Bringing you the Best Analytical Legal News
Supreme Court Collegium has approved the proposal for elevation of the following persons as Judges of the Karnataka High Court:
ADVOCATE:
1. Shri Aditya Sondhi,
JUDICIAL OFFICERS:
2. Shri Rajendra Badamikar, and
3. Ms Khazi Jayabunnisa Mohiuddin.
Supreme Court of India
[Statement dt. 04-02-2021]
Allahabad High Court: The Division bench of Govind Mathur, CJ and Saumitra Dayal Singh, J., directs the Chief Judicial Magistrate to submit a report after conducting an inquiry in regard to a matter wherein a Practicing Advocate was beaten and manhandled by the police at Etah.
The Bar Council of Uttar Pradesh addressed a letter to the Chief Justice of this Court with a request to take appropriate action in relation to an incident said to have taken place at Etah on 21-12-2020.
As per the averments contained in the letter, it was submitted that Rajendra Sharma, a practicing advocate at Etah was beaten and manhandled by the police along with humiliation and harassment to his relatives. Secretariat of the Chief Justice from the High Court Bar Association also had sent a letter in regard to the same issue.
Bench in light of the above held that it would be appropriate to have a complete report of the said incident through Chief Judicial Magistrate, Etah.
Hence, Chief Judicial Magistrate, Etah shall make a necessary inquiry by availing all relevant facts including audiovisual electronic documents and submit to this Court.
District Magistrate, Etah as well as Senior Superintendent of Police, Etah have been directed to co-operate with the Chief Judicial Magistrate, Etah and they shall supply all relevant facts and documents as desired by the Chief Judicial Magistrate, Etah to furnish a report of the incident to this Court.
Matter to be listed on 08-01-2021.[Suo Moto Cognizance of The Police Atrocitities Over an Advocate, In Re., 2020 SCC OnLine All 1556, decided on 29-12-2020]
Delhi High Court: C. Hari Shankar, J., after a wholesome discussion, rejected the idea of the constitution of a “two-tier” Confidentiality Club proposed by InterDigital Technology Corporation, and instead suggested the terms for constitution of a single-tier Confidentiality Club.
Xiaomi Corporation has been sued by Interdigital Technology Corporation alleging infringement of Indian Patents Nos 262910, 295912, 298719, 313036 and 320182.
Xiaomi has been using the technology contained in Standard Essential Patents (SEPs) without obtaining the license from Interdigital.
Hence in view of the above, Interdigital has sought a permanent injunction against Xiaomi from manufacturing, selling, assembling, distributing, advertising, exporting, importing or using, in their devices, technology which infringes the SEPs.
In the alternative, a direction has also been sought to XIAOMI, to take a license from Interdigital, for usage of its SEPs, on fair reasonable and non-discriminatory (FRAND) terms to be fixed by this Court.
InterDigital filed IA’s under Oder XXXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 and Chapter VII Rule 17 of the Delhi High Court (Original Side) Rule, 2018.
Chapter VII Rule 17 of the Original Side Rules reads thus:
“17. Confidentiality Club. – When parties to a commercial suit wish to rely on documents/information that are commercially or otherwise confidential in nature, the Court may constitute a Confidentiality Club so as to allow limited access to such documents/information. In doing so, the Court may set up a structure/protocol, for the establishment and functioning of such Club, as it may deem appropriate. An illustrative structure/protocol of the Confidentiality Club is provided in Annexure F. The Court may appropriately mould the structure/protocol of the Club, based upon the facts and circumstances of each case.”
Confidentiality Club Regime is standard protocol, especially while dealing with litigations involving allegation of patent infringement.
Bench in the instant case is concerned whether the Confidentiality Club could be set up in the manner sought by InterDigital.
It seeks setting up of a “two-tier” Confidentiality Club, comprising an “outer tier” and an “inner tier”. The documents which would be open to the members of the “outer tier”, are denoted, in the application of InterDigital, as “Confidential Information”, whereas the documents, to which members of the “inner tier” alone would have access, had been denoted as “Legal Eyes Only (LEO) Confidential Information”.
Parties, as well as their officials and employees, would have no access to the “inner tier” documents.
Mr Parvin Anand has stated that the exclusion of representatives of the parties, from having access to the inner tier documents is non-negotiable.
Bench posed two queries to Mr Parvin Anand, which were as follows:
Wouldn’t the above-stated amount to an unwelcome and unjustified, incursion by the Court into the sacred space that exists between the client and counsel?
Mr Anand submitted that no occasion would arise for the Court to come in between the client and counsel as, if this Court were to accede to the prayer, of InterDigital, for setting up of the “two-tier” Confidentiality Club, it would be for Xiaomi to instruct its Counsel not to disclose, to it, the “inner tier” documents.
Court was befuddled with the above response and expressed that it does not understand how the Court could insist on Xiaomi contracting with its counsel to keep documents shown to its counsel and on which InterDigital relies against Xiaomi, undisclosed to Xiaomi itself.
Hence, the Court held that it cannot by judicial fiat, impose any such contractual dispensation between Xiaomi and its Counsel.
Bench in very clear words opined that the mere fact that Courts, overseas, may have acquiesced to the setting up of such Confidentiality Clubs cannot be of any substantial significance, in deciding the present application of InterDigital.
Bench relied on the decision of this Court in M. Sivasamy v. Vestergaard Frandsen A/S, 2009 (113) DRJ 820 (DB), wherein the following was the Court’s observation:
“…with respect to the litigation in India, the Courts in this country would be guided by the provisions of the Laws as applicable in this country and the pleadings in the suit in this court and not by any orders or decisions of the foreign court, unless, the decision of the foreign Court becomes final and so that it can operate as res judicata between the parties and operate in the parameters of Section 13 and Section 44-A of the Code of Civil Procedure, 1908.
