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2023 DIGILAW 1532 (ALL)

Shivanshu Mugdal v. State of U. P.

2023-06-12

SAURABH SRIVASTAVA

body2023
JUDGMENT : 1. Heard Sri Satish Trivedi, learned Senior Counsel assisted by Sri Ajay Kumar Pandey, learned counsel for the applicant and Sri Karunakar Singh, learned AGA. 2. The present application under Section 482 Cr.P.C. has been filed with a prayer to quash the impugned order dated 05.04.2023 passed by the learned Sessions Judge, Agra in Sessions Trial No.235 of 2022 (State vs. Shivanshu Mudgal and others), arising out of Case Crime No.478 of 2021, under Sections 147, 148, 149, 302, 307, 506 IPC at Police Station Shahganj, District Agra. 3. It is the case of the applicant that a first information report has been lodged on 03.11.2021, under Sections 147, 148, 149, 302, 307 IPC at Police Station Shahganj, District Agra in Case Crime No.478 of 2021 by the first informant against 11 accused persons pertaining to the alleged occurrence dated 02.11.2021. 4. On dated 07.01.2022, the opposite party no.2 filed his Vakalatnama to privately oppose the defense in the sessions trial by engaging five Advocates, who are all leading Senior Advocates of the District Court at Agra, two Vakalatnama were filed on the same date wherein a total of ten Advocates were shown to be engaged by the opposite party no.2, again on 22.04.2022 and 20.05.2022, two more Vakalatnama were filed on behalf of the opposite party no.2 showing the engagement of Sri Ashok Kumar Gupta, Sri Shishupal Singh Yadav and Sri Naresh Pal Singh Yadav as his Advocates, opposite party no.2 had virtually engaged the entire Criminal Bar of the District Court at Agra, most of the said Advocates being the leading criminal law practitioner of the District Court at Agra. 5. The very relevant aspect as highlighted by the Senior Counsel appearing on behalf of the applicant that in the aforesaid Vakalatnama dated 07.01.2022, the Advocate Welfare Ticket with the required stamp was not affixed, in which out the five Advocates, the name of Sri Arvind Kumar Sharma, Advocate was also there. 6. The Vakalatnama as submitted by the opposite party no.2 only got the signatures of the Advocate on the Vakalatnama but sofar as Sri Arvind Kumar Sharma, Advocate is concerned, no documents pertaining to the case were provided to him by the opposite party no.2 and neither he was ever instructed to appear on behalf of the opposite party no.2 during the trial. 7. 7. In absence of complete instructions, Sri Arvind Kumar Sharma, Advocate neither opposed the bail application of the accused and nor did he advanced any arguments on behalf of the opposite party no.2, moreover, Sri Arvind Kumar Sharma, Advocate never got any instructions from the opposite party no.2 inasmuch as neither the facts of the case was discussed by the opposite party no.2 with the aforesaid Advocate, nor any documents pertaining to the case were given by the opposite party no.2 and as such, Sri Arvind Kumar Sharma, Advocate who never appeared on behalf of the opposite party no.2 on any date fixed by the learned court concerned at the time of hearing of the trial, only he was engaged on dated 13.02.2023 through Vakalatnama numbered as 47-B on behalf of the applicant by Sri Arvind Kumar Sharma, Advocate and Sri Manish Pathak, Advocate. 8. The co-accused person, namely, Syed Zafar Rizvi @ Shanu also engaged Sri Arvind Kumar Sharma, Advocate along with Sri Manish Pathak, Advocate as their counsels before the Sessions Trial No.235 of 2022 through Vakalatnama dated 03.03.2023 and the said Vakalatnama was numbered as 56-B. 9. The Vakalatnama dated 07.01.2021 as filed by the opposite party no.2 was not only defective but also Sri Arvind Kumar Sharma, Advocate was not being given complete instructions by way of any documents relevant to the case by the opposite party no.2, Sri Arvind Kumar Sharma, Advocate submitted an application on 06.03.2023 before the learned District and Sessions Judge, Agra and the same was numbered as Application No.58-B with the prayer for withdrawal of his Vakalatnama earlier preferred in Sessions Trial No.235 of 2022 on behalf of the opposite party no.2. 10. The abovementioned application was kept pending and no orders were passed thereupon. Under such circumstances, an application was filed by the applicant through his Pairokar Vineet Sharma on 01.04.2023 in the Court of learned District and Sessions Judge, Agra stating therein that the counsel engaged and authorized by him had submitted an application dated 06.03.2023 which has not yet been decided, it was also pointed out in the application dated 01.04.2023 that the opposite party no.2 had filed Vakalatnama dated 07.01.2022 by misleading the Advocates through engaging them inasmuch as the Advocate Welfare Ticket had not been affixed in the said Vakalatnama and therefore, the said Vakalatnama, being defective, was liable to be rejected. 11. 11. While entertaining the Application No.58-B, the same was rejected vide order dated 05.04.2023 which impugned the present application. 