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2018 DIGILAW 442 (ORI)

SAPUA DAS v. STATE OF ORISSA

2018-04-20

S.K MISHRA

body2018
JUDGMENT : S.K.Mishra, J - The petitioners, being the accused for the alleged commission of offences under Sections 147, 148, 323, 307, 294, 506, 427 and 341/149 of the IPC in G.R. Case No.112 of 2014 of the court of learned J.M.F.C., Purushottampur, arising out of Purushottampur P.S. Case No.113 of 2014, assails the order dated 18.12.2017 passed by the learned Additional Sessions Judge, Chatrapur in S.T. Case No.13 of 2013 cancelling the Vakalatnama and issuing non-bailable warrant of arrest against the accused persons. 2. What should be the duty of the court when it is confronted with a situation where the conducting counsel duly engaged as per the procedure laid down pleds "no instructions" on the date of posting of a Sessions Case wherein witnesses were in attendance is to be addressed in this case. 3. Briefly stated on the basis of an FIR submitted by Ganesh Nahak before the I.I.C., Purushottampur Police Station registered as P.S. Case No.113 of 2014 for the alleged commission of offence under Sections 147, 148, 323, 307, 294, 506, 427 and 341/149 of the IPC, giving rise to G.R. Case No.112/2014 of the court of learned J.M.F.C., Purushottampur. The petitioners were granted bail, chargesheet was submitted against them. After taking cognizance, the learned Magistrate committed the case to the court of the learned Additional Sessions Judge, Chatrapur and has been registered as S.T. Case No.13 of 2013. The case was posted for hearing to 18.12.2017, on that date, the accused persons were absent. The learned counsel engaged by them, who has executed Vakalatnama duly stamped, and presented to the court, which forms part of the record stated in a memo before the trial court that the accused persons are not turning up, and hence, he is not interested to conduct the case on behalf of the accused persons. Hence, Vakalatnama was cancelled. The accused persons were found absent on call. The learned A.P.P produces attendance of four witnesses for the prosecution. Thereafter, on repeated call as the accused persons did not turn up, the court issued N.B.W.(A) against the present accused persons, for absence of petitioners before this Court. Obviously, as the witnesses could not be examined, they were discharged. 4. The accused persons were found absent on call. The learned A.P.P produces attendance of four witnesses for the prosecution. Thereafter, on repeated call as the accused persons did not turn up, the court issued N.B.W.(A) against the present accused persons, for absence of petitioners before this Court. Obviously, as the witnesses could not be examined, they were discharged. 4. The learned counsel for the petitioners assails the order submitting that non appearance of the petitioners was not deliberate and in such situations, the learned court should not be issued warrant of arrest. The learned Additional Government Advocate on the other hand submits that the procedure adopted by the court is not erroneous stating that when the accused persons were under a bond and they did not appear, the court issued NBW (A) against them. 5. The Hon'ble Supreme Court has time and again reiterated that witnesses are guests of the court and they should be treated humanely. This Court has also maintained utmost consistently that once witnesses are in attendance, they should not be sent back without being examined and cross-examined. In other words, repeated attendance of witnesses is against public policy and the tenor of judicial pronouncement in this country. So, on the nick of the moment when witnesses were present and the learned counsel knew that he was not going to appear for the accused persons what should be the duty of the advocate and what should be the duty of the court in such situation are the rhetorics. The Bar Council of India Rules, Chapter-II of Part-VII provides for the standards of professional conduct and etiquette of an advocate. The Bar Council Rules is a delegated legislation duly formulated by the Bar Council of India in exercise of its law making power under the Advocates Act, 1961. In Chapter-II as aforesaid the standards of professional conduct and etiquette has been provided. This standards of professional conduct and etiquette is in conformity with section 49 (1) (c) of the Act read with the proviso thereto. It is important to take note of the aforesaid section. "49. General power of the Bar Council of India to make rules.- (1) The Bar Council of India may make rules for discharging its functions under this Act, and, in particular, such rules may prescribe- x x (c) the standard of professional conduct and etiquette to be observed by advocates. x x" 6. "49. General power of the Bar Council of India to make rules.- (1) The Bar Council of India may make rules for discharging its functions under this Act, and, in particular, such rules may prescribe- x x (c) the standard of professional conduct and etiquette to be observed by advocates. x x" 6. A plain reading of the said section leaves no doubt in the mind of the reader that the parliament in his wisdom has given the Bar Council of India Authority to formulate law to monitor the conduct of and etiquette of advocates. In exercise of such power Chapter-II have been framed. The preamble of the Rules itself speaks a lot. I find it appropriate and also rather interesting to quote the same is appearing page-62. "An advocate shall, at all times, conduct himself in a manner befitting his status as an officer of the Court, a privileged member of the community, and a gentleman, bearing in mind that what may be lawful and a moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be improper for an Advocate. Without prejudice to the generality of the forgoing obligation, an Advocate shall fearlessly uphold the interests of his client and in his conduct conform to the rules hereinafter mentioned both in letter and in spirit. The rules hereinafter mentioned contain canons of conduct and etiquette adopted as general guides; yet the specific mention thereof shall not be construed as a denial of the existence of other equally imperative though not specifically mentioned". 