Tripura High Court
Shyamasree Debbarma vs The State Of Tripura on 12 February, 2025
Page 1 of 16
HIGH COURT OF TRIPURA
AGARTALA
Crl..Petn. No.39/2024
Shyamasree Debbarma, W/O. Rakesh Barman, resident of: Chinaihani, P.O. &
P.S.-Airport, District:-West Tripura, PIN-799009.
......... Petitioner (s).
For and on behalf of:
Rakesh Barman, S/O. Late Madan Barman, resident of: Chinaihani, P.O. &
P.S.-Airport, District:-West Tripura, PIN-799009.
......... Accused (s).
VERSUS
1. The State of Tripura.
2. The L.R. & Secretary, Law & Parliamentary Affairs Department,
Government of Tripura, New Secretariat Building, Gurkhabasti, P.S.:N.C.C.,
Agartala. (Notice to be served through the Ld. P.P., High Court of Tripura,
Agartala).
3. Sri Sankar Lodh, Advocate, S/O. Lt. Tulsi Ranjan Lodh, resident of:
Ramnagar Road No.8, P.O.-Ramnagar, P.S.-West Agartala, District:-West
Tripura, PIN-799002. (Notice to be served at Sri Sankar Lodh, Advocate, Ld.
Member, High Court Bar, Agartala).
......... Respondent(s).
For Petitioner (s) : Mr. Samrat Kar Bhowmik, Sr. Advocate,
Mr. Ezekiel Lalramzauva Darlong, Advocate,
Mr. Sreekanta Bal, Advocate.
For Respondent(s) : Mr. Raju Datta, P.P.,
Mr. Rajib Saha, Addl. P.P.,
Mr. Sankar Lodh, Advocate.
HON'BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH
Date of hearing and judgment: 12th February, 2025.
Whether fit for reporting : YES.
JUDGMENT & ORDER(ORAL)
Heard Mr. Samrat Kar Bhowmik, learned senior counsel assisted
by Mr. Sreekanta Bal, learned counsel appearing for the petitioner, Mr. Raju
Datta, learned Public Prosecutor assisted by Mr. Rajib Saha, learned Addl.
Public Prosecutor appearing for the respondents No.1 & 2-State and Mr.
Sankar Lodh, learned counsel, respondent No.3 herein, appearing in person.
2. Petitioner represents the accused Rakesh Barman who is one of
the 8(eight) accused persons in Airport P.S. case No. 2024ARP037 which was
registered by the informant S.I. Srikanta Guha in relation to an incidence which
took place on 30.04.2024 around 2025 hours as per telephonic information
received by him that a person has been shot at Hatipara under Airport P.S. The
police party rushed to the spot and found a body lying by the side of the road
with bullet wounds. On being brought to ILS Hospital, the doctor declared him
as dead. It alleges that from local inquiry, it was learnt that at about 2010 hours
one miscreant shot upon a person namely Durga Prasanna Deb alias Biki while
he was sitting in a vehicle bearing registration No.TR-06-A-0745 which was
parked at Hatipara in front of one medicine shop of Sri Bikash Das of Salbagan
BSF Para. He fell down on receiving the bullet injury by the side of the road
from his vehicle. The miscreants fled away. Subsequently, some kith and kin of
the deceased arrived at the hospital and it was learnt that 5(five) named persons
including the present accused and some others have committed the murder of
Durga Prasanna Deb alias Biki, S/O. Ranjit Kumar Deb of Ushabazar,
Chinaihani, P.S. West Agartala in furtherance of a criminal conspiracy.
3. Pursuant to the investigation, the police has lodged charge-sheet
against 8(eight) persons including the present accused Rakesh Barman on
27.07.2024 bearing Airport P.S. charge-sheet No.44 of 2024. In between, on
07.05.2024, Mr. B.N. Majumder, learned senior counsel, has been appointed as
a Special Public Prosecutor to appear and conduct the case bearing
No.2024ARP037 under Sections 302/120B of the Indian Penal Code (IPC, for
short) and Section 27 of the Arms Act on behalf of the State prosecution by the
Law Department. Charge-sheet was filed under Sections 302/120B of the IPC
and Section 27 of the Arms Act and later Section 201 of the IPC was also
added. On 09.05.2024 Mr. Sankar Lodh, learned counsel, was appointed as
Special Public Prosecutor to appear and conduct the case bearing
No.2024ARP037 under Sections 302/120B of the IPC and Section 27 of the
Arms Act on behalf of the State prosecution by the Law Department,
Government of Tripura.
