Case BriefsSupreme Court

Supreme Court: The 3-Bench comprising of Uday Umesh Lalit, S. Ravindra Bhat and P.S. Narasimha, JJ., issued notice to Madhya Pradesh government on being appraised that there is a policy of incentivising public prosecutors for obtaining capital punishments in matters prosecuted by them.

Noticeably, a petition was filed before the Court alleging that the State is granting incentives to public prosecutors on the basis of death sentence awarded in matters prosecuted by them. Assessing the gravity of allegation the Court on 29-03-2022 had issued direction to the Registry to register a Suo Motu case and change the cause title immediately.

Siddhartha Dave, Senior Advocate and K. Parameshwar, Advocate was appointed as Amicus Curiae to assist the Court in the Matter. Additionally, the Court had also heard K.K. Venugopal, Attorney General for India, Siddharth Agarwal, Advocate, representing Project-39A, Gaurav Agrawal, Advocate for NALSA and Rukhmini Bobde, Advocate representing State of Madhya Pradesh.

Accepting the Attorney General’s proposal to place on record relevant material pertaining to other jurisdictions to assist the Court in deciding the matter, the Bench has granted liberty to all the counsels engaged in the instant matter to place on record any material that would render assistance to the Court.

Considering that the matter required consideration at an early date, the Bench issued additional directions to the counsels that the needful be done within 10 days.

The State was directed to place on record the concerned Policy along with submissions in support of said Policy. The matter is listed on 10-05-2022 for further hearing.

[Irfan v. State of M. P., Writ Petition (Cri) No. 142 of 2022, order dated 22-04-2022]


Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsHigh Courts

Bombay High Court: Anuja Prabhudessai, J., expressed that an advocate as an Officer of the Court is under an obligation to maintain the dignity and decorum of the Court. There is no room for arrogance and there is no license to intimidate the Court, make reckless accusations and allegations against a Judge and pollute the very fountain of justice.

The applicant had circulated the matter for urgent listing and when the Court raised a query about whether there was any urgency as to take the matter out of turn, the applicant’s counsel, Anjali Patil went totally off the tangent and made allegations that this Court was giving priority to certain matters and to certain advocates and this insinuated that the Court was not fair and biased.

Further, it was also complained by the counsel that the litigants do not get justice from the Court.

She threatened that she would lodge a complaint before the Chief Justice about conduct of this Court and further sought time to place the facts on record on an affidavit.

“Advocate has every right to protect interest of his/her clients. An advocate is answerable to his/her clients and the frustration of an advocate when the matter gets adjourned for whatsoever reason or does not reach the board is understandable.”

High Court remarked that, Anjali Patil, Advocate for the applicant grossly overstepped the limits of propriety when she made imputations of partiality and unfairness in the open Court. Her conduct was highly unprofessional and unbecoming of an advocate.

Lastly, the Bench stated that,

“It has to be borne in mind that casting scurrilous aspersions not only has the inevitable effect of undermining the confidence of the public in the judiciary but also has the tendency to interfere with the administration of justice.”

[Dipak Kalicharan Kanojiya v. State of Maharashtra, 2022 SCC OnLine Bom 872, decided on 19-4-2022]


Advocates before the Court:

Ms. Anjali Patil i/b. Nouman Shaikh for the Applicant.

Mr. S.H. Yadav, APP for the State.

Case BriefsHigh Courts

Bombay High Court: Stating that it is the duty of every Advocate to uphold professional integrity so that citizens can legally secure justice, the Division Bench of V.M. Deshpande and Amit B. Borkar, JJ., expressed that, professional misconduct refers to its disgraceful conduct not befitting the profession concerning the legal profession, which is not a business or trade and therefore, it must remain decontaminated.

Applicants had invoked the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure challenging the registration of FIR for an offence punishable under Sections 420, 406, 409 and 120B of the Penal Code, 1860 read with Section 3 of the Maharashtra Protection of Interest of Depositors (In Financial Establishments) Act, 1999.

It was submitted that applicants and non-applicant 3 resolved their dispute amicably and therefore, the Court proceedings were required to be set aside.

Factual Scenario


Post-dated cheques for the amount to be paid to non-applicant 3 by the applicants were handed over to Advocate Anilkumar Mulchandani. Further, it was added that, till 23-3-2022, the post-dated cheques were not handed over to non-applicant 3.

During the course of hearing, Anilkumar Mulchandani, Advocate submitted that non-applicant 3 had not demanded post-dated cheques from him.

Issue


Whether the non-applicant 3, in fact, demanded the cheques or not and whether Anilkumar Mulchandani, Advocate refused to hand over the cheques to non-applicant 3?

Analysis, Law and Decision


Bench in view of the clear language of the Deed of Settlement (absence of clause to withhold post-dated cheques till the release of the applicant on bail or quashing of FIR) and considering the affidavit filed by the non-applicant no. 3 denying the grant of permission to withhold cheques till the release of the applicant on bail or quashing of FIR, prima facie, it appears that Shri Anilkumar Mulchandani, Advocate, had refused to hand over the cheques in spite of demand made by non-applicant 3.