7. A plain reading of the preamble leaves no doubt in the mind of the court that the Bar Council Rules provide that the conduct of Advocates should be in a manner befitting his status as an officer of the Court. An officer of the Court is a privileged member of the community. So, he has certain duties and obligations. Section-I of the said Chapter provides for the duty of advocates to the court. For the purpose of this case, I will quote only a few. Clause 1 provides that an advocate shall, during the presentation of his case and while otherwise acting before a Court, conduct himself with dignity and self-respect. So, he has certain duties and obligations. Section-I of the said Chapter provides for the duty of advocates to the court. For the purpose of this case, I will quote only a few. Clause 1 provides that an advocate shall, during the presentation of his case and while otherwise acting before a Court, conduct himself with dignity and self-respect. He shall not be servile and whenever there is a proper ground for serious complaint against a judicial officer, it shall be his right and duty to submit his grievance to proper authorities. 8. Clause 2 provides that an advocate shall maintain towards the Courts a respectful attitude, bearing in mind that the dignity of the judicial office is essential for the survival of a free community. An advocate shall also not allow his client to resort to sharp or unfair practices or from doing anything in relation to the Court, opposing counsel or parties. This proviso is at clause 4, there are some other provisions but for the present case those are not relevant. 9. Section-Ii provides for duties to the clients. Clause 11 provides that an advocate is bound to accept any brief in the Courts or Tribunals at a fee consistent with his standing at the Bar and the nature of the case. In special cases, circumstances he may refuse to accept a particular brief. Clause 12 provides that an advocate should not ordinarily withdraw from engagements, once accepted, without sufficient cause and unless reasonable and sufficient notice is given to the client. Upon his withdrawal from a case, he shall refund such part of the fee as has not been earned. These two provisions are important for this particular case. 10. It was the duty of the court to examine the witnesses when they were present and it also duty of the court to make a pragmatic attempt to examine the witnesses and to see that the case is not adjourned unnecessarily. 11. It is the duty of the counsel appearing for the accused to assist the court in conducting the case. This aspect is very much seen in the provisions discussed above. The Bar Council of India Rules provides that an advocate is an officer of the Court and a privileged member of the community, and he should act himself with dignity and self-respect. This aspect is very much seen in the provisions discussed above. The Bar Council of India Rules provides that an advocate is an officer of the Court and a privileged member of the community, and he should act himself with dignity and self-respect. So, it was duty of the counsel appearing for the accused persons to represent the accused persons. Even if, the accused persons were absent it was the duty of the learned counsel towards the Courts, being lawfully engaged and not prevented by sufficient cause from appearing in a court, in which the case of his client is pending and is called on for hearing. Otherwise, it will be dereliction of duty. This is plainly visible from a plain reading of clause 11 and 12 of the Bar Council Rules appearing Section-II of Chapter II of Part-VI. So, in such cases an advocate before pleading no instructions or before refusing to take steps should have given sufficient notice and that notice should be supported by sufficiency cause. In absence of such sufficient cause and a reasonable notice it was improper on the part of the learned Additional Sessions Judge to cancelled Vakalatnama executed in favour of the learned counsel. He should have requested the counsel to conduct case properly as per the rules and examine the witnesses. He could even dispense with the presence of the accused persons for the day only for the purpose of examination of the witnesses, even without any application. It is not necessary that in order to dispense with presence of the accused persons under Section 317 of Cr.P.C and allow representation by their counsel of choice the court, in seisin, require a petition. The provision itself does not say that a motion should be made but it recognizes the power of the court to dispense with the presence of the accused. Generally, the court practise and the procedure of insisting of a petition in order to avoid any possible denial, on a future date, but in appropriate cases, as in this case, it was open for the learned Additional Sessions Judge to allow the representation, even without application and he should have reminded the learned counsel in a dignified and polite manner, the duties cast upon him. 12. 12. For the aforesaid reasons, I hold that for the fault of the counsel is not conducting himself professionally with proper etiquette and in not discharging his duties towards the court as well as this client, the client should not suffer and therefore, the order dated 18.12.2017 passed by the learned Additional Sessions Judge, Chatrapur in S.T. Case No.13 of 2013 so far as it relates to N.B.W. issued against the petitioners is hereby quashed. They are directed to appear themselves to the jurisdiction of the learned Additional Sessions Judge, Chatrapur in the aforesaid case within seven days of reopening of the District Courts, failing which the order of quashing shall not take effect. With such observation, the CRLMC is disposed of. Final Result : Disposed