Jharkhand High Court
Dr. Nishikant Dubey vs State Of Jharkhand Through The ... on 28 October, 2024
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(Cr.) No. 564 of 2024
1. Dr. Nishikant Dubey, aged about 51 years S/o Shri
Radhey Shyam Dubey R/o 18, G.R.G. Road, P.O and
P.S-GRG Road, New Delhi-110001.
2. Anamika Gautam W/o Nishikant Dubey aged about
40 years resident of Opposite B.Ed College, Williams
Town, P.O and P.S Town Deoghar, Dist- Deoghar,
State-Jharkhand.
..... ... Petitioners
Versus
1. State of Jharkhand through the Superintendent of
Police, Deoghar, O/o from his office at office of the
Superintendent of Police, P.O. and P.S.-Deoghar,
District-Deoghar.
2. Shiv Dutt Sharma, aged about 56 years, son of Shri
Jwala Prasad Singh, R/o Shiv Niwas Bawan Bigha,
beside Maa Lalita Hospital, Caster Town, P.O. and P.S.-
Deoghar, District-Deoghar.
..... ... Respondents
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners : Mr. Prashant Pallav, Advocate.
: Mr. Parth Jalan, Advocate.
For the State : Mr. Manoj Kumar, G.A.-III.
: Mr. Deepankar, Advocate.
For the Resp. No. 2 : Mr. Abhishek Krishna Gupta, Advocate.
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05/ 28.10.2024 By a reasoned order dated 31.07.2024, the interim
protection was provided to the petitioners and the respondent No. 2 was
noticed and the matter was fixed for 23.09.2024. On 30.09.2024, Mr.
Abhishek Krishna Gupta, learned counsel has appeared on behalf of
respondent No. 2 by way of filing the vakalatnama and he took two
weeks time to file counter affidavit in the matter, as such, the matter
was adjourned and it was posted for today.
2. Today, when the matter was taken, Mr. Abhishek Krishna
Gupta, learned counsel appearing for the respondent No. 2 has pointed
out that he has filed one I.A. today, however, that I.A. was not available
on record. The Court asked the Court Master to find out whether the
I.A. has been filed or not, pursuant to that on inquiry, the Section has
pointed out that one I.A. has been filed at 01.00 P.M. and the said I.A.
has been produced by the concerned Section in this court and
accordingly, the said I.A. being I.A. No. 11879 of 2024 has been taken
on record.
3. Mr. Gupta, learned counsel appearing for the respondent
No. 2 submits that in the said I.A., it has been pointed out that Mr.
Prashant Pallav, learned counsel was previously an advocate of
respondent No. 2, who was conducting the case of the respondent No. 2
and in view of that his appearance in the present case prejudiced the
case of respondent No. 2. By way of inviting the attention of the court
to para-8 of the said I.A., he submits that in view of para-8 of the writ
petition, it is clear that Mr. Prashant Pallav has appeared on behalf of
respondent No. 2 in O.A. No. 154 of 2013. He submits that in view of
that and in light of Section 132 of the Bharatiya Sakshya Adhiniyam,
2023, the professional relationship continued even if the case is ceased
at the earlier point of time. On these grounds, he submits that
appropriate order may kindly be passed.
4. Mr. Prashant Pallav, learned counsel appearing for the
petitioners submits that he has appeared for the respondent No. 2 in a
case arising out of The Securitisation and Reconstruction of Financial
Assets and Enforcement of Security Interest Act, 2002 as a junior
counsel of Mr. A.K. Sinha, learned senior counsel in W.P.(C) No. 3710
of 2012, which was decided by a co-ordinate Bench of this court by
order dated 07.10.2014. He submits that the cause of action of the
present FIR is 24.06.2023 and this case is nothing to do with the O.A.
case and in the O.A. case, pursuant to the order of the learned Tribunal,
property has already been auction sold on 20.12.2023. He further
submits that apart from that nothing is there to suggest that any material
has been disclosed by him of the respondent No. 2. He then submits
that the petitioner No. 2 is the purchaser trustee and petitioner No. 1 is
nothing to do with the said trust. He submits that in anticipatory bail, he
has appeared for Shiv Dutt Sharma, relating to the CBI matters, being
RC-0007/2010, which was instituted against Maa Lalita Hospital,
against the Director for the fraud of the bank loan. He further submits
that the respondent No. 2 is in habit of making allegation against the
counsels. He submits that only with the ulterior motive, the said I.A.
has been filed, as the matter was fixed for final hearing today. He
further submits that Mr. Abhishek Krishna Gupta was also the counsel
in W.P.(PIL) No. 1248 of 2022 on behalf of the petitioners and in that
case, he has further made an allegation against one of the senior
advocate of this court and the Division Bench dealt with that case and
after hearing the parties, has dismissed the said PIL by way of imposing
a cost of Rs. One lakh.
