Appointments & TransfersNews

President of India appoints the following Advocates as Judges of the Gujarat High Courts w.e.f. the date they assume charge of their respective offices:-

Sl. No. Name (S/Shri)
1. Smt. Mauna Manish Bhatt
2. Samir Jyotindraprasad Dave
3. Hemant MaheshchandraPrachchhak
4. Sandeep Natvarlal Bhatt
5. Aniruddha Pradyumna Mayee
6. NiralRashmikant Mehta
7. Ms. Nisha Mahendrabhai Thakore

Ministry of Law and Justice

[Dt. 16-10-2021]

Appointments & TransfersNews

President appoints the following Advocates and Judicial Officers as Judges of the Rajasthan High Court and directs them to assume charge of their respective offices: –

Sl. No. Name (S/Shri) Name of the High Court in which appointed
1. Farjand Ali, Advocate Rajasthan
2. Sudesh Bansal, Advocate Rajasthan
3. Anoop Kumar Dhand, Advocate Rajasthan
4. Vinod Kumar Bharwani, Judicial Officer Rajasthan
5. Madan Gopal Vyas, Judicial Officers Rajasthan

Ministry of Law and Justice

[Notification dt. 11-10-2021]

Case BriefsSupreme Court

Supreme Court: In the case where ten times adjournments were given between 2015 to 2019 and even twice the adjournments were granted as a last opportunity and even the cost was imposed, the bench of MR Shah* and AS Bopanna, JJ has held that the courts shall be very slow in granting adjournments and they shall not grant repeated adjournments in routine manner.

“Time has now come to change the work culture and get out of the adjournment culture so that confidence and trust put by the litigants in the Justice delivery system is not shaken and Rule of Law is maintained.”

The Court was dealing with “a classic example of misuse of adjournments granted by the court”.

A suit for eviction, arrears of rent and mesne profit was filed in the year 2013. Thereafter, despite the repeated adjournments sought and granted by the court and even twice the adjournments were granted as a last opportunity and even the cost was imposed, the defendant failed to cross examine the plaintiff’s witness.

Although the adequate liberty was given to the defendant to cross examine the plaintiff’s witness, they never availed of the same and went on delaying the proceedings by repeated prayers of adjournment and unfortunately the Trial Court and even subsequently the High Court continued to grant adjournment after adjournment and as such contributed the delay in disposal of the suit which as such was for eviction. It was also brought to the Court’s notice that as such now even the main suit has been disposed of.

The Supreme Court called such approach ‘wholly condemnable’ and said,

“Law and professional ethics do not permit such practice. Repeated adjournments on one or the other pretext and adopting the dilatory tactics is an insult to justice and concept of speedy disposal of cases. Petitioner – defendant acted in a manner to cause colossal insult to justice and to concept of speedy disposal of civil litigation.”

Taking the example of the case at hand, the Court noticed that,

“Many a times the suits are filed for eviction on the ground of bonafide requirements of the landlord. If plaintiff who seeks eviction decree on the ground of personal bonafide requirement is not getting the timely justice and he ultimately gets the decree after 10 to 15 years, at times cause for getting the eviction decree on the ground of personal bonafide requirement may be defeated. The resultant effect would be that such a litigant would lose confidence in the justice delivery system and instead of filing civil suit and following the law he may adopt the other mode which has no backing of law and ultimately it affects the rule of law.”

Noticing that arrears are mounting because of such dilatory tactics and asking repeated adjournments by the advocates and mechanically and in routine manner granted by the courts, the Court said that,

“Many a times, the task of adjournments is used to kill Justice. Repeated adjournments break the back of the litigants. The courts are enjoying upon to perform their duties with the object of strengthening the confidence of common man in the institution entrusted with the administration of the justice. Any effort which weakens the system and shake the faith of the common man in the justice dispensation has to be discouraged.”

The Court was also conscious of the fact that whenever the trial courts refused to grant unnecessary adjournments many a times they are accused of being strict and they may face displeasure of the Bar. However, the judicial officers shall not worry about that if his conscience is clear and the judicial officer has to bear in mind his duties to the litigants who are before the courts and who have come for justice and for whom Courts are meant and all efforts shall be made by the courts to provide timely justice to the litigants.

Therefore, it was directed that the courts shall not grant the adjournments in routine manner and mechanically and shall not be a party to cause for delay in dispensing the justice. The courts have to be diligence and take timely action in order to usher in efficient justice dispensation system and maintain faith in rule of law.

[Ishwarlal Mali Rathod v. Gopal, Special Leave to Appeal (C) No(s). 14117-14118/2021, order dated 20.09.2021]

Counsels: Mr. N.K. Mody, Sr. Adv. Mr. Shishir Kumar Saxena, Adv. Mr. R.N. Pareek, Adv. Mr. Prabhuddha Singh, Adv. Ms. Soumya Chaturvedi, Adv. Ms. Sharmila, Adv. Mr. Praveen Swarup, AOR


*Order by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

Appointments & TransfersNews

Reiteration of earlier recommendation for elevation of 3 Judicial Officers as Judges


Supreme Court Collegium has, on reconsideration, resolved to reiterate its earlier recommendation for the elevation of the following Judicial Officers as Judges in the Allahabad High Court:

1. Shri Om Prakash Tripathi,

2. Shri Umesh Chandra Sharma, and

3. Shri Syed Waiz Mian.


Collegium Resolution

[Statement dt. 1-09-2021]

Appointments & TransfersNews

Elevation of 2 Judicial Officers as Judges in Jammu and Kashmir High Court


Supreme Court Collegium has approved the proposal for elevation of the following Judicial Officers as Judges in the Jammu & Kashmir High Court:

