Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Attau Rahman Masoodi and Rajeev Singh, JJ., addressed the matter wherein the Government Counsel who has been alleged for raping a young practicing lawyer, has challenged the FIR lodged against him and sought a direction to police to not arrest him.

Present matter is pertaining to a complaint filed by a Lawyer against a Government Counsel who raped the lawyer in her chamber.

Counsel for the informant prayed for a week’s time to file counter affidavit, to which Court granted the said time.

A.G.A. pointed out that the contents of the FIR reflect that some relevant material was left at the place of occurrence i.e. chamber of the petitioner(accused). In the fitness of things, he prayed that such material may also be taken into custody by the investigating agency as the chamber of the petitioner(accused) is sealed.

Hence, in view of the above, Court in view of being satisfied that a case for intervention is made held that the petitioner (accused) may not be arrested under Sections 328, 354(A), 376 IPC till next date of listing.

Court also directed that petitioner shall co-operate with the investigation by making available as and when called for. He may also not indulge in any activity subjecting the complainant to any intimidation or causing any threat to her life or property. [Shailendra Singh Chauhan v. State of U.P., 2020 SCC OnLine All 890, decided on 31-07-2020]

Case BriefsHigh Courts

Bombay High Court: A.S. Chandurkar, J., clarified that a contract whereby an advocate asks for the fee based on the outcome of the arbitration proceedings, wherein he acted in the capacity of a “counsel” for the party and did not appear as an “advocate”, is valid.

It is pertinent to note that such contracts (generally called a contract for a contingent fee) are held to be opposed to public policy and hence void under Section 23 of the Contract Act, 1872 where such contract is entered into by an Advocate with his client.

In the present case, the respondent was a partnership firm engaged in providing consultancy services in arbitration matters. They entered into an agreement with the appellant as per which, they were to represent the appellant in an arbitration proceeding. As per the terms of the agreement, the respondent would be entitled to 1% of the award amount upto Rs 1 crore, and 1.5% thereof over Rs 1 crore. Based on the result of the arbitration proceedings, the respondent raised a claim for an amount of over Rs 1.28 crores. However, the appellant did not pay the amount and the respondent filed a recovery suit which was allowed by the trial court.

An important question before the High Court was — whether the agreement was hit by the provisions of Section 23 of the Contract Act, 1872?

D.V. Chavan, Advocate appearing for the appellant urged that the partner of the respondent firm who appeared in the arbitration proceeding was a qualified advocate, and thus he was precluded from seeking remuneration on the basis of the outcome of the proceedings in which he represented the appellant. Per contra, Yash Maheshwari, Advocate representing the respondent submitted that the partner concerned of the respondent firm was not a registered advocate under the Advocates Act, 1961.

The Court discussed the decision of ‘G’, a Senior Advocate of the Supreme Court, In re, AIR 1954 SC 557 and noted that in Paragraph 11 of that case, the Supreme Court observed that there was nothing morally wrong, nothing to shock the conscience, nothing against public policy and public morals in such a transaction “per se” when a legal practitioner is not concerned. Also, such agreements are legally enforceable when entered into between third parties.

Noting that the “aforesaid observations” though in the passing are in the nature of obiter dicta and hence binding on this Court.”, the High Court observed, “The aforesaid observations are clear that with regard to such an agreement in which a legal practitioner is not involved, the same would be legally enforceable. It is thus clear that an agreement of the aforesaid nature if entered into by an Advocate would be against public policy and the same may not be so when third parties are involved.”

As per the Court, there was no evidence to indicate that the partner of the respondent firm acted as an “Advocate while representing the appellant; in fact, he represented them only as their counsel, and the representation before the arbitrator could not be said to be a representation before the Court. It was held: “Mere fact that the said partner happened to be a law graduate by itself would not be sufficient to conclude that the agreement entered into by him for being entitled to remuneration based on the outcome of the arbitration proceedings would render that agreement contrary and opposed to public policy and hence void under Section 23 of the Act of 1872.”