4. The petitioner moved an application before the learned Chief
Judicial Magistrate, West Tripura, Agartala raising objections regarding
appointment of the learned Advocate Mr. Sankar Lodh on behalf of the
prosecution. It was asserted that Mr. Sankar Lodh was engaged as a counsel of
Rakesh Barman and Debabrata Barman in connection with Airport P.S. case
bearing No.2024ARP022 dated 05.03.2024 registered under Sections 448/326/
427/506 read with Section 34 of the IPC at the instance of the informant Smt.
Swapna Dey. Mr. Sankar Lodh, learned counsel, had appeared for these two
accused persons in that case in an anticipatory bail application bearing No. AB
14 of 2024 before a Coordinate Bench of this Court on 16.04.2024. The said
anticipatory bail application was disposed of on the same date directing the
parties to appear before the learned Elaka Magistrate.
5. The FIR No.22 of 2024 at the instance of Smt. Swapna Dey, wife
of Dilip Dey alleges that on 03.03.2024 at around 1.15 p.m. in the afternoon
she along with her husband Sri Dilip Dey was at their house at Surja Sen Para,
Ushabazar. Their only son Biswajit Dey was not at home at that time since he
had gone out in his auto rickshaw. At that time, the accused persons namely
Rakesh Barman, the present accused, S/O. Late Madan Barman, aged 32 years
and Debabrata Barman, aged 31 years, residents of Ushabazar, Chinaihani, P.S.
Airport started calling her son loudly by name as "Partha" and then forcibly
entered their house and assaulted her with pistol and sharp weapon and
ransacked her house. They smashed all the things in her house. The accused
persons together beat her and her husband severely asking as to where the boy
was hidden. Her husband was taken to IGM Hospital for treatment. The
accused persons left saying that "Partha" has been saved today but he will not
be saved tomorrow. It is alleged that the accused persons were under the
influence of alcohol. They also threatened that if the incidence is reported with
the police, they will kill her and her husband and throw away the body. The
instant FIR was instituted on 05.03.2024 at 1930 hours. The petitioner,
therefore, objected to the engagement of Mr. Sankar Lodh, learned counsel, as
a Special Public Prosecutor in Airport P.S. case No. 2024ARP037 instituted on
01.05.2024.
6. Learned Chief Judicial Magistrate, West Tripura, Agartala did not
find any substance in such objection as according to him, Mr. Sankar Lodh,
learned counsel, who appeared for the accused Rakesh Barman in AB No.14 of
2024 as defence counsel could not be said to have any relation with this case.
The situation in the present case was completely different from the case
referred. However, the learned CJM, West Tripura also proceeded to observe
that for maintaining the confidence of the defence side and impartiality of this
Court since another Special Public Prosecutor learned senior counsel Mr. B.N.
Majumder has been appointed by the Law Department, learned Court would
prefer to hear learned senior counsel Mr. B.N. Majumder on any prayer made
by the prosecution or defence regarding the accused Rakesh Barman, i.e. the
present accused. The accused Rakesh Barman being aggrieved by rejection of
his objection has preferred this petition under Section 482 of the Code of
Criminal Procedure (Cr.P.C., for short).
7. Mr. Samrat Kar Bhowmik, learned senior counsel for the
petitioner, has in support of the prayer adverted to both factual aspects and
legal grounds. He has relied upon a number of decisions including those
rendered by the Privy Council and the Court of Criminal Appeals of Tennessee
at Knoxville. He has also placed reliance upon the Halsbury's Laws of England,
Third and Fourth Edition, Volume 3 each, page-47 and page-626 respectively.
The decisions on which he has relied upon are as under:
(i) Public Prosecutor, Andhra Pradesh vrs. Kothakapu
Etreddy Venkata Reddi reported in AIR 1961 AP 105;
(ii) Tajendra Chandra Dhar and others vrs. Tajendra Lal
Ghosh and others reported in 1939 SCC OnLine Rang 113;
(iii) U Ko Ko Gyi vrs. U San Mya reported in 1930 SCC
OnLine Rang 28;
(iv) Mary Lilian Hira Devi vrs. Kunwar Digbijai Singh
reported in 1917 AIR (PC) 80;
(v) David Lloyd Neil vrs. Her Majesty The Queen reported in
(2002) 3 R.C.S.;
(vi) State vrs. Phillips reported in 672 S.W.2d 427 (Tenn. Crim.
