Suraj Bhan Karwariya @ Suryabhan vs State Of U.P.
2017 Latest Caselaw 4454 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. 42
 
AFR
 
Judgment Reserved on 11.8.2017
 
Judgment Delivered on 15.9.2017
 
Order on Crl. Misc. Application No. 176215 of 20217.
 
Suraj Bhan Karwariya @ Suryabhan vs. Mrs. Swati Agarwal, Advocate.
 
In
 
Crl. Misc. Bail Application No. 9284 of 2017.
 
Suraj Bhan Karwariya @ Suryabhan vs. State of U.P.
 

 
Hon'ble Ramesh Sinha, J.

1. Heard Sri Bhuwan Raj, learned counsel for the applicant and Sri Abhishek Amritanshu, learned counsel for opposite party Mrs. Swati Agarwal.

2. By means of present application, the applicant has prayed for taking judicial notice of conduct of Mrs. Swati Agarwal, Advocate and issue notice to her as to why she should not be punished for contempt of High Court being a Court of Record and as to why her name be not removed from the Rolls of Advocates of High Court being her conduct unbecoming of an officer of the Court.

3. The present application has been filed on behalf of the applicant under Article 215 of the Constitution of India against opposite party Mrs. Swati Agarwal, Advocate High Court, Ex. Special Counsel for the State for issuing notice to her on the aforesaid application for committing contempt of this Court.

4. Though notice was not issued to opposite party Mrs. Swati Agarwal but before issuing notice to her it was deemed appropriate that objection may be invited by her, who has submitted her objections on the present application.

5. Pleadings have been exchanged between the parties.

6. Learned counsel for the applicant submitted that the applicant is in custody in connection with case crime no. 515 of 1996 under Sections 147, 148, 149, 302, 307/34 I.P.C. and 7 C.L.A. Act, police station Civil Lines, District Allahabad since 28.4.2015. He has filed the aforesaid bail application on behalf of the applicant on 8.3.2017 which was taken up by this Court on 10.3.2017 being tied up to this Bench. A copy of the notice of bail application was served to opposite party Mrs. Swati Agarwal being Special for the State of U.P. at that point of time. The Court granted time to the parties to exchange their pleadings on 10.3.2017. He further submitted that Mrs. Swati Agarwal opposite party was removed from the post of Special Counsel of the State of U.P. on 30.3.2017. He submitted that on 12.5.2017 Mrs. Swati Agarwal opposite party after being removed as Special Counsel of the State of U.P. on 30.3.2017 itself appeared having no locus to appear in the instant bail application and laid stress before the Court that she is still the Special Counsel of the State of U.P. and in order to delay the hearing of the bail application continued laying stress that she has not been removed from the post of Special Counsel on which this Court passed an order directing the Advocate General to inform the Court whether Mrs. Swati Agarwal opposite party is still the Special Counsel for the State of U.P. or not. He argued that Mrs. Swati Agarwal opposite party played fraud in open Court in order to stall the proceedings of the Court and in order to delay the hearing of a bail application in which the pleading were already completed and the matter was ripe for hearing and having no locus to appear in the instant bail application appeared and gave a false statement. It is further submitted that she deliberately gave a false statement that she is still the Special Counsel for the State of U.P. though it was well within her personal knowledge that she is on that date not even a counsel in the instant bail application. He argued that by giving a false statement in Court on 12.5.2017 she managed to get the case adjourned for 19.5.2017. On 19.5.2017, she further took an adjournment by stating before the Court that she now wishes to appear from the side of informant and took another date thereby delaying the hearing of the bail application in which the pleading were already completed. He argued that Mrs. Swati Agarwal opposite party appeared on 12.5.2017 and 19.5.2017 without having any authority to appear in the instant bail application. He argued that it would be a professional misconduct if she appears from the side of the informant being the Ex. Special Counsel for the State of U.P. He submitted that it is very serious that an Advocate on the Rolls of the High Court appears in a case to delay the proceedings of a bail application when the pleadings are already completed and the matter is ready and ripe for hearing. It was next submitted that the High Court is a Court of record and its purity and dignity is to be maintained by the officers of the Court.