1. Shri Mohan Lal, and

2. Shri Mohd. Akram Chowdhary


Collegium Resolution

[Statement dt. 1-09-2021]

Appointments & TransfersNews

Supreme Court Collegium Recommendations


Supreme Court Collegium has, on reconsideration, resolved to reiterate its earlier recommendations for the elevation of the Advocates as Judges in the following High Courts:

High Court/s Name
Rajasthan Shri Farzand Ali
Calcutta Shri Jaytosh Majumdar
Shri Amitesh Banerjee
Shri Raja Basu Chowdhury
Smt. Lapita Banerji
Jammu and Kashmir Shri Rahul Bharti
Smt. Moksha Kazmi (Khajuria)
Karnataka Shri Nagendra R. Naik
Shri Aditya Sondhi

Collegium Resolution

[Statement dt. 1-09-2021]

Appointments & TransfersNews

Elevation of 13 Advocates as Judges in Allahabad HC


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

1. Shri Chandra Kumar Rai,

2. Shri Shishir Jain,

3. Shri Krishan Pahal,

4. Shri Sameer Jain,

5. Shri Ashutosh Srivastava,

6. Shri Subhash Vidyarthi,

7. Shri Brij Raj Singh,

8. Shri Shree Prakash Singh,

9. Shri Vikas Budhwar,

10. Shri Vikram D. Chauhan,

11. Shri Rishad Murtaza,

12. Shri Dhruv Mathur, and

13. Shri Vimlendu Tripathi.


Collegium Resolution

[Statement dt. 1-09-2021]

Appointments & TransfersNews

Elevation of 4 Advocates as Judges of Punjab and Haryana High Court


Supreme Court Collegium has approved the proposal for elevation of the following Advocates as Judges in the Punjab & Haryana High Court:

1. Shri Vikas Suri,

2. Shri Vinod Sharma (Bhardwaj),

3. Shri Pankaj Jain, and

4. Shri Jasjit Singh Bedi


Collegium Resolution

[Statement dt. 1-09-2021]

Appointments & TransfersNews

Elevation of 3 Advocates and 2 Judicial Officers as Judges of Gauhati HC


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

ADVOCATES:

1. Shri Kakheto Sema,

2. Shri Devashis Baruah, and

3. Shri Arun Dev Choudhury.

JUDICIAL OFFICERS:

4. Smt. Malasri Nandi, and

5. Smt. Marli Vanku


Collegium Resolution

[Statement dt. 1-09-2021]

Appointments & TransfersNews

SC Collegium has approved elevation of 4 Advocates as Judges of Madras HC


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

1. Smt. Sundaram Srimathy,

2. Shri D. Bharatha Chakravarthy,

3. Shri R. Vijayakumar, and

4. Shri Mohammed Shaffiq.


Collegium Resolution

[Statement dt. 1-09-2021]

Appointments & TransfersNews

SC Collegium approves proposal for elevation of 4 Advocates & 4 Judicial Officers as Judges in Kerala HC


Supreme Court Collegium has approved the proposal for elevation of the following Advocates and Judicial Officers as Judges in the Kerala High Court:

Advocates

1. Smt. Shoba Annamma Eapen,

2. Smt. Sanjeetha Kalloor Arakkal,

3. Shri Basant Balaji, and

4. Shri Aravinda Kumar Babu Thavarakkattil.

Judicial Officers

1. Shri C. Jayachandran,

2. Smt. Sophy Thomas,

3. Shri P.G. Ajithkumar, and

4. Smt. C.S. Sudha.


Collegium Resolution

[Statement dt. 1-09-2021]

Appointments & TransfersNews

Calcutta High Court | Elevation of 2 Advocates and 4 Judicial Officers as Judges


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

Advocates

  1. Shri Krishna Rao, and
  2. Ms Koyeli Bhattacharyya

Judicial Officers

  1. Smt Shampa Dutt (Paul),
  2. Shri Bibhas Ranjan De,
  3. Shri Siddhartha Roy Chowdhury, and
  4. Shri Ajoy Kumar Mukherjee.

Collegium Resolution

[Statement dt. 1-09-2021]

Appointments & TransfersNews

Rajasthan High Court | Elevation of Advocates and Judicial Officers as Judges


Supreme Court Collegium approved the proposal for elevation of the following Advocates and Judicial Officers as Judges in the Rajasthan High Court:

Advocates

  1. Ganesh Ram Meena,
  2. Sudesh Bansal, and
  3. Anoop Dhand.

Judicial Officers

  1. Shri Uma Shankar Vyas,
  2. Shri Vinod Kumar Bharwani, and
  3. Shri Madan Gopal Vyas.

Collegium Resolution

Statement dt. 1-09-2021

Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., while reiterating that there is no absolute bar on legal practitioners representing Management before Labour Courts, observed that:

Judicial decisions on the question of consent, including implied consent, have primarily turned on the facts of each case.

Instant petition challenged the order by which Counsel for the Petitioner-Management was not permitted to represent his client before the Industrial Tribunal.

Counsel for Petitioner-Management submitted that the impugned order was completely contrary to the prevailing law on the issue inasmuch as Advocates are permitted to represent the management, so long as there was no objection by the workman or the litigation expenses were paid.

Further, the Counsel submitted that the authorized representative of the Management was appearing at the time when pleadings were being exchanged and other procedural formalities were being completed. However, when the matter reached the stage of trial, the Management thought it fit to engage the services of an Advocate for tendering evidence and conducting cross-examination. Accordingly, Counsel Sabharwal had been engaged in the matter.

Adding to the above, Counsel submitted that it is the usual practice before Labour Courts that Advocates appear and represent the management as well as the workmen.