App. 1984).
8. The crux of the submission of learned senior counsel for the
petitioner is that it is not the actual prejudice which the party or the accused has
to demonstrate to the appearance of a counsel against his cause since a mere
apprehension or likelihood of conflict of interest on account of his engagement
and appearance in the previous case, i.e. Airport P.S. case No. 2024ARP022 is
enough to justify his objection that the engagement of Mr. Sankar Lodh,
learned counsel, as a Special Public Prosecutor for the State would be not only
improper in the eye of law but also lead to conflict of interest in a cause of such
serious nature where the present accused Rakesh Barman has been accused of
the charge of murder. Relying upon the decisions rendered as above, it is
submitted that the prior engagement of the counsel may not be in the same case
but to an unrelated case. If Mr. Sankar Lodh, learned counsel, is allowed to
appear as a Special Public Prosecutor on behalf of the prosecution, the
confidential information that he has shared with his erstwhile counsel is likely
to be prejudicial to his interest and may cause miscarriage of justice. Therefore,
the impugned order may be set aside. Mr. Sankar Lodh, learned counsel,
appointed as Special Public Prosecutor in Airport P.S. case No. 2024ARP037
may be prohibited from conducting the case on behalf of the prosecution
against the present accused Rakesh Barman.
9. Mr. Raju Datta, learned Public Prosecutor, has filed affidavit and
additional affidavit strongly controverting the allegations in order to dispel the
charge of likelihood of bias against the appointment of Mr. Sankar Lodh,
learned counsel, as Special Public Prosecutor. The substance of his submission
is that Airport P.S. case No. 2024ARP022 in which learned counsel Mr. Sankar
Lodh appeared for the accused Rakesh Barman in an anticipatory bail
application being A.B. No.14 of 2024 before this Court is totally unrelated to
the present criminal case, i.e. Airport P.S. case No.2024ARP037. The
informant in Airport P.S. case No.2024ARP022 is a lady. The offences alleged
are under Sections 448/326/427/506 read with Section 34 of the IPC. The
engagement of Mr. Sankar Lodh, learned counsel, came to be terminated on
16.04.2024 itself on disposal of the said anticipatory bail application being
A.B. No.14 of 2024. The informant of Airport P.S. case No. 2024ARP022 is
nowhere shown to be connected or related to the victim in Airport P.S. case
No.2024ARP037. Airport P.S. case No.2024ARP037 has been instituted by
S.I. Srikanta Guha on an information received about a cognizable offence of
murder of Durga Prasanna Deb alias Biki on 30.04.2024 at 2025 hours. It
cannot be said by any stretch of imagination that in such circumstances, there
could be any possibility of conflict of interest on the appointment of Mr.
Sankar Lodh, learned counsel, as Special Public Prosecutor in connection with
Airport P.S. case No.2024ARP037 or that the case of the accused Rakesh
Barman can be prejudiced. Therefore, learned CJM, West Tripura, Agartala has
rightly rejected such objection.
10. Learned Public Prosecutor has also referred to his affidavit to
point out that the present accused has been facing more than one cases such as,
(i) West Agartala P.S. case No.2020 WAG 123 dated 10.08.2020 under
Sections 457/354/427/395 of the IPC on the written complaint of one Amit
Ghosh, (ii) Airport P.S. case No.2021 ARP 001 dated 01.01.2021 under
Sections 364A/34 of the IPC on the written complaint of one Sri Mrinal Kanti
Deb, and (iii) Airport P.S. case No.2021 ARP 005 dated 08.01.2021 under
Sections 387/506/34 of the IPC registered on the basis of a written complaint
forwarded by the office of the District Magistrate & Collector, West Tripura
filed by one Sri Nabalok Das. It is pointed out that in none of the above
mentioned cases, Mr. Sankar Lodh, learned counsel, has ever appeared on
behalf of the accused Rakesh Barman and is no way connected with the present
case, i.e. Airport P.S. case No.2024 ARP 037. It is pointed out that charge-
sheet has been submitted in the instant Airport P.S. case No.2024 ARP 037, but
further investigation is underway. All these go to show that the apprehension of
the petitioner is totally misplaced. Learned Public Prosecutor has, therefore,
prayed that the present petition may be dismissed.
