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2016 DIGILAW 454 (RAJ)

Harsahay Bairwa v. State of Rajasthan

2016-03-29

MOHAMMAD RAFIQ, PRAKASH GUPTA

body2016
ORDER 1. This matter depicts how a counsel, only with a view to securing an order favourable to his client, can mislead the Court. Matter has been laid before us on an application filed by the State of Rajasthan with the prayer to recall the judgment dt. 2.12.2015 passed by this Court in D.B. Special Appeal (W) No. 1037/2015, directing release of the appellant on permanent parole, which was obtained by the non-applicant-writ petitioner, concealing the fact that operation of judgment dt. 27.2.2015 passed by the Single Bench of this Court, allowing earlier writ petition filed by the same non-applicant-writ petitioner for his premature release on parole, was stayed by the Division Bench of this Court vide order dt. 9.7.2015 in the appeal preferred by the State of Rajasthan (D.B. Civil Special Appeal (Writ) No. 439/2015). The non-applicant then filed another writ petition bearing No. 15642/2015 for his release on permanent parole without disclosing the factum of aforesaid stay order, which was dismissed by the Single Bench of this Court vide order dt. 29.10.2015. It is in the appeal filed against that order that this Court allowed the appeal filed by the non-applicant-writ petitioner vide judgment dt. 2.12.2015 directing his release on permanent parole, of which judgment recall is sought by the applicants. Mr. B.N. Sandu, learned Additional Advocate General appearing on behalf of the applicants submitted that at the time of filing of S.B. Civil Writ Petition (Parole) No. 15642/2015 on 12.10.2015, the non-applicant-petitioner was fully aware of the fact that operation of judgment dt. 27.2.2015 passed by the Single Bench of this Court in his earlier writ petition for his premature release has been stayed by the Division Bench of this Court vide order dt. 9.7.2015. This fact was deliberately concealed by the non-applicant in the writ petition as also in the special appeal. The non-applicant-petitioner owed a moral obligation to disclose this fact in the aforesaid writ petition and also at the time of filing special appeal there against, especially when he was represented by the same counsel. Thus, judgment dt. 2.12.2015 passed by this Court in D.B. Special Appeal (Writ) No. 1037/2015 for release of the non-applicant on permanent parole has been obtained by him by playing a fraud on the Court and concealing the aforesaid vital fact. Thus, judgment dt. 2.12.2015 passed by this Court in D.B. Special Appeal (Writ) No. 1037/2015 for release of the non-applicant on permanent parole has been obtained by him by playing a fraud on the Court and concealing the aforesaid vital fact. However, the non-applicant-prisoner Harsahay Bairwa has yet not been released in view of interim order of stay and continues to remain in jail. Learned Additional Advocate General therefore prayed for recall of the judgment dt. 2.12.2015. 2. Mr. B.R. Choudhary, learned counsel appearing on behalf of the non-applicant tried to justify his aforesaid act by contending that earlier writ petition, which was allowed by Single Bench of this Court vide order dt. 27.2.2015, was for premature release of the non-applicant on parole, which is regulated by executive orders whereas subsequent writ petition filed by the same non-applicant on 12.10.2015 sought a direction for his release on permanent parole under Rule 9 of the Rajasthan Prisoners Release on Parole Rules, 1958. Purpose of filing two writ petitions was different and, therefore, it was not necessary for the writ petitioner or for him, to make such disclosure about filing of earlier writ petition and the interim order passed by the Division Bench staying operation of the judgment passed therein, while filing subsequent writ petition or while arguing the appeal there against. 3. Perusal of order dt. 27.2.2015 passed by the Single Bench of this Court in S.B. Civil Writ Petition No. 5509/2014 filed by the non-applicant indicates that writ petition was allowed with direction to the respondents to extend the benefit of "premature release on parole to the petitioner". Effect of premature release would have been to allow the convict prisoner to remain outside the jail for remaining duration of the period of sentence. Writ petition subsequently filed on 12.10.2015 for release of non-applicant on permanent parole also in the event of being allowed by the Division Bench of this Court vide judgment dt. 2.12.2015 had the same effect that thereby the convict prisoner was ordered to be released on permanent parole on furnishing personal bond and two sureties. 4. We express our anguish at the manner in which the same counsel, Mr. B.R. Choudhary, who represented the convict prisoner Harsahay Bairwa, not only in both the writ petitions, but also in both the appeals, led the Court into passing the judgment dt. 2.12.2015. 4. We express our anguish at the manner in which the same counsel, Mr. B.R. Choudhary, who represented the convict prisoner Harsahay Bairwa, not only in both the writ petitions, but also in both the appeals, led the Court into passing the judgment dt. 2.12.2015. An advocate is not only accountable to his client, but he also has a duty towards the Court:, which is why he is termed as Officer of the Court. We deprecate the conduct of the same advocate, who represented the same litigant in all four matters, twice before the Single Bench and twice before the Division Bench and yet did not make full and fair disclosures. And unfortunately, even the Government Counsel representing the State did not bring this fact to the notice of the Court. Had the fact about that judgment passed in earlier writ petition directing premature release on parole of the same prisoner and further fact that the order has been stayed by Division Bench of this Court been brought to our notice, we would not have possibly been persuaded to pass the aforesaid order directing release of the prisoner on permanent parole and would have in all probability directed clubbing of both Division Bench appeals. 5. Advocacy is a noble profession. This profession stands for certain values and ethos. It is in essence representing view point of a litigant before a Court. It is an art of persuasion. In fact, many of those, who were in the forefront of freedom movement had their grooming in this profession. It is therefore that this profession takes pride in contributing large number of freedom fighters. Like any other vocation, advocacy as a profession is adopted by many for earning their livelihood. But then, this profession is not all about earning. It rather involves more of learning than earning. An advocate accepting the brief of his client may strive to convince the Court to uphold his argument within the bounds of law. He can certainly canvass his case before the Court by making best of the arguments to persuade the Court for passing orders that may be favourable to his client. But he should never compromise with professional ethics. No one can be allowed to pollute the fountain of justice by not stating before the Court all facts correctly. He can certainly canvass his case before the Court by making best of the arguments to persuade the Court for passing orders that may be favourable to his client. But he should never compromise with professional ethics. No one can be allowed to pollute the fountain of justice by not stating before the Court all facts correctly. But what has happened in this case is indeed painful to note that an advocate, instead of securing an order by persuasion of his arguments, indulged in malpractice of concealing vital information having direct bearing on the matter. 6. In view of what has been discussed above, we are persuaded to allow this application and recall judgment dt. 2.12.2015, which is hereby recalled. However, at the same time, we impose cost of Rs. 25,000/- upon the non-applicant Harsahay Bairwa to be deposited by him with the Rajasthan State Legal Services Authority, Rajasthan High Court Premises, Jaipur. We further direct that copy of this order be sent to Secretary, Bar Council of Rajasthan, Jodhpur for initiating appropriate disciplinary action against the erring lawyer for his misconduct. With the aforesaid directions, application is allowed.