In the present case, Rajesh Khanna was an authorized representative for the Workmen and one such representative of the trade union, regularly appearing for workmen before the Labour Courts. He submits that the Management would be enormously prejudiced if the Workmen are permitted to be represented by an expert and the Management is not allowed to engage an Advocate.

Analysis, Law and Decision

Question for consideration is in respect of the representation of Advocates before the Labour Courts.

As per Section 36(4) of the Industrial Disputes Act, 1947, both parties i.e., the workmen and the management, are permitted to be represented by a legal practitioner with the consent of the other party and with the leave of the Court

From the judgement in Paradip Port Trust, Paradip v. Workmen, (1977) 2 SCC 339, it is clear that there is no absolute bar and if consent is given by the workmen, a lawyer can appear before the Labour Court.

Whether there was consent – implied or expressed, and whether leave ought to be granted by the Adjudicator concerned.

In the recent decision of the Supreme Court in Thyssen Krupp Industries India Private Limited v. Suresh Maruti Chougule [Civil Appeal No. 6586/2019], the clear conclusion would be that a legal practitioner can represent the management before the Labour Court, if the litigation expenses for the workman to engage the advocate are paid by the management.

“…as the matter reaches trial, it would be inapt to say that the management or the workmen would not be entitled to engage Advocates or legal practitioners to represent them, in accordance with law. If the Management wishes to be represented by a legal practitioner, the Court can consider the question of whether the workman has given consent or not, whether impliedly or otherwise. “

Court directed that the parties shall appear before the Labour Court on 20-09-2021.[A&B Fashions (P) Ltd. v. Ramesh Kumar, WP (C) 8929 of 2021, decided on 24-08-2021]


Advocates before the Court:

For the Petitioner: Vinay Sabharwal, Advocate

Mr Raj Birbal, Ms Raavi Birbal and Mr Gunjan Singh, Advocates assisting the Court

Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., remarked that,

Insurance for lawyers has been an aspiration for several years.

In the present matter, while lauding the object of the Chief Minister’s Advocates Welfare Scheme, for advocates enrolled with the Bar Council of Delhi, the following two issues were raised:

  • The first, is in respect of a condition in the Scheme that the benefit of the same will only be available to such advocates whose names appear in the voter’s list of Delhi. A large number of advocates who are enrolled with the BCD and practising in various District Courts, the High Court, the Supreme Court and other fora, have been excluded due to this condition, as they are not residents of Delhi but reside outside Delhi, predominantly in the NCR region in areas such as Noida, Gurugram, Faridabad, Ghaziabad etc.
  • The second issue concerns those lawyers who were unable to register for the Scheme within the original deadline and are thus seeking an extension of the deadline for registration.

Broad summarization of the reliefs sought:

  1. Issuance of insurance policies to all eligible advocates already registered under the Scheme;
  2. Quashing of the condition requiring advocates to have a voter ID card of Delhi for obtaining the insurance policies under the Scheme. In effect, therefore, what is sought is the extension of the Scheme to lawyers residing outside Delhi, in the NCR region/neighbouring areas, so long as they are registered with the Bar Council of Delhi.
  3. Reopening of the registration portal to enable advocates who have been unable to register as yet, to put in their registrations.

Point wise analysis of the decision

  • Whether advocates registered with the BCD who reside in the NCR region/neighboring areas are entitled to benefits under the Scheme?

Place of Practice v. Place or Resident? 

Bench observed that on a conjoint reading of the provisions of the Advocates Act, 1961, the Bar Council of Delhi Rules, 1963 and the BCIPP Rules shows that insofar as advocates are concerned, primacy is given to the place of practice and not to the place of residence of the advocate.

Legal practice in Delhi and the NCR region/neighbouring areas

A substantial number of advocates who primarily practice in Delhi live in the NCR region/neighbouring areas, including in areas such as Noida, Gurugram, Sonepat, Rohtak, Faridabad, Ghaziabad, some areas of Punjab etc. Such advocates are registered with the BCD and are also members of the Bar associations of the court complexes where they practice.

The said advocates also contribute to the revenue stream of the Delhi Government by practicing in Delhi.

Therefore,

The advocates’ place of residence has no bearing on this whatsoever. Moreover, the place of residence of the advocate is also not set in stone. Depending upon the income levels of the advocate, the advocate may move to Delhi. It is a matter of common knowledge that not all advocates can afford housing in Delhi and may, therefore, choose to reside in the NCR region/neighbouring areas. However, the character of their practice, being essentially in Delhi, would not change.

Whether the scheme can be restricted to advocates who have voter ID cards of Delhi?

GNCTD had submitted that if the Government wishes to restrict the benefits of the Scheme to a sub-classification of advocates registered with the BCD as also residing in Delhi, the Court cannot interfere in the said policy decisions.

Whether Court can interfere in the policy decision of the Government?

High Court expressed that almost all decisions of governments taken as executive decisions would involve policy matters. Such decisions, as per the settled law would be amenable to judicial review, if it is seen that the same is either discriminatory or arbitrary.

There cannot be a hard and fast rule that in a welfare scheme, Courts cannot interfere, even if they are violative of the rights of a section of the citizens.

 Whether the sub-classification of advocates registered with the BCD would be permissible in law?

The scheme was introduced with the objective of welfare of the advocates. Object was to recognize the positive role played by advocates in society.

Chief Minister of Delhi had announced the Scheme with an outlay of Rs 50 crores to be utilized for the welfare of the legal community.

In Supreme Court decision of State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75, test for determining whether a classification is valid or not was laid down.

Crux of Classification Test

There is no rational nexus between the grouping and the object, and the same is found to be arbitrary, the classification was unreasonable and liable to be struck down.