12. For substantiating the stand taken up by the learned Senior Counsel, it has been pointed out that the learned trial court absolutely lost sight of the fact that the U.P. Advocates Welfare Fund Act, 1974, inter-alia provides under Section 9(1) of the said Act that every Advocate shall affix on the Vakalatnama accepted by him a Welfare Stamp of the value of ten rupees and no court, tribunal, authority or person shall receive any Vakalatnama in favour of such Advocate unless it is so stamped in addition to any stamp required under any other law for the time being in force. 13. It has been further argued by Sri Satish Trivedi, learned Senior Counsel that Section 5 of the said Act provides that wherein any case the Welfare Stamp referred to in sub-section (1) is not affixed on the Vakalatnama or is not filed by any Advocate, the Court shall not permit such Advocate for further proceeding in that case. 14. It has also been contended by learned Senior Counsel that learned trial court miserably failed to appreciate that without effective and genuine representation by a counsel on his behalf, the applicant could not be afforded a fair trial. 15. As a corollary to the aforesaid, it is submitted that engagement of Sri Arvind Kumar Sharma, Advocate by the opposite party no.2 was a farce, sham and was illusory and he had not been genuinely and effectively engaged by the opposite party no.2. 16. With regard to the aforesaid question, the matter was also deliberated upon by the Bar Council of U.P. and it was decided vide order dated 05.04.2023 that under the circumstances, permission to withdraw the Vakalatnama was granted to Sri Arvind Kumar Sharma, Advocate and he was further granted permission to appear on behalf of the accused/applicant before the Sessions Trial No.235 of 2022, the order dated 05.04.2023 passed by the Bar Council of U.P. is appended along with the present applicant as Annexure-12 available at Page No.139. 17. Even after considering all the vital facts as narrated by learned Senior Counsel appearing on behalf of the applicant, learned court of District and Sessions Judge, Agra rejected the prayer of the applicant vide order dated 05.04.2023 which impugned the present application under Section 482 Cr.P.C. 18. 17. Even after considering all the vital facts as narrated by learned Senior Counsel appearing on behalf of the applicant, learned court of District and Sessions Judge, Agra rejected the prayer of the applicant vide order dated 05.04.2023 which impugned the present application under Section 482 Cr.P.C. 18. Per contra, Sri Karunakar Singh, learned Additional Government Advocate-I vehemently opposed the prayer as made in the present application on the ground that once the Vakalatnama has been executed by learned counsel, the prayer for withdrawing the same, was rightly rejected by the learned District and Sessions Judge, Agra. 19. Considering the prayer as made in the application, after hearing the learned counsels for rival parties at length, certain questions available to be answered by this Court pertaining to the instant matter are as under:- (i) Whether Sri Arvind Kumar Sharma, Advocate was entitled to withdraw his Vakalatnama which has already been executed in favour of the opposite party no.2? (ii) The essential ingredient for establishing a relation of an Advocate and client is mere signing the Vakalatnama? (iii) Effect of Section 9 of the U.P. Advocates Welfare Fund Act, 1974 in the instant matter? 20. Sofar as regarding the first question, it is crystal clear that in a random and fashionable manner, signatures of so many Advocates have been taken on different Vakalatnama and the same have already been submitted before the sessions trial wherein one of the counsel was Sri Arvind Kumar Sharma, Advocate, in pursuance of the execution of Vakalatnama, no brief has ever been given in shape of relevant documents and papers by the opposite party no.2 to Sri Arvind Kumar Sharma, Advocate. More so, Sri Arvind Kumar Sharma, Advocate never appeared and argued the matter on behalf of the opposite party no.2 before the learned trial court and as such, the Vakalatnama cannot be treated merely a piece of paper which creates right of holding for certain Advocates from appearing on behalf of the opposite party, in absence of any specific instructions, the counsel cannot be treated as bonded and handcuffed to the client who sought signatures over Vakalatnama, which was itself defective in nature, since the same was not having the Advocate Welfare Ticket. 21. 21. Answering the second question as mentioned above, the essential ingredients which are required for establishing the relationship of client and Advocate are the discussion of the matter for which the Advocate is going to appear before any court of law for protecting the interest of his client by way of assisting the court on the basis of relevant documents and the correct proposition of law. In the instant matter, it is admitted case of both the parties that at no point of time, any brief or documents has ever been handed over from the opposite party no.2 to Sri Arvind Kumar Sharma, Advocate and as such, only by obtaining the signatures over the defective piece of paper cannot establish a relation between the client and his counsel. 