No useful purpose will be served in making reference to various orders of the Courts in the different countries as one does not know what are the ingredients/requirements of causes of action of the different laws of those countries and what were the pleadings of the cases in the foreign courts.”
Bench needs to decide on whether “comparable patent licence agreement” could be justifiably included in an ‘inner tier’ of confidential documents, to be kept away from the eyes of the defendant, as well as all its officers and employees?
Court denied the prayer for keeping certain documents, and information, inaccessible to Xiaomi and its personnel, and allow access, thereto, only to the advocates and experts nominated by Xiaomi.
In case the Court finds the request, of InterDigital, for setting up of a “two-tier” Confidentiality Club, to be acceptable, the benefit thereof would, naturally, ensure to Xiaomi as well. The question, therefore, is not whether Xiaomi would also get the benefit of such an arrangement, but of whether such an arrangement is, to the mind of the Court, legally palatable or not.
No civil suit, be it for enforcement of rights relating to intellectual property, or any other right, can claim innocence to the rigour and discipline of the CPC and the Specific Relief Act, 1963.
Further, the Court observed:
Whether either of the parties, to litigation, needs, or does not need, to see a particular document, would be a decision which essentially rests with the party itself.
Can InterDigital, simply put, assert that Xiaomi does not need to see a document on which InterDigital places reliance, to contest the case initiated by it against Xiaomi?
For the above-stated Court’s opinion was in negative and bench relied on the observations in the decision of Transformative Learning Solutions v. Pawajot Kaur Baweja, 2019 SCC OnLine Del 9229, in paras 23 and 24.
Adding to its observations Court also stated that:
Patent infringement, in the case of SEPs, has, however, a unique feature. A holder of a SEP is not entitled, of right, to seek an injunction against infringement of its SEP, merely on making out a case of such infringement. This, essentially, means that every holder of a SEP is required, in law, to agree to the licensing of its SEP to willing licensees.
Court noted that the plaintiff desires to include the license agreements in the ‘inner tier’ to be kept away from the eyes of the defendants as well as all their officers and employees.
Bench found the above suggestion to be completely antithetical to, and destructive of, the most fundamental notions of natural justice and fair play.
Court again stressed upon the fact that while penning this judgment, it is only addressing the prayer of InterDigital, for the constitution of a two-tier Confidentiality Club, consisting of “inner tier” and “outer tier” documents.
In line of the above position, Court remarked:
Permitting the constitution of such a Club would amount to granting blanket permission, to InterDigital, to keep certain documents away from Xiaomi, its officers and its employees.
Adding to the above, Court also stated that in case the parties are able to agree and arrive at a level playing field, then this judgment shall not come in the way of their doing so.
As the Bench is only concerned with the issue of whether such an arrangement as being discussed can, against its wishes be imposed on Xiaomi.
Court further dealt with the Annexure-F to the Original Side Rules which is cited as “an illustrative structure/protocol of the Confidentiality Club” which may be “appropriately moulded” by the Court.
Membership of the Confidentiality Club, constituted in the manner envisaged by Annexure F is, clearly, limited to three advocates and not more than two external experts. Mr Anand submitted, relying on this Annexure, that the parties, and their officials and representatives, may legitimately be excluded from the Confidentiality Club constituted by the Court.
Bench asserted that, if InterDigital can come to terms with Xiaomi, and they agree, ad idem, to the constitution of such a Confidentiality Club, in which “inner tier” documents would remain away from the prying eyes of InterDigital and Xiaomi, as well as their officers and employees, this order shall not stand in their way. As of today, however, Xiaomi is not agreeable to such an arrangement.
Further, stating that the client-lawyer relationship in Indian Law, has its own distinct incidents, Bench relied on the Supreme Court decision in Himalayan Coop. Group Housing Society v. Balwan Singh, (2015) 7 SCC 373.
Supreme Court in its’ decision of An Advocate v. B.B. Haradara, 1989 (1) ARC 72 (SC) and Om Prakash v. Suresh Kumar, 2020 SCC OnLine SC 100, iterated that the duty of advocates to act, at all times, under instructions from their clients.
SEP infringement litigation cannot be treated as a category sui generis, to which the principles enunciated in these decisions, as well as the Bar Council of India Rules, would not apply.
Court cannot trust such arrangements discussed above upon Xiaomi, without its consent, in the absence of any clear right having been established by InterDigital, for the imposition, on Xiaomi, of such an arrangement.
During the course of the hearing, the thought came to the Court several times that – What if XIAOMI is unwilling — as it is, in the present case – for the 3rd party license agreements, on which InterDigital relies, to be shown only to its advocates and experts, and not its own officials of personnel?
What if Xiaomi says that it is not willing to contract, with its counsel, to keep undisclosed, from Xiaomi, the documents which have been shown to him?
To the above, Mr Pravin Anand submitted that, having involved Xiaomi in a litigative exercise, by filing the present suit against it, InterDigital can insist on Xiaomi prosecuting the suit, and defending itself against InterDigital, without being shown the documents on which InterDigital proposes to rely.
Bench on hearing the above submission summarily rejected it.
Further, in Court’s view, there can be no question of this Court lending its approval to any arrangement in which the third-party license agreements, constituting the very basis of the case set up by InterDigital against Xiaomi, remain undisclosed to Xiaomi, as well as its officials and personnel and are shown only to advocates (who are not in-house counsel) and experts. Any such arrangement would violate the provisions of the Bar Council Rules as well as the law laid down in various decisions including, inter alia, Himalayan Coop. Group Housing Society v. Balwan Singh, (2015) 7 SCC 373.
While concluding its decision, Court held that there is substance in Mr Pravin Anand’s submission that InterDigital cannot, very well, disclose details, in third-party license agreements which, as agreed between InterDigital and such third parties, are required to remain confidential. At the same time, InterDigital cannot, rely on such material against Xiaomi, holding the material back from the representatives of Xiaomi on the plea of confidentiality. InterDigital is, therefore, at liberty to redact, from the documents being treated as confidential, any such detail which, according to it, cannot be disclosed to any third party, including the representatives of Xiaomi.