Further, it was added that submission on behalf of the GNCTD that the conditions to be imposed in the Scheme being one of governmental policy, the Court ought not to interfere in the same, would not be correct if the conditions are found to be discriminatory or arbitrary.

Bench elaborating more, stated that the GNCTD cannot impose the condition of residence in Delhi to advocates and not to its own employees.

The scheme of the Advocates Act, 1961 as also the various Bar Council Rules and Regulations give primacy to the place of practice and not residence.

Governmental policies are amenable to judicial review and if the allegation is one of discrimination the same would have to be examined on the touchstone of Article14. The Scheme carves out a distinction within advocates registered with the BCD, between those advocates who are residents of Delhi and those who are not. The Scheme is extended to the former and not to the latter. The said classification does not have a rational nexus with the object of the Scheme.

Hence, the Court held that the said condition and the resultant classification was discriminatory and arbitrary.

Bench lauded the Scheme floated by GNCTD for recognizing the need of advocates who belong to the various strata of society for having insurance for themselves and their families.

During the pendency of the petitions, a number of advocates enrolled with BCD with voter ID Cards of Delhi had already availed the Scheme and thus, the Scheme is already having a practical impact on the lives of advocates practicing in Delhi, especially during the pandemic.

  • Whether registration ought to be reopened to enable advocates who missed the initial deadline to obtain benefit under the Scheme?

With respect to reopening of registration for new advocates, a proper scheme would have to be evolved as the same would not be possible for the current year.

Upon extension of the Scheme to advocates from the NCR region/neighbouring areas, newly enrolled advocates and advocates who may register afresh for the Scheme having been enrolled post the deadline of 2019, the number of advocates who may become eligible may increase considerably.

High Court added that from the data filed by the BCD, it is clear that the BCD has funds to contribute to the Scheme, though the same may not be fully sufficient to fund the entire Scheme. The Advocates Welfare Fund Act, 2001 having been enacted for the purpose of welfare of Advocates, this Court is of the opinion that to the extent possible, the said Fund ought to be utilised to support the Scheme for insurance.

BCD either by itself or by receiving contribution from the advocates themselves ought to willingly share the burden.

Conclusion and Directions

a. The Chief Minister’s Advocates Welfare Scheme announced by the GNCTD is a Scheme that has a laudable objective of recognising the role of lawyers in protecting the rights of citizens and their constructive role in society. It is also in recognition of the role played by advocates and their contribution to the legal profession. The Scheme has, with this objective already enabled insurances for thousands of advocates in Delhi and has provided relief and succour to them especially during the pandemic. However, the condition in the Scheme that it would be applicable only to residents in Delhi with Voter IDs, is held to be discriminatory and arbitrary as the sub-classification from amongst the advocates enrolled with the Bar Council of Delhi, has no rational nexus with the object to be achieved. Accordingly, the Scheme shall be extended to all advocates registered with the Bar Council of Delhi, whose names and credentials are verified, without the insistence of Voter ID showing residence in Delhi;

b. For the current year’s policies, all advocates who had registered themselves and are eligible for the benefits under the Scheme shall be extended the benefits. The GNCTD has already spent approximately Rs.40 crores to enable advocates to avail of the insurance policies. Out of the total number of advocates for whom policies have already procured, there are 5,044 advocates from the NCR region/neighbouring areas within the verified list of advocates for whom premium has already been paid. They shall enjoy the benefits of the Scheme. All such further eligible advocates, who had registered within the deadlines prescribed, as per this judgement, who have been left out shall now be included and the policies/coverage, on the same terms, for the remainder period of the current year, shall be procured from the LIC and NIACL by 31st July 2021. Only the pro-rata premium would be liable to be paid by the GNCTD to the insurance companies, which the insurance companies had agreed to, during the course of hearing.

c. Insofar as the future years are concerned, since the pool of advocates has been increased, the total premium for life and Mediclaim insurance, may be more than the budget outlay of Rs.50 crores. The GNCTD cannot be made to solely bear the burden of providing the insurance premium, though it is urged that the outlay may be increased depending upon the requirements, taking inflationary trends etc., into consideration. The BCD which has been unable to provide for group insurance for advocates, ought to complement the efforts of the GNCTD which has clearly taken the position that the issue is not being treated in an adversarial manner. Thus, the deficit on a year-to- year basis, beyond the budgeted amount of the GNCTD, shall be funded by the BCD.

  1. For the said purpose, the BCD may source the funds in the following manner. It is –
  • Free to utilize its own funds, including the funds collected under the Advocates’ Welfare Act, 2001.
  • Free to seek any voluntary contribution from Senior advocates and other financially well-off advocates, who may be willing to contribute for the betterment of the legal community.
  • The BCD may, if the need so arises, collect some part of the premium from the advocates who are beneficiaries of the Scheme.

Lastly, the Court added that the Law Secretary of the GNCTD and the Chairman Bar Council of Delhi shall be responsible for working out the modalities of the Scheme.

The GNCTD, after consulting the BCD, would be free to decide on the nature of the Scheme to be availed of from the insurance companies, either on an annual basis or on a periodic basis such as three years or five years, so that the annual premia can be duly scaled down. The new scheme in terms of the present judgment shall accordingly be announced by 30th September, 2021, after consultation with the BCD and insurance companies. [Govind Swaroop Chaturvedi v. State of NCT of Delhi, 2021 SCC OnLine Del 3676, decided on 12-07-2021]


Advocates before the Court:

For the Petitioner: G.S. Chaturvedi, Petitioner in person.

For the Respondents: Mr. Rahul Mehra, Sr. Advocate and Mr. Satyakam, ASC for GNCTD.