5. It is very unfortunate that this petition has been filed that
too making allegation against a practicing advocate of this court. Many
lawyers are appearing at one point of time for one petitioner and at
another point of time for another.
6. In para-8 of the I.A. No. 11879 of 2024, it has been stated
as under:-
"8. That, thus, it is stated and submitted that
the previously, Petitioners Advocate Mr
Prashant Pallav was directly and completely
involved with the PMCH as an Advocate on
behalf of Respondent No. 2 herein as is self-
evident from Para-8 (dealing with OA No.
154/2013) of the WP (Cr) 564/2024. Also, Mr
Prashant Pallav has been the Advocate of
Respondent No. 2. More importantly, there is
long and continuous advocate-client
relationship between Mr Prashant Pallav
with Respondent No. 2, which cannot be
forgettable / forgotten. Thus, an element of
collusion between the Petitioners and Mr
Prashant Pallav as an Advocate is inferable.
It is also worth noting that by way of such
relationship fraud has been played upon the
Hon'ble Court in obtaining interim relief vide
Order dated 31/07/2024 passed in the instant
WP (Cr) No. 564/2024. Needless to say, on
this ground alone the prayers made in the WP
(Cr) No. 564/2024 is fit to be set aside in the
light of the Hon'ble Supreme Court judgment
/order/decision dated 19/01/2024 in
CRIMINAL APPEAL NO. 303/2024 [ Kusha
Durukka Vs The State of Odisha]."
7. Paragraph-8 of the writ petition is quoted as under:-
"8. That it is pertinent to mention that the
informant has concealed material facts in the
Impugned FIR. The facts necessary for the
adjudication of the instant case are as
under:-
a. It is submitted that once the account of the
informant was declared as a Non-Performing
Asset, Banks filed an Original Application
before the Debt Recovery Tribunal, Ranchi
which was registered as O.A. No. 154 of 2013
for recovery of a sum of Rs.
1,41,39,09,761.56 (INR One Hundred and
Forty One Crores Thirty Nine Lakhs Nine
Thousand Seven Hundred and Sixty One and
Paise Fifty Six Only).
b. That the O.A. No. 154 of 2013 was allowed
by the Debt Recovery Tribunal, Ranchi vide
order dated 26th of June 2015 and recovery
certificate was issued for recovery of an
amount of Rs. 1,41,39,09,761.56 (INR One
Hundred and Forty One Crores Thirty Nine
Lakhs Nine Thousand Seven Hundred and
Sixty One and Paise Fifty Six Only).
c. That after the issuance of Recovery
Certificate, a Demand Notice dated 13th of
July 2015 was issued by the Recovery Officer,
Debt Recovery Tribunal, Ranchi wherein M/s
Paritran Medical College and Hospital was
called upon to pay the certificate amount.
d. That thereafter, the Recovery Officer vide
order dated 13th of April 2016, issued the
Warrant of Attachment of Immovable
property mortgaged with the consortium
bank which was forwarded to the Recovery
Inspector. Another warrant of attachment of
movable properties was issued on 27th of
October 2016 and receiver was appointed for
preparation of inventory of movable
properties.
e. That thereafter repeated efforts were taken
on the part of the Recovery Officer, Debt
Recovery Tribunal, Ranchi and the Bank to
auction the Scheduled Property. The
Scheduled Property was again and again put
to auction however no bidders turned up.
Finally in the auction notice issued vide
order dated 8th of November 2023 wherein
the Auction was scheduled on 20th of
December 2023, the property was purchased
by Baba Baidyanath Medical Trust. It would
not be out of place to mention but this was
the 11th time the property was put up for
auction.
f. That it is pertinent to mention that before
the date of scheduled auction i.e., 20th of
December 2023, M/s Paritran Medical
College and Hospital had filed an
Interlocutory Application before the
Recovery Officer on 18th of December 2023
for stay of the Auction Scheduled on 20th of
December 2023. The Interlocutory
Application was heard by the Recovery
Officer on 19th of December 2023 and was
rejected taking into account the previous
conduct of M/s Paritran Medical College and
Hospital.
g. That the auction of the Scheduled Property
took place on 20th of December 2023 and
Baba Baidyanath Medical Trust was declared
as the Successful Bidder. The order of
confirmation of the sale along with the
Certificate of Sale was issued in favour of
Baba Baidyanath Medical Trust on 23rd of
January 2024.
h. That in the meantime, M/s Paritran
Medical College and Hospital filed a writ
petition under Article 226 of the Constitution
of India before the Hon'ble High Court of
Jharkhand against the order dated 19th of
of 2015 which was registered as W.P.(C) No.
165 of 2024. It is imperative to mention that
the informant knowing the fact that the
Scheduled Property has been auctioned to
Baba Baidyanath Medical Trust on 20th of
December 2023 itself, filed the Writ Petition
on 12th of January 2024 without impleading
the Baba Baidyanath Medical Trust as Party
Respondent.