Though if, Xiaomi agrees to the constitution of such a Club, then this Order would not stand in its way.
Bench held that instead of a “two-tier” Confidentiality club, a single-tier Confidentiality Club can be constituted in the following terms:
(i) Each party shall nominate four advocates, six representatives and two experts, who would constitute the confidentiality club.
(ii) The members of the confidentiality club alone shall be entitled to inspect the confidential information. In the case of the advocates and experts, such inspection would be to the extent such inspection is required in order to perform their professional duties in relation to the present proceedings on behalf of the party by whom they are engaged.
(iii) The documents, regarded as “confidential information” would be filed in sealed cover, to be retained with the Registrar General of this Court under seal and in safe custody.
(iv) The members of the confidentiality club shall be entitled to inspect the confidential information before the Registrar General and, after the inspection is over, the documents and information shall be resealed and returned to the Registrar General.
(v) The members of the confidentiality club shall be bound by confidentiality orders passed by this Court and will not be allowed to make copies, disclose or publish the contents of the confidential information or documents anywhere else or to any individuals who are not privy to the confidential information, including in other legal proceedings or oral and written communications to the press, etc.
(vi) During the recording of evidence and other proceedings of this Court with respect to the confidential information, or when the confidential information is being looked at, only members of the confidentiality club shall be allowed to remain present. Such proceedings will be conducted in camera.
(vii) Any evidence, by way of affidavit or witness statement, containing confidential information shall also be kept in a sealed cover reflecting the confidential and designation, with the learned Registrar General, and would be accessible only to the members of the confidentiality club.
(viii) Neither party would be permitted to rely on any material which is not disclosed to the nominated representatives (as opposed to advocates and experts) of the opposite party. Should either party feel that any details, contained in any document, cannot be shown to the nominated representatives of the opposite party, it is at liberty to redact such details or particulars from the document(s) in question. Needless to say, the party that redacts any particular is, in any document or evidence, shall not be permitted to rely on such a redacted particulars. It shall, however, be open to the opposite party to plead that disclosure of such redacted material is necessary for its defence. In such a case, the court would decide, on a document-to-document basis, whether redacting of the “confidential” details, in the document, should, or should not, be allowed. This, in Court’s opinion, is the maximum extent to which the plea, of InterDigital, for keeping away, from the representatives of Xiaomi, “confidential” details and documents, can be accommodated.
(ix) The confidential documents/information shall not be available for inspection after disposal of the matter, except to the parties producing the same.
Hence, the application stands disposed of in the above terms. [Interdigital Technology Corpn. v. Xiaomi Corpn., 2020 SCC OnLine Del 1633, decided on 16-12-2020]
Advocates for the parties:
For the plaintiffs: Pravin Anand, Vaishali Mittal, Siddhant Chamola and . Pallavi Bhatnagar, Advocates.
For the Defendants: Saikrishna Rajagopal, Siddharth Chopra, Sneha Jain, Garima Sahney, Anu Paarcha, Dr Victor Vaibhav Tandon, Arjun Gadhoke and Charu Grover, Advocates.
Madras High Court: G.K. Ilathiraiyan, J., addressed a petition wherein it was reiterated that Advocates are barred from having any business transaction or loan transaction with his client as the same amounts to professional misconduct.
Purpose of filing the present petition was to quash the proceedings taken place by the Judicial Magistrate for the offences punishable under Section 138 Negotiable Instruments Act against the petitioner.
Respondent who is an advocate appeared on behalf of the petitioner in a case cheated him along to the tune of Rs 7 lakhs and also misused the cheque issued by the petitioner and filed a false case against him.
Contentions
The alleged cheque was presented for collection before the Indian Bank, Madras High Court Branch whereas the complaint was lodged before the Judicial Magistrate, without any jurisdiction.
Hence, the complaint was liable to be quashed for lack of jurisdiction.
Further, the petitioner also relied upon the decision of Bridgestone India (P) Ltd. v. Inderpal Singh, (2016) 2 SCC 75.
Another point raised by the petitioner was that the statutory notice by the respondent did not fulfil the procedures laid down under Section 138 NI Act and 15 days time is to be given for repayment under the provisions of NI Act which has not been given to the petitioner.
Respondent misused the fiduciary relationship with his client and the continuation of the above complaint is harassment to the petitioner for choosing such a person for defending his case.
As per Rule 49(1) C of the Advocates Act, the Advocate is barred from having any business transaction or loan transaction with his client. Therefore the entire complaint is liable to be quashed.
Counsel for the petitioner, A. Edwin and Counsel R. Krishnakumar for the respondent.
Complainant’s case is that the petitioner had borrowed a sum of Rs 24 lakhs for the development of his business and for personal expenditure. He also assured that he would pay interest on the borrowed amount. Thereafter in order to repay the part of the amount, he issued a cheque of Rs 9,45,000 and the same was presented for collection but the same was returned for the reason that “Exceeds Arrangement”.
Section 138 (c) of NI Act:
The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Respondent issued a notice asking the petitioner to repay the cheque amount within a period of 7 days, whereas according to the above-stated Section, the notice period should have been 15 days.
Relying on the Supreme Court’s decision in B. Sunitha v. State of Telangana, (2018) 1 SCC 638, Bench held that when there is a specific bar for doing money lending business that too with his own client, the act of the respondents will amount to professional misconduct.
Hence the entire proceedings initiated against the petitioner is nothing but clear abuse of process of law.
Further, the Supreme Court decision in Bridgestone India (P) Ltd. v. Inderpal Singh, (2016) 2 SCC 75, held that the place where the cheque is delivered for collection i.e., the branch of the payee or holder in due course, where the drawee maintains an account, would be determinative of the place of territorial jurisdiction.