Since Anilkumar Mulchandani, Advocate was not justified in keeping the post-dated cheques with him, the Court expressed that it is constrained to refer the present case to the Bar Council of Maharashtra and Goa to hold an inquiry as to whether the act of the Advocate withholding post-dated cheques, amounts to misconduct within the meaning of Section 35 of the Advocates Act, 1961?

High Court remarked that,

“We are perturbed by the act of the Advocate to keep valuable security owned by the Client with him.”

The term misconduct means wrongful gain and not ere error of judgment.

One of the main objectives behind Section 35 of the Advocates Act is to prevent the exploitation of clients at the receiving end of the Advocate’s services and maintain the legal profession’s integrity.

The Bench also observed that, the lawyer-client relationship is a fiduciary one; any act which is detrimental to the legal rights of clients needs to be punished.

The Supreme Court explored the amplitude and extent of the words “professional misconduct” in Section 35 of the Advocates Act in the case of Pralhad Saran Gupta v. Bar Council of India, (1997) 3 SCC 585, wherein the Supreme Court has held that retaining amount by the Advocate which is deposited with him on behalf of the decree-holder amounts to misconduct.

Elaborating further, the High Court opined that while dealing with money or any other articles or documents entrusted with the Advocate, he is expected to keep in mind the high standards of the professions and its value practised for centuries.

The Advocates owe a social obligation to the Society while discharging professional services to the litigant. The Advocate should not commit any act by which a litigant could be deprived of his statutory and constitutional rights on account of the sublime position conferred upon him under the judicial system in the country.

On noting the above, the Bench directed the Bar Council of Maharashtra and Goa to hold an inquiry into the allegations made by non-applicant 3 against Advocate Anilkumar Mulchandani.

As the applicants sought permission to withdraw the present application unconditionally, Court disposed of this application as withdrawn. [Pankaj v. State of Maharashtra, 2022 SCC OnLine Bom 771, decided on 6-4-2022]


Advocates before the Court:

Shri Anil Mardikar, Senior Advocate a/w. Shri P. V. Navlani & Shri Rommill Jain, Advocate for applicants.

Shri T. A. Mirza, APP for non-applicant nos. 1 and 2/State.

Shri Anilkumar Mulchandani, Advocate for non-applicant no. 3.

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench of Mohammad Rafiq CJ. and Jyotsna Rewal Dua JJ. disposed of the petition and directed to approach State Bar Council.

The instant writ petition was filed by Ms. Manisha, a practitioner Advocate of this Court, praying for a direction to the respondent-State to consider her application for grant of stipend to her as well as to those Advocates, who have not completed three years of practice on account of Covid-19.

The Court relied on Pawan Prakash Pathak v. Bar Council of India, Writ Petition (Civil) Diary No(s). 10949/2020 titled as wherein the petitioners therein were set at liberty to approach the Bar Council of India, who in turn should consider assisting its brethren, keeping in view the prevailing situation.

The Court observed that none appeared for the petitioner, when the matter was listed on the last date of hearing. Today again nobody has put in appearance on behalf of the petitioner, obviously, because of the fact that the Covid situation has eased now. The petitioner seems to have lost interest in prosecuting the present petition.

The Court thus held in view of the observations made by the Hon’ble Supreme Court is required to approach the Bar Council of Himachal Pradesh for redressal of her grievance and that the State could not be required to pay the additional stipend available with them.”

[Manisha v. State of HP,  2022 SCC OnLine HP 1107, decided on 04-04-2022 ]

Appearances:

For respondent- Mr. Ashok Sharma and Mr. Nand Lal Thakur

 


*Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Madras High Court: The Division Bench of K. Kalyanasundaram and R. Hemalatha, JJ., expressed that, the Government advocate being the representative of the Government has to act in an honest manner. If he/she goes around with the intention to make money at the cost of justice, only chaos will prevail.

Petitioner sought for quashing the impugned order in which her services as Special Public Prosecutor was terminated with immediate effect.

According to the petitioner, she was sincere and hardworking and out of 439 cases disposed, she was instrumental in ensuring conviction and severe punishments in 16 cases which was widely appreciated by the Police, Bench and Bar. However, according to her an anonymous complaint against her casting aspersions on her honesty and integrity was taken cognizance by the then-District Collector (2nd respondent).

On the report of the Superintendent of Police (3rd respondent) and the District Collectors’ findings, the State Government (1st respondent) terminated the services of petitioner, which according to the petitioner was unjust and unreasonable.

High Court’s Findings

Bench noted that there were allegations of corruption made against the petitioner which were true and that she had also misused her position by extracting menial work from the police constables on Court duty. Earlier, a ‘road roko’ agitation by the Advocates in order to remove the petitioner from her post also occurred.

It was further found that in a POCSO case, the petitioner had received illegal gratification from the accused and ensured their acquittal on flimsy grounds was referred to by the District Collector.

Amongst a few letters against the petitioner, in one of the letters, there was mention of the corrupt practices of the petitioner and how she had tried to convince the victim and their parents in the POCSO case to compromise with the accused by receiving compensation.