On such view of the matter, along with the decision on other points which also went against the appellant, the Court dismissed the present appeal and confirmed the decree passed by the trial court. [Jayaswal Ashoka Infrastructure (P) Ltd. v. Pansare Lawad Sallagar, 2019 SCC OnLine Bom 578, decided on 07-03-2019]

Case BriefsHigh Courts

Sikkim High Court: A Single Judge Bench comprising of Meenakshi Madan Rai, J.,decided an application for condonation of delay filed under Order 41 Rule 3A of Civil Procedure Code, wherein, while granting relief to the appellant (applicant herein), the Court held that no exemption for time lost due to carelessness of the council could be taken into account while calculating period limitation.

The application was filed for condoning the delay of 6 days in filing the appeal against the judgment of District Judge. The appeal was to be filed within a period of 90 days of the judgment as provided in Article 116(a) of Limitation Act 1963. However, there was a delay of 6 days in filing the appeal. The appellant submitted that the certified copy of the impugned judgment was misplaced by the counsel of the appellant. A photocopy of the same was submitted along with the appeal. On receiving an objection from the Registry, the counsel applied for another certified copy. The second copy was received after 34 days, which, according to the appellant, was the cause of the resultant delay.

The High Court considered the submissions and referred to Section 12 of Limitation Act, which provides for exemption of such time as was required for procuring a certified copy of the judgment to be appealed against while calculating the period of limitation. The Court, however, observed that such exemption was to be taken only for the time lost in acquiring the first copy. Further, the clarification that the first certified copy of the judgment was lost holds no water, as no provision has been made for computing limitation for the carelessness of the counsel. The Court was of the view that proper grounds were not shown for allowing condonation. Nonetheless, the Court held, the appellant ought not to suffer on account of what transpired in the chambers of his counsel. Thus, keeping in mind the paramount importance of handing out substantial justice, the Court exercised discretion in condoning the delay. The application was accordingly disposed of. [Nil Kumar Dahal v. Indira Dahal,2018 SCC OnLine Sikk 123, dated 26-06-2018]

Case BriefsHigh Courts

Karnataka High Court: While deciding a criminal petition filed under Section 482 of CrPC, a Single Judge Bench comprising of K.N. Phaneendra, J. allowed the application filed by the petitioners under Section 311 of CrPC for recalling witnesses, the Investigating Officer and the Medical Officer, for cross-examination holding that in the instant case, if the fullest opportunity is not given to attack the testimonies of such witnesses, it would definitely prejudice the rights and interest of the petitioners-accused persons.

Earlier, learned Sessions Judge rejected the application filed by the petitioners under Section 311 of CrPC, seeking to further cross-examine two witnesses in the  criminal cases concerned. He rejected the said application on the grounds that the applicants have already availed the opportunity to cross examine the said witnesses and have brought no material to show that due to inadvertence, they were not able to cross examine the said witnesses completely. The petitioners assailed this order.

The High Court perused the application filed by the petitioners and found that it was categorically stated therein, that in their examination-in-chief, the concerned witnesses have stated about the dying declaration of the deceased. It was also noticed that the learned counsel for the accused, failed to cross-examine the said witnesses on the aspect of the dying declaration and other evidence adduced by the said witnesses.

The Court was of the opinion that due to some lapses on part of the counsel, prejudice should not be caused to the accused persons. It is the fundamental basic principal of criminal jurisprudence that fullest opportunity should be given to the parties by the first Court itself, so as to avoid any further complications and multiplicity of proceedings. While dealing with such applications, the Court should examine whether it deserves consideration or not. Merely because of delay in filing application or lack of proper explanation would not render such application infructuous.

The Court was of the view that in the circumstances of the case, if the said witnesses were not allowed to be reexamined with regard to the dying declaration, it would definitely prejudice the rights and interest of the accused persons. Accordingly, the petition was allowed, the impugned order was set aside and the trial court was directed to recall the witnesses concerned for further cross-examination. [Sunila v. State of Karnataka, Crl. Petition No. 6003 of 2017, order dated 16.11.2017]