Mr. Sanjay Rawat, Advocate for NIACL with Mr. Gaurav Sharma, Branch Manager.

Mr. Ramesh Gupta, Chairman, BCD. Mr. Rakesh Khanna and Mr. K.C. Mittal, Sr. Advocates with Mr. Rajiv Khosla, Advocate for BCD.

Mr. Kamal Mehta, Advocate for LIC.

Case BriefsHigh Courts

Madhya Pradesh High Court: The Division Bench of Mohammad Rafiq, CJ. and Vijay Kumar Shukla, J., heard a petition which was in pursuance to the detailed order passed on 10-01-2014. It was in regard to the creation of the Directorate of Prosecution in terms of Section 25-A of the Code of Criminal Procedure. On 23-08-2017 the Court had disapproved the practice of appointment of Public Prosecutors on a contract basis and categorically held that it cannot be a post for appointment on contract basis as such the post is pivot for the administration of justice.

On 28-08-2019 the Government Advocate was granted a week’s time to seek instructions and apprise the Court of the steps taken by the Government to fill up the posts of Public Prosecutors and Assistant Public Prosecutors. On 29-09-2019 he informed the Court that a Gazette notification had been published in terms of Section 24 sub-section (1) of the Code of Criminal Procedure as of 07-01-2019.

Mr Siddharth R. Gupta, Advocate appearing for the High Court submitted that this matter was pending before this Court for quite some time and the practice of engaging Panel Lawyers to appear before the High Court in criminal matters even without experience of seven years was being wrongly followed and that the State Government should comply the requirement of Section 24(1) and Section 24 (7) of CrPC before authorizing any Advocate to appear as Public Prosecutor before the High Court.

The Court directed the Respondent-State to clarify certain stands,

  • Whether one Public Prosecutor is appointed for each Court in all districts of the State to attend the Criminal matters and if not whether multiple number of Courts are assigned to one available Public Prosecutor and if yes, give the details thereabout?
  • As to how many posts in the cadre of Additional District Prosecution Officers, District Prosecution Officers and Deputy Director (Prosecution) are lying vacant in the State?
  • Whether the promotions may not be granted against the unfilled posts of the quota of promotion in the cadre of the District Prosecution Officers and Deputy Director (Prosecution) to the extent not affected by order of the Hon’ble Supreme Court, with regard to which there is no dispute?
  • Can the State Government not consider appointing Additional District Prosecution Officers/District Prosecution Officers on retainership basis for fixed duration against unfilled posts of Public Prosecutors?
  • Whether a Panel Lawyer may appear in the Court before the High Court in criminal matters like Criminal Appeals, Bail Applications, Criminal Revisions, application for suspension of sentence, MCRCs etc. even without having practice of minimum of seven years and without the consultation with the High Court as required under Section 24(1) of Cr.P.C.?
  • How can appointment on contract basis without recourse to Section 24(4) of Cr.P.C. on the basis of panel proposed by the District Magistrate in consultation with the Sessions Judge particularly when Section 24(5) of Cr.P.C. provides that no person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under sub-section (4) of Section 24 of Cr.P.C.?

The Central Government was further asked to provide with the details with regard to compliance of Section 24(1) and Section 24(4) of Cr.P.C. as to whether the Advocates who appear on behalf of the agencies like Central Bureau of Investigation, Enforcement Directorate etc. before High Court and courts subordinate thereto, are appointed by process of consultation with the High Court or Sessions Judge, as the case may be, in terms of Section 24(1) and 24(4) of Cr.P.C. respectively.

Matter to be taken up on 26-07-2021.[Gyan Prakash v. Govt. of M.P., 2021 SCC OnLine MP 1211, decided on 22-06-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Madras High Court: M. Dhandapani, J., expressed that:

“…advocates are not above law and, in fact, it is the advocates who have to give more respect to the law, as it is their bread and butter.”

“Court should not be a mute spectator to the legal gimmicks…”

Factual Matrix

Respondent Police had registered a case wherein 2nd petitioner was stopped by police officials on duty while she was proceeding in her car. Her car was stopped as the lockdown was imposed and on query she responded that she had come out for the purpose of purchasing medicines, however, respondent 2 informed that she had stated that she came out for purchasing fish.

It was also stated that she had no valid pass for going out during the lockdown period.

In light of the above incident, a challan of Rs 500 was issued

Crux of the matter

The whole melee started on the issuance of challan, after which 2nd petitioner started quarrelling with police officials.

Overall scene that has led to the present matter was that, petitioner 1 claimed and proclaimed that she was an advocate, used filthy, abusive and unparliamentary language, used derogatory words and castigated the police officials on duty and in fact threatened them that they will be stripped off their uniforms, if they tried to intervene and cause any hindrance to the movement of the petitioners.

Police officials were smeared all over with mud by 1st petitioner. Hence, for total violation of lockdown guidelines and non-adherence to the provisions of the Disaster Management Act and violation of the provisions of the Penal Code, petitioners were slapped with by filing of the above complaint and further leading to registration of case.

In Court’s earlier order, Bar Council of Tamil Nadu was directed to file a status report as to the mechanism that was in place for taking action against those unruly advocates, who cast a slur by their act, demeaning the whole legal profession without bothering about the impact of their acts on the disciplined and law-abiding members of the legal fraternity.

As per the status report, a mechanism was envisaged under Section 35 of the Advocates Act for proceeding against a member of the Bar for unprofessional conduct or other misconduct. However, the said provision spoke only about the complaint received on which action is initiated by the Bar Council.