Baidyanath Medical Trust file an
intervention petition which was allowed. The
trust also challenged the maintainability of
the writ petition.
l. That it is submitted that the Bank filed a
counter- affidavit in WP(C) 165 of 2024,
wherein it was stated that the possession was
handed over to Baba Baidyanath Medical
Trust on 24th of January 2024 at 3:17 Ρ.Μ.
j. That it is submitted, that after considering
the entire facts of the case, this Hon'ble Court
was pleased to dismiss the writ petition on
the grounds of maintainability vide order
dated 13th of February 2024 passed in
W.P.(C) No. 165 of 2024."
8. Looking into the averments made in para-8 of the writ
petition, it is crystal clear that the reference therein is with regard to one
O.A. case arising out of a debt recovery tribunal and that is the subject
matter in para-8 of the writ petition and that reference has been made in
para-8 of the said I.A. In the said I.A., the order of the co-ordinate
Bench has been annexed with regard to the said O.A. at Page-18 in
W.P.(C) No. 3710 of 2012, which was decided by the judgment dated
14.10.2014, which clearly suggests that the said case relates to The
Securitisation and Reconstruction of Financial Assets and Enforcement
of Security Interest Act, 2002. The cause of action of the present FIR is
dated 24.06.2023 and it was pointed out that the petitioner No. 1 is
nothing to do with the trust namely Baba Baidyanath Medical Trust and
the petitioner No. 2 is one of the trustee. Further Annexure-2 is an order
of the Debt Recovery Tribunal, Ranchi, in R.C. 236 of 2015, which is
recovery proceedings in which Mr. A.K. Yadav, learned counsel has
appeared on behalf of the certificate debtors.
9. Section 132 of Bharatiya Sakshya Adhiniyam, 2023 is the
para materia of Section 126 of the Indian Evidence Act and the said
Section deals with the dual provision. This provision protects the party
as well as the counsel. This protective umbrella also saves the counsel
from unwanted and unnecessary proceedings. After all the counsel is
only the carrying the brief of the client and he has no personal interest
in the matter, being a member of a noble profession and the society
considers him as indispensable. It is true that the lawyer has to show
utmost care while dealing with the case of the clients. The lawyers
cannot be said to be with the parties and similarly for the fault
committed by the parties, the lawyers cannot be punished. In case,
proceedings are also taken against the lawyer for the acts or omission
committed by their clients, no lawyer would be able to discharge his
function without fear. This is an independent profession and as such,
the lawyer should be permitted to discharge his function without any
external pressure.
10. The way, Mr. Abhishek Krishna Gupta, learned counsel has
filed the present I.A. and as pointed out, which has been noted supra
against one of the senior lawyer of this court, he has also made the
same allegation in a W.P.(P.I.L), which was dismissed with a cost of
rupees one lakh, which clearly suggests that with ulterior motive and
maliciously the present I.A. has been filed, which is required to be dealt
properly.
11. Thus, there is no communication by the counsel for the
petitioners for any illegal purpose and on these grounds, it is crystal
clear that there is no professional miscommunication by the learned
counsel appearing for the petitioners and if such a position is there in
filing of the I.A., in such a casual way, is a very serious thing and this is
required to be dealt with otherwise, the Pandora box will be kept open
to file cases against the lawyers if the Bench is not suited to any of the
litigant.
12. In view of the above facts, the court finds that prima facie
with ill motive so that this court cannot decide the case today, the
respondent No. 2 has filed the aforesaid I.A., however, at the earlier
point of time, two weeks time was taken by the learned counsel
appearing for the respondent No. 2 to file counter affidavit and the
counter affidavit has not been filed as yet and today itself, the aforesaid
I.A. has been filed even the prayer is not made today for any time to file
counter affidavit.
13. As such, the aforesaid I.A. is misconceived one and the
same is dismissed with a cost of rupees one lakh. The cost shall be
deposited before the Member Secretary, Jharkhand State Legal Services
Authority, Ranchi within two weeks. Respondent No. 2 is directed to
file the receipt of the same in the present case.
14. Learned counsel appearing for the respondent No. 2 submits
that the time of the filing of receipt of the fine amount may kindly be
extended, as the respondent will like to prefer the SLP before the
Hon'ble Supreme Court.
15. In view of his such submission, the respondent No. 2 is
directed to file the receipt of the fine amount in the present case within
four weeks.
16. Let this matter appear on 09.12.2024.
17. The respondent No. 2 is directed to comply the earlier order
by way of filing counter affidavit within two weeks. If the counter
affidavit will not be filed before the next date, the writ petition shall be
decided in absence of the counter affidavit and no further adjournment
will be granted.
18. Interim order, granted earlier, shall remain in force till the
next date of listing.
(Sanjay Kumar Dwivedi, J.)
Amitesh/-
