shrivastava, Bhasker Pandey, Prateek Dubey, Siddharth Datt, Nishant Datt, Pushpendra Dubey, Rahul Sharma, Ajay Mishra, Yogesh Soni, who have filed the Vakalatnama in both the matters. Returnable on 17th June, 2015. 5. Further, keeping in mind the observations of the Supreme Court, we cannot extricate ourselves from deciding the case merely because the Advocates have not chosen to appear. 6. We, accordingly, proceed with the hearing of the matters. 7. Both the applicants are named as accused in connection with Crime No. 19/2013 registered with Police Station S.T.F., Bhopal - commonly known as VYAPAM Examination Scam cases - for the offences punishable under Sections 409, 417, 419, 420, 467, 468, 471, 201 & 120-B of IPC; Section 3 (Gha) 1, 2/4of M.P. Recognized Examination Act, 1937 and Section 65 and 66 of the I.T. Act. 8. As regards applicant Layak Singh Kushwaha (in M.Cr.C. No. 20106/2014), the role ascribed to him by the prosecution is that of a "middleman". 8. As regards applicant Layak Singh Kushwaha (in M.Cr.C. No. 20106/2014), the role ascribed to him by the prosecution is that of a "middleman". It is stated that he is responsible for facilitating 10 candidates in committing unfair means during the examination conducted by VYAPAM and thus committed alleged crime. The offence has been committed by the applicant in collusion with the officials of VYAPAM. This applicant had filed bail application being M.Cr.C. No. 14857/2014 which has been dismissed by a speaking order on 10.10.2014. That order has been allowed to attain finality. In that case, the applicant can be permitted to file fresh bail application only if there is any changed circumstance. No changed circumstance has been noticed from the record which we have perused with the assistance of learned counsel for the State. Moreover, in the order dated 10.10.2014 it has been made amply clear that the applicant would be free to file fresh bail application after filing of final police report. The final police report is yet to be filed. Until filing of the final police report it is not open to the applicant to contend that there is changed circumstance warranting filing of second bail application before this Court. 9. In view of the above, this application must fail and is rejected with liberty to the applicant to apply afresh before this Court after filing of final charge sheet. 10. As regards applicant Amit Pandey (in M.Cr.C. No. 3866/2015), he has been named as co-accused along with Layak Singh. The prosecution case against this applicant is that he facilitated the candidates in commission of unfair means during examination conducted by VYAPAM. He also acted as middleman as in the case of Layak Singh and was responsible to assist 10 candidates with whom co-accused Layak Singh had interacted. 11. It is stated across the Bar by learned counsel for the State, on instructions, that charge sheet has been filed against this applicant on 16.4.2015 before the trial Court. 12. If so, the applicant must first approach the trial Court so that the trial Court will be able to analyse the claim of the applicant in the context of material appended to the police report and more so, this Court will have the advantage of the opinion of trial Court in that behalf. 13. 12. If so, the applicant must first approach the trial Court so that the trial Court will be able to analyse the claim of the applicant in the context of material appended to the police report and more so, this Court will have the advantage of the opinion of trial Court in that behalf. 13. Accordingly, we dispose of the application preferred by applicant - Amit Pandey with liberty to first approach the trial Court, who in turn, must consider the application expeditiously on its own merits, in accordance with law. 14. We are required to do the unpleasant task of issuing show cause notice to the Officers of the Court not only in furtherance of the exposition of the Supreme Court in the aforesaid case but also because, off late, it has been noticed that such calls to boycott the Court have become frequent and even in respect of matters which could be conveniently resolved on the administrative side. 15. The application is disposed of accordingly.