Though, from the status report it was not clear as to the suo motu powers of the Bar Council in dealing with such instances, where the unprofessional act comes to the knowledge of the Bar Council, though not on the basis of a complaint, in which case, the matters such as the present one goes unnoticed, though it was in the public domain and reached the ears and eyes of the public through the visual media.

Sine the status report was silent, it led to the inference that generally no action was taken against such persons, if there was no complaint before the Bar Council.

It is also not clear whether the Bar Council has deliberated on this aspect of initiation of suo motu action against such unruly members of the Bar, who damage and stature and sanctity of the institution and also the members associated with the said institution.

Police personnel | Frontline Workers

It is to be pointed out that the police personnel has been one of the frontline workers in trying to curb the spread of the deadly virus by maintaining the lockdown guidelines imposed by the Government from time to time since March, 2020 and it is further to be pointed out that the pandemic is not yet over and caution has been given about the on-coming of the 3rd and 4th wave, which are predicted to have a still more detrimental impact on the human race.

Police personnels have not only been working overtime but also working with least concern for their family and themselves and have been dedicating their lives to the cause of humanity. In such a scenario, the least expected of the general public and also the intellectual group of legal professionals that they should be given the minimum basic respect and courtesy while handing them.

Advocates Stature

Advocate because of his avocation and his social-minded acts, rise up the pedestal and in fact that was the reason law gave them the stature to question even the police. But that stature should be used in a legal and lawful manner without maligning the reputation and position of any individual person or any official of the Government.

Further, it was elaborated that,

Usage of the position of advocate for other than just causes is nothing but an act of corrupt nature, which requires to be cut down by the sword held in the hands of the statue of Justice.

The doyens of the Bar, more especially the Madras Bar, have held aloft the rule of law for centuries together and Madras Bar is always looked upon with awe and admiration.

 A very significant observation made by the Court was that, nowadays, a few members, just to enrich themselves and for their selfish cause, throw to the winds the larger interest of the legal fraternity and cause irreparable damage to the other members of the legal profession by their acts, as has been done in the present case. 

Bench noted that 1st petitioner indulged in the above-stated act in Infront of her daughter 2nd petitioner who was said to be a 4th-year student. In such a backdrop, it is more expected of the 1st petitioner to teach the 2nd petitioner the ethics for following the rule of law, as otherwise, her act as in the present case, would engrave upon the mind of the 2nd petitioner, which would not be a welcome sign to the legal profession.

High Court expressed that if it allowed such mindset to go unnoticed, it would be a great injustice that this Court would be doing to the legal profession and also to the genuine, dignified and respectful legal professionals, who respect this profession and the robes they wear and would also be sending a wrong signal to send 2nd petitioner who is slowly climbing up the ladder to enter the legal profession.

In view of the above discussion, Court did not grant anticipatory bail to the 1st petitioner.

With regard to 2nd petitioner, Court stated that mere quarrelling with the police officials cannot be said to be a wrongful act, which would attract the penal provisions pressed into service by the respondents against 2nd petitioner and any view taken to the contra would be negating the rights guaranteed to the citizens under the Constitution.

Law Enforcement Agency and their role

The law enforcing agency is manned by persons, who have experience in dealing with criminals and not each and every individual, who commits a mistake should be branded as a criminal by bringing the individual within the four corners of the penal code.

Unnecessary infliction of charges of this nature on every individual would only make the individual look into the loopholes of the system and try to wriggle out of the same after committing mistakes, which should be avoided at all costs.

Hence, Bench stated that respondents shall ponder dropping of all the charges made against 2nd petitioner as there was no substance in the said charges.

Bar Councils’ Mechanism to deal with erring Advocates

Law has given the legal professional privilege and status, but the said privilege is to be used sparingly and only for upholding the majesty of law and following the rule of law. It is not given for the purpose of maligning the rule of law and demeaning the other members of the Bar to the benefit of the individual.

Any infraction by this Court in not safeguarding the interest of the legal profession would be a doom for the entire judiciary and the legal fraternity as a whole.

 Bar Council in its report submitted that it takes action only when it receives any complaint against any erring advocate.  However, what this Court was more bothered about was the fact that not all unprofessional conduct or other misconducts lead to a complaint being written by the Bar Council.

Any unprofessional conduct of a member of the legal profession, coming to the knowledge of the Bar Council through the visual media for which no complaint emanates from any quarter, can the Bar Council allow that instance to go unnoticed for the mere reason that the Advocates Act does not envisage suo motu action?

Court feels that it is high time the Bar Council enforces Section 35 of the Advocates Act, which gives it power and authority to initiate action suo motu on the incidents, which comes to its knowledge through the digital/print media, for which there is no complaint given by any individual.

In view of the above discussions, 2nd petitioner deserves anticipatory bail while dismissing the petitioner insofar as 1st petitioner.

Another issue that the Court dealt was a WhatsApp audio which was circulated by one R. Krishnamurthi, a member of the Bar who circulated the audio on social networking platforms attributing mala fides to the Bench.

advocate has further stated that I should recuse from hearing the case any further and has also attributed dishonesty and also stated that I am taking a lopsided view in favour of the law enforcing agency. Though I have called only for certain particulars, the advocate has gone on to make allegations that I have taken a biased view and I am leaning towards the law enforcing agency and has even casted aspersions against me openly in the social networking domain

Adding to the above, Bench also noted that the advocate imputed allegations against the Judiciary in falling to take any action against the law enforcing agency for very many irregularities committed by them during the pandemic situation, which are not in consonance with law.

The act of the advocate is very much contumacious and attracts initiation of criminal contempt proceedings. The whole audio paints a very gloomy picture and without any material aspersions are attributed against the Bench.