A famous quote is “truth is like the sun. You can shut it out for a time, but it ain’t going away.” 

High Court stated that,

Every Advocate is a Court officer and part and parcel of the justice delivery system. The public reposes great faith in the judiciary but the judges have to rely on their pillars, the advocates.

Bench found from the records that the petitioner had been demanding bribes and acted like an extra-constitutional authority attempting to fix up compromises in serious cases of offence and this caused a serious dent in the justice delivery system.

Lastly, the Court found no violation of natural justice nor any fundamental rights.

Therefore, in view of the above, a petition was dismissed. [Dhanalakshmi v. State, 2022 SCC OnLine Mad 1275, decided on 22-3-2022]


Advocates before the Court:

For Appellant: Mr P. Subba Reddy

For Respondents: Mrs V.Y amuna Devi Special Government Pleader

Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of Sanjay Kishan Kaul and M.M. Sundresh, JJ., issued notice to BCI to respond to suggestions made before the Court at the earliest with regard to introducing changes in Bar examination.

The instant appeal was filed by Bar Council of India (BCI) to assail the impugned order of the Gujarat High Court wherein the High Court had read down Rules 1 and 2 respectively of the Bar Council of Gujarat (Enrollment Rules) under Section 28(2)(d)  read with Section 24(1)(e) of the Advocates Act, 1961so as to read that a person may be either in full or part time service or employment or is engaged in any trade, business or profession, who otherwise is qualified to be admitted as an Advocate shall be admitted as an Advocate, however, the enrollment certificate of such a person shall be withheld with the Bar Council and shall lie in deposit with the Council until the concerned person makes a declaration that the circumstances mentioned in Rule 2 have ceased to exist and that he or she has started his/her practice.

Noticeably, Rule 1 and Rule 2 of the Bar Council of Gujarat (Enrollment) Rules provide prohibition from admission of a person who is otherwise qualified to be admitted as an advocate, but is either in full or part time service or employment or is engaged in any trade, business or profession, as an advocate. Noting the impracticality of the requirement to resign from work even before appearing for the exam, the High Court had remarked,

“The lady is in a helpless situation. Today, if she gives up her job being a single mother, and god forbid if she is unable to clear the All India Bar examination, then she would be left without any means of livelihood.”

As the case reached the Supreme Court, following interesting suggestions were made by the parties:

  1. Instead of reading down the Rules, suggestions were made to avoid link between enrollment and ability to take exams.
  2. It is a difficult decision of economic necessity for those in jobs to resign from job to write bar examination.
  3. It was debated by the BCI that persons in job wanting to take the Bar exam cannot be given provisional enrolment, however, a roll number can be issued to take the examination and that exam should be treated in furtherance the aspect of enrollment as and when it arises.
  4. A suggestion was made that succeeding in bar exam cannot give liberty to indefinitely postpone decision to seek enrollment or not. Thus, the result of the Bar exam, if successful, would hold good for three years within which the candidate can take the choice and if he continues his job for a longer period of time, he may be again required to take the Bar exam at the appropriate stage, as such long hiatus period may otherwise snap the link.
  5. Amicus Curiae K. V. Vishwanathan has suggested that there can be a viva exam for such candidates.
  6. Emphasis was also made on a more monitored process by the BCI to ensure that a law college which obtain recognition once, does not rest on that and maintain the parameters as set forth by the Bar Council.
  7. Instead of focusing on a rote ability, the Bar exam should focus on analytical thinking process to make the process of enrolment more meaningful.
  8. To restrain the candidates from taking advantage of random answers made without any consequence of a wrong answers, suggestion was made to introduce 1/4th negative mark for every wrong answer. However, the same need not be uniform throughout the paper but in certain nature of questions posed, and should be introduced in that particular section. Amicus Curiae pointed out that in UK the exams are based on the ‘Miller Pyramid Scheme’ of evaluation in all aspects of reading, writing, expression and communication of a prospective Bar entrance is evaluated. In USA some questions are marked with no provision of negative marking and there may be questions, in the very nature of things there, there may be more than one answer possible.
  9. Lastly, emphasis was also placed on evolving a fair system for juniors to find placement in chambers.

Considering the aforementioned suggestions, the Bench directed BCI to on the aforesaid process with expedition and issue instructions to S.N. Bhatt, senior counsel for BCI before next date of hearing. The matter is listed on 12-04-2022 for further hearing.

[Bar Council of India v. Twinkle Rahul Mangaonkar, C.A. No(s). 816-817 of 2022, decided on 15-03-2022]


Appearance by:

Amicus Curiae: K.V. Vishwanathan, Sr. Advocate

Others Present: R. Venkatraman, Amartya Sharan, Rahul Sangwan, M.G. Aravind, Chanakya Dwivedi, K. Sivagnanam, Advocates

For Appellant(s): S.N. Bhatt, Sr. Advocate, Durga Dutt, AOR, N.P.S. Panwar, D.P. Chaturvedi, Tarun Kumar Thakur, Parvati Bhat, Advocates

For Respondent(s): Anushree Prashit Kapadia, AOR, Megha Jani, Priyanka Rathi, Advocates


Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsHigh Courts

Delhi High Court: While expressing its opinion on the position of an advocate in law, C. Hari Shankar, J., expressed that,

There is, after all, a duty that we all owe, to ourselves, higher than that owed to the client, the brief, the opposite party, or even the court. The conscience of the Counsel should be the last sounding board.

