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2019 DIGILAW 3326 (PNJ)

Sewak Singh & Anr. v. State Of Haryana & Ors.

2019-12-10

SANJAY KUMAR

body2019
JUDGMENT 1. Sewak Singh, aged 25 years, and Kiran @ Kirna, aged 17 years, filed CWP-32219-2019 seeking a direction to the police authorities of the State of Haryana to protect their lives and liberty. They sought a further direction to the police authorities to take action upon their representation dated 02.11.2019 (Annexure P-3). 2. When the matter was taken up for hearing on admission on 06.11.2019, this Court noted the fact that Kiran @ Kirna, the second petitioner, was a minor and that it was her claim that she was in a live-in relationship with Sewak Singh, the first petitioner, who was eight years older than she. While so, Mr. Sandeep Saini, learned counsel, entered appearance for the parents of the second petitioner, who were arrayed as respondents No. 4 and 5, and sought time till the next day to enable them to come to the Court. As the second petitioner was a minor and the first petitioner was not her legal guardian, this Court opined that she could not be allowed to stay with him even for one night and expressed the inclination to send her to Nari Niketan, Sector 26, Chandigarh. At that point, Ms. Dolly Shivani, Advocate, appearing for the petitioners, stated that she would take personal responsibility for the second petitioner and keep her at her own house for the night. The learned Advocate also undertook to produce the second petitioner before the Court the next day. Accepting the undertaking of the learned Advocate, the matter was adjourned to the next day. A specific observation was made in the order that the second petitioner, Kiran @ Kirna, should remain in the custody of Ms. Dolly Shivani, Advocate, in the meanwhile. 3. However, when the matter was taken up on the next day, the second petitioner informed the Court that she did not stay at the house of Ms. Dolly Shivani, Advocate. This Court accordingly observed as follows in the order passed on 07.11.2019:- '.... It is therefore clear that the learned counsel was not only a party to but was also an active instigator of the fraud that was committed upon this Court. This Court was led to believe that the custody of the minor could be entrusted to the learned Advocate, who was expected to discharge her primary duty as an officer of the Court instead of identifying with the cause of her clients. This Court was led to believe that the custody of the minor could be entrusted to the learned Advocate, who was expected to discharge her primary duty as an officer of the Court instead of identifying with the cause of her clients. In the light of the reprehensible conduct of the learned counsel, this Court deems it proper to refer her case to the Bar Council of Punjab and Haryana for appropriate disciplinary action.' 4. The second petitioner, who was present in Court, was not even willing to talk to her parents who had come to the Court and insisted on going with the first petitioner with whom she had no legal relationship. This Court accordingly deemed it proper to send her to Nari Niketan, Sector 26, Chandigarh, till the next hearing and adjourned the matter to 14.11.2019. 5. On 14.11.2019, Kiran @ Kirna, the second petitioner, was produced before the Court. Upon interaction with Kiran @ Kirna and her parents in chambers, this Court found that she was ready and willing toreturn to her parental home. This Court was further informed that the first petitioner, Sewak Singh, had been arrested in relation to the criminal complaint earlier lodged by the parents of the second petitioner. The parents of the second petitioner undertook before the Court that they would not force any decision upon the second petitioner against her will and that they would abide by her choice and decision as and when she attained the age of majority. They also undertook to care for the second petitioner without restricting her freedom and without subjecting her to any ill-treatment owing to her leaving the parental home without their consent. The writ petition was accordingly disposed of permitting the second petitioner to return to her parental home. 6. While so, Ms. Dolly Shivani, Advocate, filed CM-17710-CWP-2019 under Section 151 CPC, seeking leave to file an application along with her supporting affidavit (CM-17712-CWP-2019), professing to tender her unconditional apology and to expunge/delete the remarks made against her in the order dated 07.11.2019. 7. Ms. Dolly Shivani, Advocate, stated that it was only a gracious act on her part in offering to keep the second petitioner with her but on the same evening, the second petitioner gave her the slip on the pretext of talking to the first petitioner, who was in the Court. 7. Ms. Dolly Shivani, Advocate, stated that it was only a gracious act on her part in offering to keep the second petitioner with her but on the same evening, the second petitioner gave her the slip on the pretext of talking to the first petitioner, who was in the Court. According to her, she had no opportunity at that time to bring this information to the notice of the Court as it was about 5.00 PM. She stated that she was registered on the rolls of the Bar Council in the year 2008 but was in active practice onlysince 2012. She stated that, with her limited experience at the Bar, she did not understand the consequences of the undertaking that she had given to the Court and that she had no malafide intention. It is on this basis that she offered her unconditional apology for the wrong action she had committed, being under bonafide belief that she was serving the interest of her clients. She further stated that, at no point of time, did she have any intention to instigate the commission of any fraud upon the Court and prayed that her unconditional apology be accepted and consequently, the remarks made against her, including the reference of her case to the Bar Council, be expunged/deleted from order dated 07.11.2019. 8. Mr. Rajiv Kataria, learned counsel appearing for Ms. Dolly Shivani, Advocate, reiterated her entreaties and prayed that Ms. Dolly Shivani, Advocate, should be shown mercy at this stage as her career would be ruined. 