Sanjeev Sirohi, Advocate
Published on: 23 April 2023 at 20:07 IST
While catching the bull by the horns and without mincing any words whatsoever, the Allahabad High Court in a most learned, laudable, landmark, logical and latest judgment titled Shiv Kumar Sharma vs State of UP and Another in Case No. – 42663 of 2022 under Section 482 of the CrPC that was pronounced as recently as on March 29, 2023 while dealing with a matter has observed most unsparingly that the conduct of accepting the brief by a subsequent counsel, at the stage of conclusion of arguments by previous counsel and that too before the very date of the pronouncement of the judgment that permeates unsolicited impression about the dignified profession.
Of course, the High Court has also requested the State Bar Council as well as the High Court Bar Association to consider and find a practical solution to the “frequently rising wretched conditions affecting the noble profession”.
It must be noted that the Court was deciding a case wherein an applicant had approached the Court challenging the proceedings of an offence initiated under Section 138 of the Negotiable Instruments Act, 1881, and a summoning order that we see was passed by the Additional Chief Judicial Magistrate-III. The Allahabad High Court thus finally dismissed the plea and refused to interfere in the summoning order of the Trial Court.
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mrs Justice Manju Rani Chauhan sets the ball in motion by first and foremost putting forth in para 1 that, “By means of instant application the applicant has approached this Court challenging the proceedings of Complaint Case No. 2233 of 2021 Satpal Naagar v. Shiv Kumar Sharma, under Section 138 of the Negotiable Instruments Act, 1881 (the N.I. Act), Police Station Phase-2, District Gautam Buddh Nagar and summoning order dated 05.04.2022 passed by Additional Chief Judicial Magistrate-III, Gautam Buddh Nagar.”
To put things in perspective, the Bench then while dwelling briefly on facts of case envisages in para 2 that, “Brief facts of the case are; a complaint under Section 138 of the N.I. Act was filed against the applicant with the allegation that the applicant having good relations with opposite party no. 2 demanded an amount of Rs. 1,25,00,000/- requesting him to become a partner in his business, which was being run by him since 2013,”.
“The opposite party no. 2, on the assurance of the applicant, gave an amount of Rs. 1,25,00,000/-. It has further been alleged that the applicant, having the intention of cheating, showed profit in the Firm for the year 2014-15 and returned an amount of Rs. 8,00,000/- to the opposite party no. 2. On being asked to return the balance amount, the applicant gave Cheque No. 097414 dated 24.03.2021 of Rs. 20,00,000/-. The said cheque was presented by the complainant in the Bank on 05.04.2021 which was returned with the remark “Bank Blocked”,”.
“Thereafter, the opposite party no. 2 approached the applicant informing him about return of the cheque by the Bank with the aforesaid remark and requested him to pay the amount as was taken by him, on which the applicant misbehaved with the opposite party no. 2 and used abusive language, threatening for dire consequences and abruptly refused to return the amount,”.
“Thus, a legal notice dated 17.04.2021 was given by the opposite party no. 2 through registered post, however, the same was alleged to be not accepted by the applicant. The applicant did not return the amount nor submitted reply to the legal notice given by opposite party no. 2, therefore, the present complaint was filed on 27.07.2021. Subsequently, the learned Magistrate, after recording statements under Section 202 Cr.P.C. summoned the applicant vide order dated 05.04.2022 under Section 138 of the N.I. Act.”
In hindsight, the Bench laments in para 3 stating that, “On earlier occasion i.e. 15.02.2023 Sri Omar Zamin, learned Advocate argued the matter at length, however, to respond some specific queries, the case was posted for 21.03.2023 for further hearing, though this Court had expressed its view of not being convinced to grant any relief in favour of the applicant,”.
“To utter surprise, on the next date, Sri Rohit Nandan Pandey, learned Advocate stepped in by filing his memo of appearance on behalf of the applicant, whereas he was not in a position to assist the Court even to a tad bit as he appeared to be in oblivion state regarding the facts of the case as also incognizant of the exhaustive and strenuous arguments advanced by Mr. Omar on the previous date. On being insisted to render assistance, Mr. Pandey summed up his arguments in a very cavalier and unvirtuous manner. Such practice not only impedes early conclusion of a case but also disparages the profession and is execrated as infelicitous.”