Background

The case set out in the applications, qua the involvement of Mr Singhal, Advocate was that Mr Singhal was a close friend of the family and closely associated with Mr L.R. Kapur, late father of the parties in the disputes.

Senior Counsel, Rajeev Virmani, submitted that his client was completely unaware of the involvement of Mr Singhal in the proceedings.

In 2017, the applicant received a legal notice from Advocate M.K. Dhingra who purported to represent the clients on whose behalf Mr Singhal was appearing.

Following the said notice, CS (OS) 188/2018 was filed by Mr Dhingra before this Court, on behalf of the said parties. Mr Singhal appeared on behalf of Mr Dhingra in the said proceedings. It was only thereafter, Mr Virmani, submitted that the applicants came to know that Mr Dhingra was actually a chamber junior/associate of Mr Singhal.

On learning the above fact, the applicants, in October, 2019, filed IA 3869/2019 (one of the applications being decided here) for a direction to Mr Singhal not to represent the plaintiff in CS (OS) 188/2018.

It was contended that Mr Singhal has acted as a mediator among the parties and the parties, including the applicants in the present case, had exchanged confidences, with respect to the dispute, with Mr Singhal.

Further, Mr Virmani submitted that, despite the pointed allusions in the application to the specific occasions and instances on which Mr Singhal had met the parties and had come to learn of confidential details regarding the dispute and even acted as a mediator, there was no clear denial, to the said facts, in the reply filed by Mr Singhal.

Analysis, Law and Decision

High Court expressed that,

There can be no gainsaying the position in law that an advocate owes, to the litigating public, the Court, his client and to the opposite parties, the highest degree of probity and transparency.

Adding to the above, Court elaborated stating that,

There can be no dispute with the proposition that, where the Court finds that the appearance of an advocate, before it, is not in keeping with the standards expected of the legal profession and is likely to prejudice a fair espousal and prosecution of the lis, the Court can step in and restrain such appearance.

Bench opined that the Court has power to restrain a person from appearing in the proceedings as an advocate on behalf of one or the other party, if it feels that such appearance would be illegal or even improper.

If an advocate has earlier acted, qua the lis between the parties, in judicial or quasi-judicial capacity or even as a mediator, the Court can certainly injunct him from appearing as an advocate in the matter before it. Equally, if the concerned advocate has advised one or the other party or has been a repository of confidences between the parties, the court may, in an appropriate case, direct that he should not represent the parties before the Court. Such directions, if issued, are essentially intended to allow the purity of the stream of justice to remain unsullied, and are, therefore, fundamentally ex debito justitiae.

Reply filed by the defendants through Mr Singhal denied the allegations that Mr Singhal acted as a mediator between the parties or advised the parties in the instant litigations or was a repository of confidence between them.

On perusing the material on record, Court stated that it was not in a position to pass an order of restrain since the standard of material that was required for such order to be passed was lacking. The Court was also of the opinion that Rules 13 and 15 of Volume V, Chapter VI of the Delhi High Court Rules, cited by the applicant, were not applicable to the instant case.

Court also found that Mr Singhal admitted his association with the family and the fact that he had handled cases on their behalf, along with this, he also admitted that in the meeting in which he was associated present case was subject matter of consideration. Though nothing indicated that in connection with the present case, the meeting had taken place in which Mr Singhal participated, irrespective of whether the exact nature of the dispute and the facts were or were not, discussed.

Lastly, the Bench concluded by expressing that,

it would be advisable for Mr Singhal, as a member of a profession which aspires, at all times, to nobility, to introspect, and consider whether his continued appearance in the present matter was in consonance with the highest degree of probity that he, as an advocate, was expected to maintain.

On that note of advice, the application was dimissed.[Sandeep Kaur v. Janak Kapur, 2021 SCC OnLine Del 5211, decided on 6-12-2021]


Advocates before the Court:

Mr. Rajeev Virmani, Sr. Adv. with Mr. Jai Sahai Endlaw, Mr. Shivek Trehan, Mr. Rajat Soni, Mr. Pranay Mohan Govil & Mr. Subhoday Banerjee, Advs. along with Mr. Sandeep Kapur (Plaintiff)

Ms. Niharika, Adv.
Mr. Ashish Kumar, Adv.
Mr. S.C. Singhal, Adv.
Mr. S.C. Singhal, Adv.
Mr. Rajeev Virmani, Sr. Adv. with Mr. Jai Sahai Endlaw, Mr. Shivek Trehan, Mr. Rajat Soni, Mr. Pranay Mohan Govil & Mr. Subhoday Banerjee, Advs. along with Mr. Sandeep Kapur (Defendant 1)

Ms. Niharika, Adv.