9. Upon earnest consideration of the matter, this Court deems it apposite, at the outset, to record its distress and concern over the disturbingly debilitative trends that have rooted themselves in the practice of Advocacy these days. Lawyers have forgotten the cardinal principle that they are, first and foremost, officers of the Court and that they should not identify themselves with the cause of their clients to the extent that they lose sight of their primary duty towards the Court, i.e., to uphold its decorum and dignity. It may be noticed that on 06.11.2019, when Ms. Dolly Shivani, Advocate, offered to take the second petitioner, Kiran @ Kirna, to her own house, this Court specifically cautioned her not to undertake such responsibility as it could place her in the dock if events did not pan out as expected. Despite the same, Ms. It may be noticed that on 06.11.2019, when Ms. Dolly Shivani, Advocate, offered to take the second petitioner, Kiran @ Kirna, to her own house, this Court specifically cautioned her not to undertake such responsibility as it could place her in the dock if events did not pan out as expected. Despite the same, Ms. Dolly Shivani, Advocate, stated in open Court that she would not let the second petitioner out of her sight. However, she now states on oath that the second petitioner gave her the slip immediately thereafter and within the Court premises itself. That is the extent of responsibility shown by Ms. Dolly Shivani, Advocate, to the undertaking given by her to the Court. A person who gives an undertaking to the Court and commits breach thereof would ordinarily be liable to be hauled up for contempt under the provisions of the Contempt of Courts Act, 1971. Be it noted, that violation of such an undertaking, as was given in the case on hand, would also interfere with the administration of justice warranting severe consequences. However, this Court was inclined to view it only as a professional misconduct and directed the case of Ms. Dolly Shivani, Advocate, to be referred to the Bar Council of Punjab and Haryana for necessary disciplinary action. 10. At this stage, it would be pertinent to refer to R. K. Anand vs. Registrar, Delhi High Court [(2009) 8 Supreme Court Cases 106]. Therein, the Supreme Court expressed its grave concern and dismay at the decline of ethics and professional standards amongst lawyers and observed that there was a general erosion of professional values amongst lawyers at all levels. The Supreme Court pointed out that lawyers were indulging in practices today that would have appalled their predecessors in the profession barely two or three decades ago. The Supreme Court expressed its concern about the fall in professional norms amongst lawyers with considerable pain and opined that unless the trend was immediately arrested and reversed, it would have deleterious consequences for the administration of justice in the country. The Supreme Court further observed that the judicial system in a democratic society could not work satisfactorily unless it was supported by a Bar that enjoyed the unqualified trust and confidence of the people, that shared the aspirations, hopes and ideals of the people and whose members were monetarily accessible and affordable to the people. 11. The Supreme Court further observed that the judicial system in a democratic society could not work satisfactorily unless it was supported by a Bar that enjoyed the unqualified trust and confidence of the people, that shared the aspirations, hopes and ideals of the people and whose members were monetarily accessible and affordable to the people. 11. Be it noted, a lawyer is under obligation to do nothing that shall detract from the dignity of the Court, of which he is himself a sworn officer and assistant, and he should at all times pay deferential respect to the Judge and scrupulously observe the decorum of the Court (as stated in George Waryelle 's Essays in Legal Ethics). 12. Members of the legal profession are expected to maintain not only high standards of professional morality and ethics but are also expected, as men of education and culture and as members of an honourable profession, to act in an honest, straightforward and upright manner [See The Advocates Act, 1961 (Seventh Edition) by Sanjiva Row - Chapter V -Conduct of Advocates]. 13. In view of the prime position which Advocates occupy in the process of administration of justice and the justice delivery system, the Courts justifiably expect from them a high standard of professional and moral obligation in the discharge of their duties. Any act or omission on the part of a lawyer which interrupts or misdirects the sacred flow of justice or which renders a professional unworthy of the right to exercise the privileges of the profession would amount to misconduct, attracting the wrath of disciplinary jurisdiction........While discharging duty to the Court, a lawyer should never knowingly be a party to any deception, design or fraud........ As responsible officers of the Court, as they are called - and rightly, the counsel have an overall obligation of assisting the Courts in a just and proper manner in the just and proper administration of justice. Zeal and enthusiasm are the traits of success in the profession but over zealousness and misguided enthusiasm have no place in the personality of a professional [See D.P. Chadha vs. Triyugi Narain Mishra and others [(2001) 2 Supreme Court Cases 221]. 14. This being the degree of responsibility cast upon members of the legal profession, it may be noted that Ms. 14. This being the degree of responsibility cast upon members of the legal profession, it may be noted that Ms. Dolly Shivani, Advocate, is not a novice as she admittedly has a standing of over a decade at the Bar. However, she claims that she does not have actual experience as she started active practice only in 2012. Ordinarily, this Court would expect far more from a counsel of her standing but keeping her lack of experience in mind and as she has now tendered an unconditional apology, stating that she is unmarried and fully dependent on her career which is now at stake, this Court is inclined to take a lenient view, albeit reluctantly. The observations made against Ms. Dolly Shivani, Advocate, in the order dated 07.11.2019, extracted supra, shall accordingly stand expunged/deleted from the record. This Court however deems it appropriate to caution Ms. Dolly Shivani, Advocate, that though she is being let off lightly, she may treat this as a warning and strive to improve and maintain her professional conduct and ethics in future. 15. A copy of this order shall be marked to the Bar Council of Punjab and Haryana for its record. 16. The miscellaneous applications are ordered accordingly.