Hence, in the instant case respondent ought to have filed the complaint within the jurisdiction of Indian Bank, High Court Branch. Therefore, the complaint cannot be sustained against the petitioner. [Ilakkia Raja v. T. Umamaheswaran, Crl. OP No. 1157 of 2020, decided on 29-07-2020]
Madras High Court: G.K. Ilathiraiyan, J., observed that, Section 500 of the Penal Code, 1860 cannot be attracted wherein an advocate acts professionally on the instructions of his or her client.
The reason for present criminal original petitions was to quash the proceedings of Metropolitan Magistrate having been taken cognizance for the offences under Sections 500, 192 read with 34 of the Penal Code, 1860.
Five accused persons are there in the present petition, in which the petitioners are arrayed as A1 to A5. The second accused is an Advocate who appeared on behalf of other accused persons.
A1 to A5 are members of the Committee of Creditors. Respondent was initially appointed as the Insolvency Resolution Professional of Oceanic Edibles International Limited which is undergoing Corporate Insolvency Resolution Process by the National Company Law Tribunal, Chennai.
In light of several allegations against the respondent, accused persons filed an application seeking appointment of another Resolution Professional, after which the respondent was removed and another person was appointed as Resolution Professional.
Respondent stated that petitioners made statements which were defamatory in nature resulting in defaming his reputation.
Statements like:
a) Resolution Professional “is not up to the expected standard” (para 21)
b) “He is only keen on entering into the brawl with everyone, thus undermining the judicial process, if he is allowed to continue the interest of COC will be jeopardized”(para 21)
c) COC had already lost precious 50 days from the date of his appointment, no effective business has been conducted to evolve the resolution process in a forward-moving directions (para 22)
d) Resolution professional has misrepresented to media violating the code of conduct (para 23)
e) seeking amendments in IBC is beyond the Rps scope(para 18)
f) resolution professional again sent mails to the top executives wherein he had made statements to the top executives in a very unethical manner and uncalled for (para 19)
Petitioner Counsel submitted that the petitioners were members of COC vested with statutory powers under the IBC to replace the Resolution Professional in the manner provided under IBC. Accordingly, they instructed their counsel namely the second accused to filed an application before the NCLT.
In view of the above, Court stated that it would not attract offence under Section 499 IPC.
Defamation.—Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.
Bench stated that the statements of the petitioners do not attract Section 499 of IPC. A2 was an advocate for other accused persons and filed an application on the instruction of COC before the NCLT to remove the respondent.
Petitioners Counsel relied on the decision in Ayeasha Bi v. Peerkhan Sahib,1953 SCC OnLine Mad 3, wherein it was held that,
“…a lawyer is an advocate, one who speaks for another.Naturally beyond what his client tells him the lawyer has no opportunity to test the truth or falsity of the story put forward by the client.”
Kerala High Court in K. Daniel v. T. Hymavathy Amma, 1985 SCC OnLine Ker 110, held that the English Courts have reiterated the view during last four hundred years that the statements made by Judges, Juries, counsel, parties and witnesses in the course of judicial proceedings are not actionable in civil law for defamation as the occasion is absolutely privileged.
Supreme Court along with various High Courts repeatedly held that,
an advocate who acted professionally as per the instruction of his or her client cannot be made criminally liable for offence of defamation under Section 500 unless contrary is alleged and established.
Hence, the Court allowed the criminal original petitions and the entire proceedings on the file of the Metropolitan Magistrate Court, Chennai. [M.L. Ganesh v. CA V. Venkata Siva Kumar, 2020 SCC OnLine Mad 2732, decided on 30-09-2020]
Central Administrative Tribunal (CAT): A Division Bench of Justice L. Narasimha Reddy (Chairman) and A.K. Bishnoi (Administrative Member) took Suo Motu cognizance of the behaviour of an Advocate who made attempts to hoodwink the tribunal.
Background
Sanjiv Chaturvedi an IFS officer of Uttarakhand Cadre was on deputation to the All India Institute of Medical Sciences (AIIMS) Delhi for some period who filed different Applications with regard to recording of ACRs and was represented by Mehmood Paracha, Advocate.
On completion of his deputation, he was repatriated to his parent cadre.
Advocate stated that the Supreme Court dismissed the SLP filed by the AIIMS, by imposing the cost of Rs 25,000. He was also informed that the adjudication before the Uttarakhand High Court and the Supreme Court was only about the power of the Chairman under Section 25 of the Administrative Tribunals Act, 1985 to stay the proceedings while dealing with an application for transfer and that issue no longer subsists, with the adjudication by the Courts.
Sanjiv Chaturvedi was flamboyant in his approach and was in fact exhibiting triumphalism in getting the order of stay passed in the transfer petition, set aside.
Adjournment | Contempt of Court
Further, the applicant i.e. Sanjiv Chaturvedi was also informed that he can argue the PTs themselves so that the issue can be given a quietus. That did not appeal to him and he went on almost browbeating the Chairman and trying to explain as to how the Tribunal should function.
At that stage, he was informed that his conduct before the Tribunal touched the border of the Contempt of Court and it is for him to choose the course of action. Thereupon, he sought adjournment.
Counsel for the respondent, Mehmood Pracha, stated that the Supreme Court dismissed the SLP filed by the AIIMS. Taking note of the said fact, he was asked to proceed with the PTs and advance the arguments which did not appeal to him.
Humiliation
Instead, Counsel Mehmood Parcha who is the respondent in the present matter, started humiliating the other side’s counsel saying that the Supreme Court has shown them their place by the imposition of Rs 25,000 costs and hence they have no right to plead before the Tribunal.
Browbeating the Chairman | Personal attack on Chairman
He created an unfortunate situation in the Court and was browbeating the Chairman through his gestures and dramatics. Seeing that his provocation was not yielding the expected results, Advocate went on to make a personal attack on the Chairman.
Further, he went on to say that he has a lot to be said about the Chairman and the proceedings should be held in camera.