Mr. Ashish Kumar, Adv.

Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., observed that an advocate who is engaged by a client has to play only one role, either of the advocate in the proceedings or the power of attorney holder.

Question for Consideration

Whether Mr Amarjeet Singh Sahni, who was acting as the power of attorney holder of the plaintiff, Mr Amit Ved/Plaintiff/Respondent and had verified the plaint on behalf of the said plaintiff could appear also as a counsel in the matter?

High Court made it clear that the practice of advocates acting as power of attorney holders of their clients, as also as advocates in the matter is contrary to the provisions of the Advocates Act, 1961.

Any advocate who is engaged by a client would have to play only one role, i.e., that of the advocate in the proceedings and cannot act as a power of attorney holder and verify pleadings and file applications or any other documents or give evidence on behalf of his client. This aspect has to be scrupulously ensured by all the Trial Courts.

Plaintiff Mr Amit Ved was a resident of Bangkok, Thailand. Mr Sahni claimed to be his power of attorney holder. Mr Sahni verified the plaint and all other pleadings on behalf of Plaintiff. He was also appearing as the counsel for Plaintiff which would be impermissible. However, since in the present case, Mr Sahni assured the Court that he would no longer act as an advocate in the matter, no further observations were being passed in this regard.

Since this Court has perused the original MoU and both Mr Pankaj and Mr Sahni, confirmed that the MoU/Deed of Settlement were executed, the petitions are disposed of as the disputes have been settled.

In view of the above, parties have been directed to appear before the trial court on the date fixed i.e. 28-01-2022 for presenting the settlement and for the recording of the same. [Anil Kumar v. Amit, 2021 SCC OnLine Del 5020, decided on 17-11-2021]

Appointments & TransfersNews

Supreme Court Collegium has, on reconsideration, resolved to reiterate its earlier recommendation for the elevation of  Sachin Singh Rajput, Advocate, as Judge in Chhattisgarh High Court.


Supreme Court of India

[Collegoum Statement]

Appointments & TransfersNews

Supreme Court Collegium has approved the proposal for elevation of the following persons as Judges in the Andhra Pradesh High Court:

ADVOCATE:

Dr K. Manmadha Rao

JUDICIAL OFFICER:

B.S. Bhanumathi


Supreme Court of India

Appointments & TransfersNews

Supreme Court Collegium has approved the proposal for the elevation of Shri Saurabh Kirpal, Advocate, as Judge in the Delhi High Court.


Supreme Court of India

[Collegium Statement]

 

Case BriefsHigh Courts

Patna High Court: Rajeev Ranjan Prasad, J., denied bail to the advocate booked for allegedly misappropriating his client’s money and committing breach of trust being an attorney. The Bench stated,

“Despite repeated caution made to learned counsel for the appellant that the appellant being an Advocate must come out with a fair stand even at this stage, there is no change of stand.”

The appellant was seeking to set aside the order of the Trial Court with regard to the offence under Sections 406, 420 of the Penal Code, 1860 and Sections 467, 468, 471, 120(B) of the Indian Penal Code and Section 3(r)(s) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, by which the prayer of the appellant for his release on bail had been rejected.

The appellant, who was an Advocate, had filed a case in the Railway Claims Tribunal on behalf of one Lalan Pasi for compensation under Section 125 and Section 16 of the Railway Act. The Tribunal allowed claim and directed the State to grant Rs. 8 Lakhs with interest at the rate of 9% to the claimant. Accordingly, a sum of Rs. 4 Lakhs was to be transferred in the account of Smt. Sanjhariya Devi (mother of the deceased). Accordingly, a joint account was opened and a sum of Rs. 10,52,000/- was transferred to the said account.

The case of the prosecution was that the appellant, taking advantage of his position as an Advocate of the victims/claimants withdrew the whole amount from the joint account of Lalan Pasi which was awarded as compensation to Lalan Pasi and Sanjhariya Devi on account of the death of their only son Gorakh Pasi.

Contesting the bail appeal, the State submitted that the act of the appellant robbing his client, being an Advocate was highly condemnable and the allegation against him were serious in nature when considered from the point of view of the professional ethics of an Advocate and the duty cast upon him towards his client.

Observing that, despite repeated caution to return the entire amount to the claimant, the appellant was reluctant to do so and was only willing to return a sum of Rs. 5 lakhs, the Bench stated that the appellant being an Advocate must come out with a fair stand.

In the light of the above, the Bench held that since the appellant being an Advocate had allegedly committed a breach of trust and had misappropriated his client’s money and was not ready to return the money which belonged to his clients, his case was not fit for bail.[Santosh Kumar Mishra v. State of Bihar, Cr. Appeal (Sj) No.3564 of 2021, decided on 27-10-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance:
For the Appellant/s: Mr.Ajit Kumar, Advocate
For the Respondent/s: Ms. Usha Kumari – 1, Special P.P.