It was noted that the said Krishnamoorthy was a total stranger to the proceedings, yet he had made derogatory statements in the social media against the judicial functions of the Bench, including seeking Judge’s recusal, which was nothing but interference with the administration of justice.

Hence, High Court held that the act of aforesaid advocate attracted Section 2(c) of the Contempt of Courts Act.

This Court would not fall prey to such acts perpetrated by gossip mongers and unscrupulous elements, with a view to scuttle the judicial process and make the judiciary dance to their tunes.

Bench directed Registry to issue notice regarding initiation of Suo Motu Criminal Contempt proceedings against the said R. Krishnamoorthy as provided for under Section 14 of the Contempt of Courts Act and, thereafter, place the matter before the Hon’ble Chief Justice for being listed before the appropriate Bench for hearing. [Tanuja Rajan v. State, 2021 SCC OnLine Mad 2242, decided on 18-06-2021]


Advocates before the Court:

For Petitioners: Ms. A.Louisal Ramesh

For Respondent : Mr. A.Gopinath, GA (Crl. Side) for R-1 Mr. Haja Mohideen Gisthi for R-2


Madras HC | Is there any mechanism to take action against members of legal fraternity for their misbehaviour with officials on duty? Bar council of Tamil Nadu to respond

 

Case BriefsHigh Courts

Madras High Court: M. Dhandapani, J., stated that the Court has noticed where the legal fraternity has indulged in some high-handed activity against the law enforcing agency.

It has been stated that amidst pandemic, health workers and uniformed services have been performing arduous duty with due diligence and with scant care for their health and well-being. Each and every common man throughout the country had recognized and applauded their efforts, yet a few miscreants, who, with scant respect to the work done by law enforcing agency, indulge in a tussle with police personnel.

Additionally, it was stated that some miscreants of the legal fraternity also do fall in the above-stated league.

Society has witnessed very many instances of the legal fraternity indulging in war of words as also scuffle with the police personnel, but most of the times, the members of the legal fraternity do keep themselves within the bounds of law.

No Mechanism for unruly behaviour of members of the legal fraternity?

For unruly and indiscipline behaviour, other persons, who work for one or other arm of the Government, mechanism of disciplinary action is contemplated under the relevant Acts and Rules governing the service, yet, when it comes to the legal fraternity, the initiative and control vests on the Bar Council of Tamil Nadu, to take appropriate action against such of those unruly advocates who involve themselves in these kinds of acts, which demeans the profession.

However, the mechanism that is in place to take action against such individuals, who involve themselves in indisciplined acts and misbehave with the officials on duty, are not clearly spelt out by the Bar Council of Tamil Nadu.

High Court directed the authorized officer of Bar Council of Tamil Nadu to file an appropriate status report before this Court as to the mechanism that is in place for taking action against the members of the legal fraternity as also the action that has been taken against such of those advocates, who have misbehaved in the public place with officials on duty.[Tanuja Rajan v. State,    2021 SCC OnLine Mad 2203, decided on 15-06-2021]


Advocates before the Court:

For Petitioner: Mr. Louisal Ramesh

For Respondent: Mr. A. Gopinath Government Advocate (Crl. side)

Case BriefsCOVID 19High Courts

Delhi High Court: Suresh Kumar Sait, J., held that any authority whosoever shall not stop any advocate in NCT of Delhi if he or she produces the Bar identity card or any proof of his/her being an advocate.

The instant petition was filed by the petitioner seeking issuance of a writ mandamus directing respondents to comply with the curfew order dated 19-04-2021 with respect to exemptions granted therein and not to insist/demand for productions of e-pass from the petitioner advocate/other advocates for movement in curfew period, contrary to the aforesaid order dated 19-04-2021 which mandated e-pass only for two categories of personnel.

Further another direction was sought towards the Police Commissioner and SHO PS Dwarka North to take appropriate legal and departmental actions against respondent 6 for violating the curfew orders dated 19-04-2021 as well as insisting and humiliating an advocate of this Court by respondent 6.

ASC for State accepted the notice on behalf of the respondents and submitted that vide instructions issued by Delhi Disaster Management Authority, the movement of advocates is allowed during the curfew on the production of valid ID Card.

Further, he added that on the production of the I-Card of the Bar, any advocate will not be stopped by any police officer and any officer comes under the State Government.

Hence, in view of the above stated the instant petition may be disposed of.

Bench added to its conclusion that no officer of any authority shall humiliate any of the Advocates on production of the Bar identity card or other proof, failing which strict action shall be taken against erring officer as per law.

In view of the above, petition was disposed of.[Dharmendra Kumar v. State of NCT of Delhi, 2021 SCC OnLine Del 2565, decided on 25-05-2021]


Advocates before the Court:

For the petitioner: Mr. Yogesh Gaur, Mr. Darshan, Mr. Amar Phogat, Mr. Satish Kumar Paanchal, Mr. Sanjeev Chopra, Mr. Vinod Dahiya, Md. Azam Ansari, Mohd. Mustafa, Md. Ashfaque Ansari and Mr. Dharmendra Kumar, Advs.

For the Respondent: Mr Rajesh Mahajan, ASC for State

Case BriefsHigh Courts

Orissa High Court: A Division Bench of Chitta Ranjan Dash and Pramath Patnaik JJ. held sub-rule (9) of Rule- 6 of the High Court of Orissa (Designation of Senior Advocate) Rules, 2019 as ultravires of the guidelines/norms framed in para 73 in Indira Jaising case.