Most forthrightly, the Bench propounds in para 4 that, “Appearance of a subsequent counsel at the concluding stage of arguments, that too, after disclosure of the view by the Court towards its result, emanates an undesired situation inimical to highly dignified profession of Advocacy regarded by all stratums of society,”.
” An advocate is considered as an Officer of the Court, thus, he or she is expected to adhere to the canon and criterion of etiquettes towards professionalism. Advocate is expected to perform his functions amenable to honored and dignified profession as also he or she is duty bound to maintain decorum of the court discharging his or her functions properly not only with colleagues but even with his opponents.”
Most significantly and most remarkably, what constitutes the cornerstone of this sagacious judgment is then encapsulated in para 5 wherein it is postulated that, “Conduct of accepting the brief by a subsequent counsel at the stage of conclusion of arguments by previous counsel and that too before the very date of pronouncement of the judgement, permeates unsolicited impression and does not fetch appreciation rather it spots a stigmatic mole over the person who being a lawyer is believed to follow the traditional decorum in the field of legal profession,”.
“Mr. Pandey who carries respectful position for his professional etiquettes is advised to refrain himself from being introduced as a subsequent engagement in a case where arguments have already been concluded by some other previous counsel, so as to secure faith and regard to his credit,”.
“The Court always commends the fairness and never thinks of subverting or demolition of professional principles and ethics at the end of a lawyer. In case of ineluctable request of the client, nevertheless Sri Pandey should have been conversant with the status of arguments advanced by Mr. Omar Zamin before accepting the brief.”
While taking the most right step in the most right direction, the Bench then hastens to add in para 6 urging that, “Emergence of present incident constrains me to request the luminaries of the Bar Council as well as Bar Association, namely, (i) Chairman, Bar Council of Uttar Pradesh, Allahabad; (ii) President, High Court Bar Association, Allahabad and (iii) Secretary, High Court Bar Association, Allahabad to assign space for consideration of such inappropriate situations, in a joint meeting which may cast a stone to the frequently rising wretched conditions affecting the noble profession of Advocacy, which resultantly becomes one of the reasons for delayed justice and jolts the faith of a litigant over the system.”
Needless to say, the Bench then states in para 20 that, “In view of the settled legal position, as noticed above, it is clear that at this stage, only a prima facie case is to be seen and the complaint cannot be thrown at the threshold and the factum of disputed service of notice requires adjudication on the basis of evidence and the same can only be done and appreciated by the trial court.”
Be it noted, the Bench mandates in para 21 that, “All the submissions made by learned counsel for the applicant are disputed questions of fact. Therefore, when the facts have to be established by way of evidence, this Court while exercising the powers under section 482 of Cr.P.C., cannot interfere with such proceedings. Hence, no grounds are made out for quashing of the proceedings under section 138 of the Negotiable Instruments Act.”
As a corollary, the Bench holds in para 22 that, “On the basis of discussions made herein above, this Court finds that there is no illegality or infirmity in the summoning order dated 05.04.2022 passed by the concerned court below. Therefore, no interference is required at this stage.”
As a corollary, the Bench then directs in para 23 that, “In view of the aforesaid, the application is, accordingly, dismissed.”
Finally, the Bench concludes by holding in para 24 that, “The Registrar General of this Court shall communicate this order to the Chairman, Bar Council of Uttar Pradesh, Allahabad; President, High Court Bar Association, Allahabad and Secretary, High Court Bar Association, Allahabad, apprising them of the suggestions expressed in paragraph nos. 3 to 6 of this order.”
All told, the Allahabad High Court has thus made it pretty clear that changing counsel and that too just before the very date of pronouncement of the judgment permeates unsolicited impression about the dignified profession.
It thus requires no rocket scientist to conclude that the changing of counsel at the drop of a hat in this haphazard manner as so succinctly illustrated above which the Single Judge Bench comprising of Hon’ble Mrs Manju Rani Chauhan has seriously objected to must be checked, combated and crushed totally as desired with the UP Bar Council and High Court Bar Association playing the most pivotal role in it as directed hereinabove.