Appointments & TransfersNews

President of India, in exercise of the power conferred by clause (l) of Article 217, Article 224 and Article 222 of the Constitution of India, after consultation with the Chief Justice of India, has made the following appointments/transfers:

No. Name (S/Shri) Name of High Court
1. Uma Shanker Vyas, Judicial Officer As Judge of the Rajasthan High Court.
2. Vikram D Chauhan, Advocate As an Additional Judge of the Allahabad High Court.
3. Shri Justice Joymalya Bagchi, Judge Transferred from Andhra Pradesh HC to Calcutta HC.

Ministry of Law and Justice

Notification dt. 25-10-2021]

Case BriefsHigh Courts

Delhi High Court: V. Kameswar Rao, J., refuses to grant relief to the claimant who urged to include 10 years of practice as an advocate for the purpose of calculating pension in addition to qualifying service as Judicial Member of Railway Claims Tribunal.

Petitioner submitted that he was enrolled as an Advocate with the Bar Council of Delhi and also cleared the exam for Advocates on Record and was duly enrolled on October 15, 1998.

In 2015 he was appointed to the post of Member (Judicial) Kolkata Bench of Railway Claims Tribunal (RCT). Then in 2016, he was transferred to the Secunderabad Bench of the RCT where he worked till January 19th. Thereafter, he was transferred to Gauhati Bench of the RCT where he worked till, he completed 5 five years’ tenure on April 21, 2020.

He stated that in terms of Section 5 of the Railway Claims Tribunal Act, 1987, which stipulated qualifications for appointment as Chairman, Vice-Chairman and other Members; a person shall not be qualified for appointment as a Judicial Member unless he is, or has been, or is qualified to be a Judge of a High Court.

According to the petitioner, in view of the above-said provision, he was selected for the post of Judicial Member RCT being found as qualified to be a Judge of a High Court and as per Article 217 of the Constitution of India, the qualifications needed for appointment to the post of a Judge of a High Court, was that one must have at least 10 years of practice as an Advocate.

Primary Claim:

Claim was with regard to counting of 10 years of practice as an Advocate for the purpose of calculating pension in addition to qualifying service of the petitioner as Judicial Member of the RCT, for pension.

Question of Consideration:

Whether the petitioner is entitled to the counting of 10 years of practice at the Bar, along with the qualifying period put in by him as Judicial Member in RCT?

Analysis, Law and Decision

High Court stated that the Supreme Court’s decision in Government of NCT of Delhi v. All India Young Lawyers Association, (2009) 14 SCC 49, was concerning the Officers of the DHJS, who were appointed to the service, being Advocates practicing at the Bar. Supreme Court while reducing the period from 15 years to 10 years did not interfere, with respect to the grant of benefit of counting of the period of practice put in by an Advocate.

Bench stated that joining the service between the ages of 35 to 45 years, a DHJS Officer puts in at least 15 years of service before demitting the office, which was not the case here, since the appointment of the petitioner was only for a period of 5 years and upon completion of 5 years, he demitted the office.

Therefore, his plea that he was qualified to be a High Court Judge, was appointed as Judicial Member and as such 10 years of practice at the Bar needed to be counted for the pension was unmerited, for the reason that the pension as a Member (Judicial) shall still be governed by the Rules of 1989.

Sr. Panel Counsel, Jagjit Singh during his submission had drawn the attention of the Court towards the Supreme Court decision in Madras Bar Assn. v. Union of India, WP (C) No. 804 of 2020, 27-11-2020 wherein the Supreme Court while considering the Tribunal Rules of 2020, which were notified on 12-02-2020, held Chairpersons, Vice-Chairpersons and Members of the Tribunals appointed prior to 12-02-2020 shall be governed by the parent Statutes and Rules as per which, they were appointed.

Therefore, since the petitioner was appointed prior to 12-2-2020, terms and conditions of appointment of the petitioner as Judicial Member RCT shall necessarily be governed under the Rules of 1989.

In view of the above petitioner was not entitled to any relief. [Ajit Kumar Pande v. Union of India, 2021 SCC OnLine Del 4590, decided on 4-10-2021]


Advocates before the Court:

For the Petitioner: In-person

For the Respondent: Jagjit Singh, Sr. Panel Counsel with Mr Preet Singh, Mr Vipin Chaudhary & Ms Rashmi Malhotra, Advs.

Appointments & TransfersNews

Elevation of an Advocate as Judge in Punjab and Haryana High Court


Supreme Court Collegium has approved the proposal for the elevation of Shri Sandeep Moudgil, Advocate, as Judge in the Punjab & Haryana High Court.


Supreme Court of India

[Collegium Statement dt. 29-9-2021]

Case BriefsSupreme Court

Supreme Court: A Division Bench of Sanjay Kishan Kaul and M.M. Sundresh, JJ. dismissed a writ petition filed by an advocate seeking to stall elevation of a judicial officer as a Judge of the Telangana High Court. The Supreme Court said that the petition was a gross abuse of the process of law and imposed costs of Rs 5 lakh on the petitioner.