Scandalising the Chairman
He was informed that he can say in the open Court whatever he intends and if that is not done, it would amount to scandalizing the Chairman. His behaviour continued in the same manner and he did not reveal anything.
The Court was full of Advocates of different standings and repeated requests were made by them to pacify the respondent but nothing affected him.
Section 25 of the Administrative Tribunals Act
It was also informed that the PTs are heard only the Chairman under Section 25 of the Act and if he i.e. the Advocate has any other suggestion, he could make it.
Yet, he continued his tirade.
In view of the above occurrence, Advocate was sent a notice requiring him to explain as to why contempt proceedings should not be initiated against him.
Delhi High Court took up the matter of contempt and referring to the Supreme Court decision in T. Sudhakar Prasad v. Government of Andhra Pradesh (2001) 1 SCC 516, and held that the tribunal alone has jurisdiction to hear and decide the contempt case.
The Supreme Court affirmed order in the contempt matter by rejecting SLP (Crl) No. 7850 of 2019 after the draft charge as provided by the Contempt of Courts (CAT) Rules, 1992 were framed on 19-07-2019 on the basis of the remarks and statements made by the respondent herein, in his capacity as an Advocate.
The respondent filed MA. No. 2471/2019 with three prayers viz., (i) to decide certain MAs filed in PT. No. 288/2017; (ii) to decide whether the Chairman has jurisdiction to hear the contempt case; and (iii) to pass orders in respect of draft charge dated 19-07-2019. The MAs were disposed of on 02-08-2019.
Vikramjit Banerjee, Additional Solicitor General appeared to assist the Tribunal.
Decision
Tribunal expressed that the matter falls under Rule 13(b) of the Contempt of Courts (CAT) Rules, 1992.
Criminal Contempt
Solicitor General, Vikramjit Banerjee, stated that even where an Advocate becomes emotional, during the course of hearing, there is a method of setting the things right and persistent behaviour of challenging the very authority of the Tribunal or attempting to denigrate the Chairman would clearly amount to criminal contempt.
To the suggestion made by the learned Additional Solicitor General that the matter can be given a quietus in case the respondent expresses regrets, the latter stated that he will stand by whatever he said in the Tribunal and during the course of proceedings and that there is no question of expressing regrets.
It is not uncommon that a party or his counsel whose view point is not being accepted by the Court gets agitated. Howsoever strong such feeling may be, they have to stop at a particular stage, even while making effort to drive home, their point.
Upholding the dignity of the Institution
Attacking an adjudicator or attributing motives would cut at the very root of the system.
Once the dignity and status of the Institution are compromised, it loses its relevance. The concept of Contempt of Court is evolved inter alia to protect the dignity of the Institution.
Further, the bench stated that in all respects, result in the PTs was poised in favour of the applicant himself. However, what is discerned from the beginning is that his effort was to exhibit the IFS Officer’s personality than to get the relief in accordance with the law.
Tone & Tenor of pleas
The tone and tenor of the pleas are such that the target was certainly highly placed officers and authorities. In an application for transfer, all the above-stated was totally irrelevant.
The matter reached its pinnacle when in the Open Court counsel said that the proceedings be heard in the Chamber because he has to say something about the Chairman.
Though when he was asked to say whatever he wanted to in the Open Court, he went beating around the bush and did not spell out anything.
Hoodwinked the Tribunal
Counsel and his client have hoodwinked the Tribunal at every stage and in all possible manners.
Soon after the contempt notice was issued, a contempt case was filed against the Chairman, in the Uttarakhand High Court. A Single Judge bench entertaining it issued notice. The Supreme Court stayed it.
Tribunal noted that, the attempt in the present case made to add to the personality of the applicant and his counsel and for that purpose, Tribunal became an easy target.
Further, the bench stated that it may take decades of dedicated service for an officer to be recognised for his efficiency or honesty.
For a hardworking Advocate, it would take quite some time to get recognition or fame. Unfortunately, recourse is taken by some, to short cuts, without realising that the one who prefers short cuts is bound to be cut short.The only unfortunate part of it is that severe damage is done to the Institutions, in the meanwhile
In view of the above, the tribunal held the counsel i.e. respondent herein to be guilty of Contempt of Court under Section 14 of the Contempt of Court Act, 1971.
However, there would have been every justification for the tribunal, to impose the sentence, proportionate to the acts of contempt held proved against the respondent.
However, by treating this as a first instance, he has been let off with a severe warning to the effect that if he repeats such acts in future in the Tribunal, the finding that he is guilty of Contempt of Court, in this case, shall be treated as one of the factors in the proceedings, if any, that may ensue. [Tribunal on its own motion v. Mehmood Pracha, Cr. CP No. 290 of 2019, decided on 23-09-2020]
Justice Sanjay Kumar Gupta was born on 24-11-1961, did matriculation from Oriental Academy, Jammu in 1976, B.Sc with full medical subjects from G.G.M Science College, Jammu in 1982, and L.L.B. from University of Jammu.
Journey as an Advocate
Enrolled as an Advocate in Bar Council of Delhi in 1986, joined Jammu bar in the Chamber of S.S Lehar (Senior Advocate) and practised in all fields including Criminal, Civil, Revenue, MACT etc. in subordinate courts and before High Court.
Higher Judicial Service
He was selected as a direct recruit in Higher Judicial Service as District and Sessions Judge on 22-01-2004 and was posted as Additional District and Sessions Judge Doda, served as District and Sessions Judge in various Courts at Jammu, including 1st additional, 2nd additional, 3rd additional, Additional District and Sessions Judge and Principal District and Sessions Judge Jammu.
Furthermore, he also remained posted as 3rd and 4th additional District and sessions Judge Srinagar, Judicial member special tribunal, J&K at Jammu. One man-forest tribunal Jammu and Kashmir, Principal District and Sessions Judge Leh, Principal District and Sessions Judge, Rajouri.