7. On 26.5.2017 when the matter was taken up, it was submitted by learned counsel for the applicant that Mrs. Swati Agarwal opposite party, who was appearing as Special Counsel on behalf of the State in the present matter, her appointment has already been withdrawn by the State on 30.3.2017 and even thereafter she is appearing on behalf of the complainant which is barred by Section 126 of the Evidence Act. It was further submitted by him that if Mrs. Swati Agarwal opposite party appears on behalf of the complainant, it would be in violation of Section 126 of the Evidence Act. He submits that the Bar Council Rules prohibits violation of Section 126 of the Evidence Act by any lawyer directly or indirectly. He submitted that it is specifically mentioned in the Bar Council Rules, Chapter VI, Rule 17 that an Advocate shall not, directly or indirectly, commit a breach of the obligations imposed by Section 126 of the Indian Evidence Act, hence the above rule is mandatory rule to be followed by an Advocate.

8. He pointed out that though the matter is still sub-judice before this Court on the issue Mrs. Swati Agarwal opposite party despite that the matter being sub judice before the Court and she was required to answer the affidavit filed in support of the application under Article 215 of the Constitution of India, has filed vakalatnama on behalf of a lady victim, who is the wife of the deceased which amounts to deliberate violation of the Hon'ble Court's order dated 26.5.2017 passed in the present application and further criminal contempt committed by her. He also submitted that some lawyer has also given no objection on the same vakalatnama filed on behalf of the lady victim which also needs to be answered by Mrs. Swati Agarwal opposite party.

9. The opposite party has further committed another criminal contempt by filing another Vakalatnama on 7.7.2017 in the Registry on 23.7.2017 on behalf of the informant which deliberate and willful violation of the Hon'ble Court's order dated 26.5.2017. In support of his arguments, he has placed reliance on the judgment of the Apex Court in the case Suo Motu Contempt Petition No. 312 of 2013 in Civil Appeal No. 1398 of 2005 titled as Rameshwar Prasad Goyal, Advocate In Re reported in (2014)1 SCC 572 which has highlighted the role and behaviour of a lawyer before the Court and in the Society. It has been reiterated by the Hon'ble Apex Court that "law is not trade, briefs no merchandise".

10. He further submitted that Mrs. Swati Agarwal opposite party is personally interested in the matter and has the courage to defy the order dated 26.5.2017 and has committed subsequent criminal contempt in willfully defying the orders of the Court, thus, she is liable to be punished for the contempt of Court.

11. Sri Abhishek Amritanshu, learned counsel appearing on behalf of Mrs. Swati Agarwal opposite party has vehemently opposed the argument of learned counsel for the applicant and has submitted that Mrs. Swati Agarwal opposite party, who was removed from the post of Special Counsel for the State in the present matter on 30.3.2017 had no knowledge about her removal as the said order was not communicated to her by the State Government or any of its State machinery and for the first time the said order was communicated to her on 1.6.2017, hence the appearance of Mrs. Swati Agarwal opposite party in the present case as Special Counsel for the State prior to that is well within right and within the parameters of professional ethics. He submitted that the original appointment order vide G.O. dated 11.4.2014 has not yet been cancelled. He raised a preliminary objection regarding the maintainability of present application under Article 215 of the Constitution of India as it has been argued by him that the act attributed to the deponent is unauthorized appearance before this Court. He submitted that even though the allegations are taken to be true, contempt is not made out against her in view of the provisions of Section 2 (b) and 2 (c) of the Contempt of Courts Act, 1971, hence the act alleged to have been committed by Mrs. Swati Agarwal opposite party do not come in the purview of the above provisions, hence the present application is liable to be dismissed with heavy cost. He next argued that it is not a business of the accused applicant to decide that who would appear on behalf of the State or he complainant and the deponent has been divested to appear on behalf of the State only w.e.f. 1.6.2017 the date on which the deponent was communicated the order of cancellation of appointment order. The present application is filed on vexatious and frivolous grounds to waste the valuable time of this Hon'ble Court. The present application is filed without sufficient materials and it appears that the same has been filed to intimidate or terrorize the deponent and to put her under mental agony.