The petitioner, B. Sailesh Saxena, is an advocate enrolled with the Bar Council of Telangana since the year 2000. He filed the instant petition seeking a writ of mandamus or an appropriate writ, order or direction directing the Union of India, State of Telangana and Registrar (Vigilance & Administration) of the Telangana High Court to consider his representation and take necessary action as per law. In effect, the petitioner stated that the recommendation of Venkateswara Reddy, Registrar General of the Telangana High Court should not be processed for elevation as a Judge of the High Court. The petitioner made various allegations against the Registrar General and other persons.

Proceedings before the High Court

The Supreme Court took notice of the writ petition filed by the petitioner before the Hyderabad High Court which was decided vide B. Sailesh Saxena v. Union of India, 2018 SCC OnLine Hyd 267. The Supreme Court discussed the ramifications of that judgment.

In that petition, the petitioner claimed that he was a legal advisor for the family of a Member of Parliament and legal counsel for other politically connected persons. He claimed to have suffered on account of political prejudices as the petitioner and his family members were being subjected to torture due to harassment by police authorities. The High Court had noted that there are various criminal complaints pending investigation against the petitioner himself. One such complaint was lodged by the Registrar General (whose elevation as a Judge the petitioner was now trying to stall) in his capacity as the then Registrar (Judicial), pursuant to a direction issued by the High Court. The allegation was that the petitioner had filed writ petitions on behalf of fictitious non-existent persons.

The case of the petitioner before the High Court was that multiple FIRs were being filed with a view to harass the petitioner, and the complaint registered at the instance of the Registrar pursuant to the direction of the Court would also fall in the same category. The High Court was of the opinion that the Registrar as a responsible officer only followed the direction passed by the High Court and, thus, what the petitioner attempted to do was to derail the course of investigation in the complaints lodged against him.

The instant writ petition

The Supreme Court said that it was surprised at the brazenness of the petitioner now filing a petition under Article 32 of the Constitution. It was observed:

“We are surprised as the brazenness of the petitioner now filing the present petition under Article 32 of the Constitution of India, the aforesaid being the finding against him, to now somehow see that the elevation of [the Registrar General] does not take place on the account of these proceedings initiated by the petitioner. This is gross abuse of process of law.”

Observing that there exist sufficient safeguards in the system for appointment of Judges to the High Court, the Supreme Court explained:

“The process of appointment of judges to the High Court is under a well known established process where the collegium of the High Court considers recommending the names and in case of judicial officers by seniority and on merits. Thereafter, the proposed IB inputs and other inputs are obtained and the Government processes the names. The collegium of the Supreme Court has the benefit of all the material before taking a call on whether to recommend the name or not. The appointment takes place thereafter by issuance of warrants of appointment. “

Conclusion

The Supreme Court considered the endeavour of the petitioner as one of harassing the Registrar General of the Telangana High Court and abusing the court proceedings. The Court was of the view that since nothing else seem to deter the petitioner in such endeavours, imposition of costs seems to be the only solution.

The Court dismissed the writ petition with costs of Rs 5 lakh to be deposited by the petitioner with the Supreme Court Advocates On Record Welfare Fund. Additionally, the Bar Council of Telangana was directed to examine the petitioner’s conduct as a member of the “noble profession”. [B. Sailesh Saxena v. Union of India, WP (Civil) No. 555 of 2020, decided on 3-9-2021]


Advocates before the Court:

For Petitioner(s):

V. Chidambresh, Sr. Adv.

Aakash Sirohi, AOR

Appointments & TransfersNews

Elevation of 1 Advocate and 1 Judicial Officer as Judges in Chhattisgarh HC


Supreme Court Collegium has approved the proposal for the elevation of the following persons as Judges in the Chhattisgarh High Court:

ADVOCATE:

1. Shri Sachin Singh Rajput, and

JUDICIAL OFFICER:

2. Shri Deepak Kumar Tiwari.


Collegium Resolution

[Statement dt. 1-09-2021]

Appointments & TransfersNews

Proposal for elevation of Advocate Purushaindra Kumar Kaurav as Judge of Madhya Pradesh HC approved


Supreme Court Collegium has approved the proposal for the elevation of Shri Purushaindra Kumar Kaurav, Advocate, as Judge in the Madhya Pradesh High Court.


Collegium Resolution

[Statement dt. 1-09-2021]

Case BriefsSupreme Court

Supreme Court: A Division Bench of R.F. Nariman and Hrishikesh Roy, JJ. directed that adverse comments recorded against the appellant─advocate in certain judgments of the Uttaranchal High Court be recalled. The Supreme Court found that the offending remarks were unnecessary for deciding the disputes and appeared to be based on personal perception of the Presiding Judge. The requisite degree of restraint and sobriety expected in such situations was also found missing in the offending remarks.

Facts and Appeal

The appellant was a practicing advocate before the Uttaranchal High Court with around 17 years of standing at the Bar. The focal point of the matter arose from four cases before the High Court in which the appellant represented one of the contesting parties. In those four cases, the Presiding Judge of the High Court made certain adverse observations/remarks against the appellant. A brief summary of High Court’s remarks in question is as follows:

Case 1. [1] Anguished over ‘suppression of material fact’ by the appellant, the High Court remarked: “The counsel for the petitioner is a seasonal (sic seasoned) advocate … he has deliberately created a wrong example for the pious institution.