Lastly, he was posted as Principal District and Sessions Judge, Jammu, from where elevated to permanent Judge of High Court of Jammu and Kashmir.
He took oath as a High Court Judge on 06-06-2017.
J&K HC | Bail denied; no relief granted under S. 426 of J&K CrPC
Collegium Resolution
The Supreme Court Collegium approved the proposal for elevation of the following persons as Judges of the Kerala High Court:
ADVOCATES:
JUDICIAL OFFICER:
4. Smt. M.R. Anitha.
Supreme Court of India
[Collegium Resolution dt. 30-01-2020]
Chhattisgarh High Court: Sanjay K. Agarwal, J., quashed the criminal proceedings against the petitioner, an Advocate, who was arraigned in a criminal case registered under Sections 420, 467, 468, 471 and 120-B IPC.
The petitioner, an Advocate empanelled with the Dena Bank, had provided a non-encumbrance certificate regarding the property of 10 borrowers who had applied for a loan with the Bank under the Kisan Credit Card Scheme. The loan was granted to the said 10 borrowers, who, however, failed to repay the loan. Upon enquiry, it was revealed that the documents submitted by the borrowers were found to be false and fabricated. Consequently, the FIR was registered by the Bank against the said 10 borrowers. However, subsequently, the petitioner was also arraigned as an accused, alleging that she has given a non-encumbrance certificate of legal scrutiny and she had certified documents concerned and, thereby, she had also committed the offence. The petitioner challenged the validity and correctness of the chargesheet.
The High Court, after perusing the record and discussing the law on point, observed: “It is well-settled law that extending of a legal opinion for granting loan has become an integral component of an advocate’s work in banking sector. A lawyer, on his part, has a responsibility to act to the best of his knowledge and skills and to exhibit an unending loyalty to the interest of his clients. He has to exercise his knowledge in a manner that would advance the interest of his clients. However, while acting so the advocate does not assure to his client that the opinion so rendered by him is flawless and must in all possibility act to his gains. Just like in any other profession, the only assurance which can be given and may even be implied from an advocate so acting in his professional capacity is that he possesses the requisite skills in his field of practice and while undertaking the performance of task entrusted to him, he would exercise his skills with reasonable competence. The only liability that may be imputed on an advocate while so acting in his professional capacity is that of negligence in application of legal skills or due exercise of such skills.”
Reliance was also placed on the decision in CBI v. K. Narayana Rao, (2012) 9 SCC 512, wherein the Supreme Court considered the question as to whether a legal professional can be rendered criminally liable for negligence or improper legal advise and held that the liability against an opining advocate arises only when the lawyer was an active participant in a plan to defraud the Bank.
In absence of any allegation against the petitioner as to her active participants in the scheme of defrauding the Bank, the Court was of the opinion that the criminal proceedings against her were liable to be quashed Order were made accordingly. [Subha Jakkanwar v. State of Chhattisgarh, 2019 SCC OnLine Chh 136, decided on 26-11-2019]
Supreme Court Collegium in its meeting held on 15-10-2019, after taking into consideration the material on record, has approved the proposal for elevation of the following persons as Judges of the Gauhati High Court:
1. Soumitra Saikia, Advocate;
2. Parthivjyoti Saikia, Judicial Officer; and
3. S. Hukato Swu, Judicial Officer.
Supreme Court of India
ADVOCATE:
1 Shri Amit B. Borkar,
JUDICIAL OFFICERS:
2 Shri M.G. Sewlikar,
3 Shri V.G. Bisht,
4 Shri B.U. Debadwar,
5 Ms. M.S. Jawalkar,
6 Shri S.P. Tavade,
7 Shri N.R. Borkar, and
8 Shri S.D. Kulkarni
For purpose of assessing merit and suitability of the above-named recommendees for elevation to the High Court, Collegium have carefully scrutinized the material including the observations made by the Department of Justice as well as complaints placed in the file against some of the above-named recommendees.
On the basis of interaction and having regard to all relevant factors, the Collegium is of the considered view that (1) Shri Amit
B. Borkar, Advocate and S/Shri (2) M.G. Sewlikar, (3) V.G. Bisht, (4) B.U. Debadwar, (5) Ms. M.S. Jawalkar, (6) S.P. Tavade, (7) N.R. Borkar, and (8) S.D. Kulkarni, Judicial Officers are suitable for being appointed as Judges of the Bombay High Court.
The Collegium has duly taken note of the observation made in the file that three Judicial Officers viz. S/Shri B.U. Debadwar, S.P. Tavade, and S.D. Kulkarni had crossed the prescribed age limit of 58-1/2 years on the date of vacancies against which their names have been recommended.
In this regard, while approving the proposal for their elevation we have taken into account the fact that Bombay High Court is grappling with huge pendency of civil as well as criminal cases, as it is functioning with 67 Judges against the total Judge-strength of 94 (constituting about 29 per cent vacancies).
In view of the above, the Collegium resolves to recommend that (1) Shri Amit B. Borkar, Advocate and S/Shri (2) M.G. Sewlikar, (3) V.G. Bisht, (4) B.U. Debadwar, (5) Ms. M.S. Jawalkar, (6) S.P. Tavade, (7) N.R. Borkar, and (8) S.D. Kulkarni, Judicial Officers, be appointed as judges of the Bombay High Court.
Supreme Court of India
[Collegium Resolution dt. 26-09-2019]
Chhattisgarh High Court: Sanjay K. Agrawal, J. held that the continuation of criminal proceedings for the offence of defamation against an advocate who acted professionally as per the instructions of his client was nothing but abuse of process of Court.
The petitioner was an Advocate having standing of more than 45 years at the Bar in District Court, Jagdalpur (Bastar). He drafted a plaint on behalf of one Madhuri Pandey, daughter of late Ghanshyam Pandey, for declaration of title, confirmation of possession and permanent injunction against one Pratibha Pandey (hereinafter, the complainant). In the plaint, she was referred to as “concubine” of Ghanshyam Pandey. She filed a complaint against the petitioner and other alleging that she was the widow of Ghanshyam Pandey and not her concubine. She prayed for appropriate action or damage to her reputation.