The facts of the case are such that Orissa High Court, in exercise of the power under Section-16(2) read with Section-34 of the Advocates Act, 1961 and the guidelines framed by Hon’ble the Supreme Court in Indira Jaising v. Supreme Court of India, (2017) 9 SCC 766. The Orissa High Court issued an Advertisement inviting applications from the eligible Advocates to be conferred with the designation of “Senior Advocates” and after thorough scrutiny names of Opposite Party 5 to 9 were considered conferring them with designation of “Senior Advocate” by invoking it’s suo motu power under sub-rule (9) of Rule-6 of “2019 Rules”. Impugning conferment of the designation of “Senior Advocate” on Opposite Party 5 to 9 and issuance of Notification dated 04.09.2019 which calls for applications afresh from the eligible Advocates after conferring designation of “Senior Advocates” on Opposite Party 5 to 9, the present writ petitions was filed by 4 advocates.

Issues

(I) Whether the petitioners have locus standi to maintain the writ petition?

Counsel for the petitioners submitted that the designation of the Opposite Party 5 to 9 as “Senior Advocates” by adopting pick and choose method and completely discriminated against the petitioner. It is submitted by him that the action of the Permanent Committee and the Hon’ble Full Court is violative of Article- 14 of the Constitution of India, “2019 Rules” and Section- 16(2) of the Advocates Act.

Counsel for the respondents submitted that the petitioners do not have any locus standi to maintain the writ petition as the impugned Notification dated 19.08.2019 designating the Opposite Party.5 to 9 as “Senior Advocates” does not operate as a decision against the petitioners, much less affects them.

The Court observed that being advocates they have a vested and existing right to call in question the rule which creates a separate group within a particular group, more so, when such creation of group by invoking a particular rule is not in consonance with the guidelines laid under Indira Jaising[supra]. It was further observed that as the petitioners are applicants for their private cause, the doctrine of aprobate and reprobate cannot be applied strictly to the facts of the case especially in view of the nature of the lis but the validity of sub-rule (9) of Rule-6 of “2019 Rules” has to be examined to find out whether the same is in consonance with the guidelines of Hon’ble the Supreme Court framed in Indira Jaising case irrespective of the fact who brought the matter before the Court, hence the petitioners have the locus standi to maintain the writ petitions.

(II) Whether the Orissa High Court could have designated Respondent 5 to 9 as “Senior Advocates” in exercise of its suo moto power under sub-rule (9) of Rule-6 of “2019 Rules” as laid down in Indira Jaising case [supra]?

After perusing the landmark judgment, the Court observed  that “2019 Rules” is to be examined in the touchstone of the guidelines formulated in Indira Jaising case [supra].While framing the guidelines, Supreme Court has specifically held that the norms/ guidelines, in existence, shall be suitably modified so as to be in accord with the present and this power lies only with Supreme Court and no other High Court has any power to add or delete from the guidelines

The contentious Sub-rule (9) includes three sources by which applicant advocates can be chosen as “Senior Advocates”:-

(1) Proposal from the Hon’ble Judges;

(2) Application from the Advocate concerned and

(3) Exercise of suo motu power in respect of an Advocate even without any proposal from the Hon’ble Judges or application from the Advocate concerned, if the Hon’ble Full Court is of the opinion that, by virtue of his/her ability or standing at the Bar, the said Advocate deserves such designation

The Court observed that the exercise of suo motu i.e. the third source mentioned under Sub rule (9) has consciously not been included in the guideline framed in Indira Jaising case [supra].

Quoting para 70 from Indira Jaising case [supra].

“xxxxxxxx The credentials of every Advocate who seeks to be designated as Senior Advocate or whom the Full Court suo motu decides to confer the honour must be subject to an utmost strict process of scrutiny leaving no scope for any doubt or dissatisfaction in the matter.”

The Court observed that an advocate who seeks to be designated means an advocate who files an application for being designated, stands apart, from him on whom the Hon’ble Full Court suo motu decides to confer the honour. The word “or” in between the words “Advocate” and “whom” has been used as a conjunction, which is a function word to indicate an alternative. Having discussed this suo motu power in paragraph- 70, Hon’ble the Supreme Court in paragraph- 73.4 has ipse dixit not stated anything about the pick through suo motu source. Such silence in paragraph-73.4, according to our understanding is a conscious silence.

The Court thus held “sub-rule (9) of Rule- 6 of “2019 Rules” is an addition beyond the scope of the guidelines/norms framed in paragraph-73 of the Judgment in Indira Jaising case. Therefore, sub-rule(9) of Rule- 6 of “2019 Rules” is not in consonance with the said Judgment and ultravires of the guidelines/norms in our considered view.”

It was further held that “Opposite Party Nos.5 to 9 having been graced by the Hon’ble Full Court with the designation of “Senior Advocate”, we do not want to disgrace them at present by withdrawing the designation, as there is no fault on their part in the entire exercise.”

In view of the above, petition was disposed of.

[Banshidhar Baug v. Orissa High Court, 2021 SCC OnLine Ori 484, decided on 10-05-2021]


Arunima Bose, Editorial Assiatnt has put this report together 

Counsel For Petitioner : Adv. Bansidhar Baug(In person)

Counsel For Opp. Party 1 and 3: Adv. Sanjit Mohanty and Adv. I.A. Acharya

Counsel For Opp. Party No.5 : Adv. Gouri Mohan Rath, Adv. A.C. Panda, Adv. M. Agarwal, Adv. S.S. Padhi, Adv.  S.D. Ray, Adv.  P.P. Behera &  Adv. A. Mishra.

Counsel For Opp. Party 6: Adv. P. Ramakrishna Patro and Adv. A.K. Samal.

Counsel For Opp. Party 7, 8 & 9: Adv. Debasis Nayak, Adv. A. Mishra, Adv. M. Agarwal and Adv. P.P. Behera.