Case 2. [2] Disapproving appellant’s tactic of ‘wasting court’s time’, the High Court said: “.. the learned counsel for the plaintiff/appellant … was intentionally attempting to make a mountain of a mole, which .. was a brutal assassination of time … It further reflected that as if it was not an argument for the case but rather for the visitor’s gallery.

Case 3. [3]  Noting the ‘unacceptable conduct’ of the appellant, the Presiding Judge observed: “… the learned counsel for the appellant submitted that in a prior proceeding which was held before this Court … since I had appeared as a counsel on behalf of the defendant/appellant herein, an attempt was made … to avoid to address of the Second Appeal on its merits before this Court.” (sic)

Case 4.[4] Expressing displeasure against appellant’s ‘modus operandi’ in placing voluminous record including irrelevant precedents/judgments running into volumes, at the stage of admission of the petition itself, the High Court, inter alia, remarked: “… the intention behind making reference to the judgment, was to mislead the Court and to buy time in prolonging the proceedings in order to overcome the effect of dismissal of the concurrent Writ Petitions in limine by placing voluminous judgments on record, and making references of them, by quoting excerpts.

Aggrieved, the appellant approached the Supreme Court for expunging such offending remarks recorded by the High Court against him.

Contention

The appellant submitted that the offending comments were neither essential nor necessary for the High Court’s verdict in the cases concerned. In any case, those remarks were made without putting him to notice or providing any hearing. Further, such adverse comments will not only undermine the professional reputation of the appellant, but would also impact his standing and practice as a lawyer.

In addition, it was submitted that the comments may have emanated from personal prejudice and may not be otherwise warranted. It was stated that before his elevation to the Bench, the Presiding Judge concerned was a member of the same Bar as the appellant and both were rival counsel in several contested matters.

Analysis and Observations

The Supreme Court relied on a catena of judicial precedents on the subject, including State of U.P. v. Mohd. Naim, AIR 1964 SC 703, where Justice S.K. Das laid down three tests to be applied while dealing with the question of expunction of disparaging remarks:

(i) Whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself;

(ii) Whether there is evidence  on record bearing on that conduct justifying the remarks; and

(iii) Whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct.

Discussing the law laid down in earlier cases which has been consistently followed, the Court observed:

While it is of fundamental importance in the realm of administration of justice to allow the judges to discharge their functions freely and fearlessly and without interference by anyone, it is equally important for the judges to be exercising restraint and avoid unnecessary remarks on the conduct of the counsel which may have no bearing on the adjudication of the dispute before the Court.

Considering the adverse comments recorded in the High Court judgments, the Supreme Court was of the view that such remarks could have been avoided as they were unnecessary for deciding the disputes. Moreover, in Court’s opinion, they appeared to be “based on the personal perception of the learned Judge“.

It was apparent that the Judge did not give any opportunity to the appellant to put forth an explanation. The Court stated that the remarks so recorded have cast aspersion on professional integrity of the appellant. Such condemnation of the appellant without giving him an opportunity of being heard would be a negation of principles of audi alteram partem. The requisite degree of restraint and sobriety expected in such situations was also found missing in the offending comments.

Opining that to allow the appellant to suffer would be prejudicial and unjust, the Court said:

The tenor of the remarks recorded against the appellant will not only demean him amongst his professional colleagues but may also adversely impact his professional career. If the comments remain unexpunged in the court judgments, it will be a cross that the appellant will have to bear, all his life.

Decision

The Court concluded that the offending remarks recorded by the Presiding Judge of the High Court against the appellant should not have been recorded in the manner it was done. It was accordingly held that the offending remarks should be recalled to avoid any future harm to appellant’s reputation or his work as a member of the Bar. Order was made accordingly. [Neeraj Garg v. Sarita Rani, 2021 SCC OnLine SC 527, decided on 2-8-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.   


[1] WP (M/S) No. 2216 of 2017 and WP (M/S) No. 2208 of 2017, dated 14-11-2017 (Uttaranchal High Court)

[2] SA No. 190/2019, dated 22-11-2019 (Uttaranchal High Court)

[3] SA 182 of 2019, dated 12-3-2020 (Uttaranchal High Court)

[4] WP (M/S) 519 of 2019, dated 22-2-2021 (Uttaranchal High Court)

Case BriefsHigh Courts

Allahabad High Court: Division Bench of Manoj Kumar Gupta and Syed Aftab Husain Rizvi, JJ.,  while addressing a matter declined to hear the same on noting that the petitioner’s counsel was addressing the Court while riding a scooter.

High Court remarked that,

He should be careful in future even if the hearing is to take place through video conferencing.

Matter to be put up as fresh on 12-07-2021. [Khusboo Devi v. State of U.P., 2021 SCC OnLine All 443, decided on 25-6-2021]


Advocates before the Court:

Counsel for Petitioner:- Amar Singh Kashyap Counsel for Respondent:- C.S.C.,C.S.C.