12. Considered the submissions advanced by learned counsel for the parties and perused the record.

13. It is an admitted fact that Mrs. Swati Agarwal opposite party was appearing as Special Counsel for the State in the present matter prior to her removal on 30.3.2017 and her appearance in the matter on behalf of the State being Special Counsel is not disputed by the accused applicant also. The said objection was also not raised by learned counsel for the applicant till 28.4.2017 when the aforesaid bail application has come up before the Court for disposal on 28.4.2017. It is apparent that the parties were directed to exchange their pleadings and it was only only 12.5.2017 an objection was raised by Sri Bhuwan Raj, learned counsel for the applicant that Mrs. Swati Agarwal is no longer Special Counsel for the State which disputed by her for which a query was made from the learned Advocate General by this Court to inform whether she is still Special Counsel for the State or not and on 24.5.2017, the present application under section 215 of the Constitution of India has been moved by the accused applicant against Mrs. Swati Agarwal opposite party on the ground that she was appearing in the matter as Special Counsel for the State though her power to appear as Special Counsel in the matter on behalf of State has been withdrawn on 30.3.2017 which was barred by law according to Section 126 of the Evidence Act. The said contention of the applicant was refuted by Mrs. Swati Agarwal opposite party in her objection as it was stated by her that her appointment as Special Counsel for the State in the present matter on 30.3.2017 by the State was not at all communicated to her and for the first time she came to know about the same on 1.6.2017 through S.S.P. Allahabad a copy of which has been annexed as annexure-R-5, thus her appearance before this Court prior that cannot be said to be contemptuous in view of the provisions of Section 2 (b) or 2 (c) of the Contempt of Courts Act. Moreover the filing of Vakalatnama by her on behalf of the informant as well as of the aggrieved victim lady, who is the wife of the deceased in spite of the matter being sub judice was also does not hold good as has been alleged by learned counsel for the applicant as there appears to be no order of the State Government that she in view of Section 126 of the Evidence Act, cannot be allowed to appear in the matter on behalf of the informant or the victim as she had been the Special Counsel for the State, hence it cannot be said that she is guilty of any professional misconduct under the Bar Council Rules as has been alleged by learned counsel for the applicant. From the present application it transpires that the accused applicant just to create pressure on her has moved the present application which is not at all appreciated as an Advocate, who appears in a case only to plead the cause of his/her client and any such move on behalf of the litigant to create pressure on an Advocate so as not to let him or her perform professional duty for his ulterior motive, cannot be allowed to be encouraged by this Court. The complainant of the case is though represented by a private counsel Sri Yogesh Agarwal, who has been appearing in the matter and it is prerogative of the informant/complainant to engage one or more counsel of his choice is his or her right and further the victim or an aggrieved person, who is closely related to the deceased in view of Section 2 (wa) Cr.P.C. which defines 'the victim' has a right to appear in the case either personally or through his or her counsel thus the present application is wholly misconceived.

14. Moreover, in the present matter, if there can be any grievance of any party for appearance of Mrs. Swati Agarwal on behalf of the informant/complainant or the victim can be said to be State only but definitely not the applicant, who is an accused in the present case.

15. Learned A.G.A. for the State has also not objected the appearance of Mrs. Swati Agarwal opposite party in the matter on behalf of the informant or the victim nor has been able to show that the State Government has passed any order in the matter restraining Mrs. Swati Agarwal opposite party to appear in the matter on behalf of the complainant or the victim and it appears that the accused applicant for his ulterior motive has filed the present application and simply there has been some adjournment sought by Mrs. Swati Agarwal opposite party for filing vakalatnama on behalf of the informant or the victim does not amount to any contempt of Court or any professional misconduct by her.

16. The Court desired to impose a cost on the applicant for moving such mischievous application but restrain itself from the same taking into account that the applicant is already in jail since 28.4.2015.

17. In view of the foregoing discussions, the present application is dismissed.

18. Let the matter be listed on 22.9.2017 for the disposal of the bail application of the applicant.

Dated :-15.9.2017

Shiraz.