The precise question for consideration of the Court was: Whether an Advocate, while acting under the instructions of his client and proceeding professionally, can be prosecuted/punished for the offence of defamation punishable under Section 500 IPC?
Rahul Tamaskar, Advocate for the petitioner contended that the petitioner was acting strictly in performance of his professional duty and he enjoyed privilege while acting as such. Chandresh Shrivastav, Deputy Advocate General, submitted that the present petition deserved to be dismissed. Punit Ruparel, Advocate submitted that the petitioner ignored the Duty to Opponent prescribed under Bar Council of India Rules.
The High Court was of the view that the petitioner was liable to be given the benefit of the ninth exception (imputation made in good faith by person for protection of his or others interests) to Section 499 (defamation) IPC. It was noted that the petitioner drafted the plaint on the basis of instructions provided by his client, the plaintiff. Referring to a plethora of Judicial Precedents, the High Court held: “an advocate, who acted professionally as per instructions of his/her client, cannot be made criminally liable for the offence of defamation under Section 500 IPC unless the contrary is alleged and established.” Finding the petitioner’s act to be bona fide, it was said: “As such, imputation was made in good faith and on the basis of instructions of his client in order to protect her right to property which she is claiming, as right to property is a constitutional right under Article 300A of the Constitution of India and therefore does not constitute the offence of defamation under Section 499 punishable under Section 500 and falls within the Ninth Exception to Section 499.”
In such view of the matter, the criminal proceedings pending against the petitioner before the Court of Chief Judicial Magistrate, Jabalpur was quashed.[Arun Thakur v. State of Chhattisgarh, 2019 SCC OnLine Chh 51, decided on 10-05-2019]
Uttaranchal High Court: Manoj K. Tiwari, J. contemplated a writ petition filed against the impugned order, where the request of the petitioner for appointing defence representative in an ongoing disciplinary proceeding had been rejected.
Learned counsel for the petitioner B.D. Pande, submitted that petitioner was asked by the Enquiry Officer as to whether he needed a defence representative in the inquiry against him. Petitioner sought four days time to name the defence representative and ultimately he nominated his representative who was enrolled as an Advocate. He further submitted that his request to engage an Advocate as a representative was turned down as there was no provision in the Service Rules for the appointment of an Advocate as a defence representative, thus, it was directed that petitioner cannot claim the assistance of an Advocate as defence representative as of right. Further, the petitioner acknowledged the directions and sought permission to engage another person as his representative.
Petitioner contended that he was a Class IV employee and was not much educated hence he deserved sympathetic consideration of his request by the competent authorities.
The Court accordingly, disposed of the writ, with the liberty to the petitioner to make a formal request for assistance of a defence representative other than an Advocate to the Competent Authority. Competent Authority was directed that after such request from the petitioner they had to examine the same and take an appropriate decision, in accordance with the law.[Dushyant Kumar v. UCO Bank, 2019 SCC OnLine Utt 379, decided on 27-05-2019]
Proposal for the appointment of Shri Viju Abraham, Advocate as a Judge of the Kerala High Court.
“For purpose of assessing merit and suitability of Shri Viju Abraham we have carefully scrutinized the material already on record as well as the further information received from Kerala High Court. Having regard to all relevant factors, the Collegium is of the considered view that Shri Viju Abraham is suitable for elevation to the High Court.”
Collegium resolves to recommend that Shri Viju Abraham, Advocate, be appointed as a Judge of the Kerala High Court.
[Notification dt. 06-05-2019]
Supreme Court of India
Rule 13 of Chapter II of Part VI of the Bar Council of India Rules under the Advocates Act, 1961 specifically state that:
Section 120 of the Evidence Act, 1872 only deals with who may testify as a witness and does not lay down any restriction or restraint on the advocate to be a witness in the case where he is acting as an advocate. A counsel for a party should not be his witness in the same case without retiring from the case as counsel. It is a sound principle that a person who is appearing as counsel should not give evidence as witness.
If, however, in the course of proceedings it is discovered that the advocate is in a position to give evidence and it is desirable that he should do so, his proper course is to retire from the case in his professional capacity. Failure to do the same would amount to professional misconduct under Section 35 of the Advocates Act, 1961. However, if the advocate knew or had reason to believe since the very beginning that he will be an important witness in the case, he has a choice either to appear as a witness or to appear as an advocate. Once he exercises the said choice and chooses to be an advocate in the case, then he cannot be examined as a witness on behalf of the opposite side by retiring from the suit at a subsequent stage.
It is against the etiquette of the Bar that a member of the profession should give evidence in the case in which he is engaged as counsel and no self-respecting counsel would be prepared to conduct a case for the defence after having been called as a witness for the prosecution. However, a practitioner, who is acting on behalf of one of the parties and conducting litigation for him is debarred under Section 126 of the Evidence Act, 1872 to disclose the communications made to him without the express consent of his client.
If, however, a court comes to the conclusion that a trial will be embarrassed by the appearance of an advocate who has been called as witness by the other side, and if, notwithstanding the court’s expression of its opinion, the advocate refuses to withdraw, in such a case, the court has inherent jurisdiction to require the advocate to withdraw. Nevertheless, a counsel is not incompetent to give evidence whether the facts to which he testifies occurred before or after his retainer. It should be noted that merely because the name of an advocate appears in the list of witnesses of opposite party, his vakalatnama does not automatically get relinquished.
However, recently in Kokkanda B. Poondacha v. K.D. Ganapathi[1] the Supreme Court has held that one of the parties in a suit cannot cite the advocate representing the other side as a witness in the list without indicating the purpose for the same. This will ensure that the other side is not deprived of the services of the advocate on frivolous grounds.