22. Ultimately, the legal question which involves the crux of the matter and vital to be adjudicated in pursuant to the controversy as raised through the instant application preferred under Section 482 of Cr.P.C., for ready reference, the extract of the Section 9 of the U.P. Advocate Welfare Fund Act, 1974 are reproduced hereinbelow:- "9. Welfare stamp on Vakalatnama. - (1) Every member of the Scheme shall affix on the Vakalatnama accepted by him a Welfare Stamp of the value of five rupees in the case of Vakalatnama filed in the High Court or a Tribunal or any other authority or person and two rupees in any other case and no court, tribunal, authority or person shall receive any Vakalatnama in favour of such member unless it is so stamped in addition to any stamp required under any other law for the time being in force. (2) The value of the Welfare Stamp shall neither be taxable cost in the suit or proceeding nor be collected in any event from a party to such suit or proceeding. (3) Any contravention of the provisions of sub-section (2) by any member shall disentitle him to the benefits of the Scheme and shall be deemed to be a misconduct and the Trustees Committee shall report the matter to the State Bar Council for appropriate action. (4) Every Welfare Stamp affixed on a Vakalatnama under sub-section (1) shall be cancelled in the manner provided in Section 30 of the Court Fees Act, 1870. (4) Every Welfare Stamp affixed on a Vakalatnama under sub-section (1) shall be cancelled in the manner provided in Section 30 of the Court Fees Act, 1870. (5) wherein any case the Welfare Stamp referred to in sub-section (1) is not affixed on the Vakalatnama or is not filed by any Advocate the Court shall not permit such Advocate for further proceeding in that case." 23. By bare perusal of the Section 9(5) of the said Act, it is crystal clear that in case the Welfare Stamp referred to in sub-section (1) is not affixed on the Vakalatnama or is not filed by any Advocate, the Court shall not permit such Advocate for further proceeding in that case, meaning thereby, if the Advocate Welfare Stamp is absent from the Power/Vakalatnama submitted before the court concerned, the Vakalatnama signed by the concerned Advocate cannot be permitted to proceed in the matter and as such, in absence of Advocate Welfare Stamp from the Vakalatnama which has been submitted by the opposite party no.2 before the learned trial court, no counsel who put his signatures over the same, is permitted to proceed in the matter. 24. The abovementioned factual and legal points were undiscussed by the learned District and Sessions Judge, Agra while passing the order dated 05.04.2023 which is under challenge in the instant application. 25. The arguments as raised by learned Senior Counsel appearing on behalf of the applicant is also relied upon the judgment passed by Hon'ble the Apex Court in the case of Supreme Court Bar Association Vs. Union of India and another [Writ Petition (Civil) 200 of 1995, decided on 17.04.1998] wherein it has been held that this court cannot in exercise of its jurisdiction under Article 142 read with Article 129 of the Constitution, while punishing a contemner for committing contempt of court, also impose a punishment of suspending his licence to practice, where the contemner happens to be an Advocate. Such a punishment cannot even be imposed by taking recourse to the appellate powers under Section 38 of the Act while dealing with a case of contempt of court (and not an appeal relating to professional misconduct as such). To that extent, the law laid down in Re: Vinay Chandra Mishra, (1995) 2 SCC 584 is not good law and we overrule it. 26. To that extent, the law laid down in Re: Vinay Chandra Mishra, (1995) 2 SCC 584 is not good law and we overrule it. 26. An Advocate who is found guilty of contempt of court may also, as already noticed, be guilty of professional misconduct in a given case but it is for the Bar Council of the State of Bar Council of India to punish that Advocate by either debarring him from practice or suspending his licence. 27. In the instant matter, there was hardly any occasion available before the learned District and Sessions Judge, Agra to comment upon the conduct of an Advocate while adjudicating the application for withdrawal of Vakalatnama preferred by Sri Arvind Kumar Sharma, Advocate, since the same application has already been allowed by the Bar Council of U.P. and as such, the matter was out of judicial ambit of learned District and Sessions Judge, 28. In view of the aforementioned facts and circumstances, the order dated 05.04.2023 passed by the learned District and Sessions Judge, Agra is hereby quashed and set aside. 29. The present application stands allowed accordingly.