Conclusion
Therefore, in light of the above, an advocate can appear as witness in certain instances. However, it should be noted that an accused is entitled to be defended by a counsel of his choice and the prosecution cannot fetter that choice merely by serving subpoena on the advocate to appear as a witness. Furthermore, the Court is also bound to see that the due administration of justice is not, in any way, embarrassed by permitting the advocate to appear as witness.
* Associate, Khaitan & Co., New Delhi, email – susanah.naushad@khaitanco.com
Kerala High Court: Deciding upon the question as to whether an advocate could be permitted to appear in person as a power of attorney holder in the absence of a vakalat, the Court held that an advocate holds an exalted position as an officer of the court who should not identify with the cause of his client whom he represents in the lis.
A practising lawyer of the Madras High Court sought to plead the case on behalf of the appellants as a power of attornery holder on the contention that he was not appearing in the robes of an advocate and that any person could function as such for the parties.
The Bench of Chitambaresh and Ramakrishnan, JJ. held that any appearance, application or act in or to any court, required by law to be made by a party in such court, may be made or done by the party in person, or by his recognised agent or by a pleader. The recognised agent by whom such appearance, application or act may be made or done can as well be a person holding power of attorney of the party which is evident from a conjoint reading of Rules 1 and 2 of Order 3 of the Code of Civil Procedure, 1908. The appointment of a power of attorney holder has nevertheless to be preceded by the grant of permission by court, as held in T.C. Mathai v. Sessions Judge, (1999) 3 SCC 614. However there is an embargo for a person enrolled as an advocate under the Advocates Act, 1961 to appear before any court, authority or person in any particular case under Section 32 thereof.
The Court observed that there is also an inbuilt limitation for a power of attorney holder in the matter of presentation of proceedings or to plead and argue on behalf of the principal in court. All petitions, appeals and other proceedings shall be presented in person by the party, or his advocate or the advocate’s registered clerk as per Rule 32 of the Rules of the High Court of Kerala. Decisions are legion that the power of attorney holder can only appear and conduct the judicial proceedings and would not normally be permitted to plead and argue on behalf of the principal. The power of attorney holder in the instant case has no interest in the subject property.
Declining the relief, the Court observed that an advocate cannot escape from the rigorous provisions of the Advocates Act by opting to plead and argue the case as power of attorney holder of the parties. [Brenda Barbara Francis v. Adrian Mirinda, 2016 SCC OnLine Ker 8173, order dated July 8, 2016]
Kerala High Court: The bench comprising of Justice Shaji P. Chaly, allowed the writ petition and issued a mandamus directing the Kerala State Housing Board and others to ensure that various flats constructed under a housing scheme for residential purposes at the Chinnakkada Housing Accomodation Scheme Site II of the Housing Board, Kollam, are not being used for other commercial purposes.
The Housing scheme in question was meant for residential purposes. Further, Clause 19 of the Hire Purchase Agreement for those who opted for hire purchase also restricted use to residential purposes as does Regulation 6 (1) of the Kerala State Housing Board (Formation of Allottees Associations) Regulations, 2000). Nevertheless, various flats in the complex for being used as offices, godowns, training centres etc. Earlier alottees had raised the issue with the Board, whose inaction triggered O.P. No. 28612/2000 before the same court, wherein respondents 1 to 3 had been directed to see that flats were not used for any purpose other than those mentioned under the scheme and clause 19 of the Hire Purchase Agreement.
This Court characterized as undeniable fact that owners and representatives-in-interest would be bound to obey the restrictive clause, and the housing scheme. The Court noted R.K. Mittal v. State of Uttar Pradesh (2012) 2 SCC 232, wherein the Supreme Court held that a scheme which comprised a master plan and zoning plan specified as residential by the allotment by the Delhi Development Authority under the Industrial Development Area Act of 1976, must be implemented strictly.
The Court thereby held the Respondents bound to ensure the residential character of the flats and remove all commercial ventures within a period of three months, excepting an advocate who resided and maintained his office in the same flat because it is not exactly constituting a commercial venture. [Darelene Carmelita D’Cruz v. Kerala State Housing Board, 2016 SCC OnLine Ker 5341, decided 08-04-2016]
Bombay High Court: In a case of appeal against a family court order, a bench comprising of Revati Mohite Dhere, J observed that if an advocate, who had represented a woman in her earlier divorce proceedings, later represents her second husband against her, it cannot be said that the advocate switched sides in the “same proceedings”. The ruling came as a relief to advocate Edith Dey who had represented the respondent in her first divorce and was now representing the respondent’s second husband in the ongoing divorce case. Earlier, the family court had set aside the advocate’s appointment and directed the second husband to appoint another advocate to represent him. Advocate Dey appealed against this decision arguing that there was no conflict of interest and that the two proceedings were distinct and unconnected. On the other hand, the wife’s advocate Taubon Irani emphasized that advocates must maintain their clients’ confidentiality.
After listening to arguments on both sides, the Court noted that nowhere had the wife contended that the said advocate was aware of any confidential information. The Court also observed that the family court had failed to take into consideration that the divorce case where the Advocate Dey had represented the respondent-wife was converted into a petition for divorce by mutual consent in the first hearing itself. The Court also clarified that the said family court order did not decide on whether the advocate can or cannot appear for the second husband; instead, the judge held merely observed that under Section 13 of the Family Court Act, 1984, there is no inherent right in an Advocate to appear. After discussing Rule 23 of Bar Council of India rules, Section 34(1); of Advocate Act, 1961 and a related judgment of Andhra Pradesh High Court, the Court came to a conclusion that an advocate cannot switch sides and appear for the opposite side in the “same proceedings” but in this case it cannot be said that the proceedings in which the advocate was now appearing were the “same proceedings.” Rajiv Hiranandani vs. Namrata Zakaria, Civil Writ Petition No.11135 of 2013, decided on July 31, 2014