11. Mr. Sankar Lodh, respondent No.3 appearing in person, has made
strong objection to the prayer. He has also filed an affidavit to traverse the
assertions made in the criminal petition. He has also sought to distinguish the
decisions relied upon by the learned senior counsel for the petitioner on the
point that the common thread which flows out of all these decisions is that the
engagement of a counsel may be improper on account of having appeared for
other party in the same case but such engagement could also cause likelihood
of apprehension of bias or conflict of interest if the litigation is either arising
out of the previous case or is in relation to the subject matter of the previous
case. It is submitted that in no case his engagement in an anticipatory bail
matter on behalf of the same accused in connection with Airport P.S. case
No.2024 ARP 022 in A.B. No.14 of 2024 before this Court could possibly raise
any likelihood of bias or conflict of interest on his engagement as a Special
Public Prosecutor in Airport P.S. case No.2024 ARP 037. His engagement in
the anticipatory bail matter came to be terminated on disposal of the
application on 16.04.2024. Even in the wildest of imagination, it cannot be
assumed that the learned counsel could have any connection or information in
relation to a totally different incidence which occurred 15(fifteen) days
thereafter with the victim party in both the cases being completely unrelated. If
in such a situation, engagement of a counsel for a party in a matter
subsequently which is totally unrelated and which does not either arise out of
the previous litigation or is not the same litigation, could be said to be
operating in the zone of conflict of interest to bar his engagement.
12. Mr. Sankar Lodh, learned counsel, has placed reliance upon the
decision of the Orissa High Court in the case of State vrs. Lalit Mohan Nanda
reported in AIR 1961 ORISSA 1 and in the case of Mary Lilian Hira Devi vrs.
Kunwar Digbijai Singh reported in 1917 AIR (PC) 80. Relying upon these
decisions, he submits that it could only constitute an impropriety of a legal
practitioner who has acted for one party in a dispute while acting for the other
party in subsequent litigation between them if it is related to or arising out of
that dispute. Such conduct may be open to misconception and is likely to raise
suspicion in the mind of the original client and embitter the subsequent
litigation. That would be concerning the honour of the profession. No such
eventuality arises in the present case. Therefore, the apprehension of the
present petitioner is completely misplaced. He is only interested in protracting
the criminal trial. Therefore, the petition may be dismissed.
13. I have heard learned counsel for the parties and the respondent
No.3 in person at considerable length. I have also taken note of the materials
placed from the record which have been referred to in some detail hereinabove.
I have also perused the decisions relied upon and cited by the learned counsel
for the rival parties and also respondent No.3 in person.
14. In the opinion of this Court, the inherent powers of this Court are
to be exercised to prevent abuse of the process of any Court or otherwise to
secure the ends of justice or if it is felt necessary to give effect to any order
under this Code. Though the scope of the inherent jurisdiction of this Court
under Section 482 of the Code is wide and quite unbridled but if the Court is of
the opinion that the course adopted by the learned trial Court is not leading to
cause any abuse of the process of the Court or is necessary to secure the ends
of justice, it would refrain from exercising its jurisdiction.
15. In the facts of the present case noted above in conspicuous details,
this Court finds that the apprehension of the petitioner as to likelihood of bias
or conflict of interest on the part of the respondent No.3, Mr. Sankar Lodh,
learned counsel, who has been appointed as a Special Public Prosecutor to
conduct the case on behalf of the State prosecution in connection with Airport
P.S. case No.2024ARP037 is misplaced. The engagement of the respondent
No.3 by the petitioner in connection with an anticipatory bail matter arising out
of Airport P.S. case No.2024ARP022 and its termination on 16.04.2024 by
disposal of the said anticipatory bail application by a Coordinate Bench of this
Court cannot be said to have any plausible connection with the offence which
was committed allegedly by the present accused Rakesh Barman and other
accused persons on 30.04.2024. Not only are the victim and the parties of both
the cases unrelated but the allegations made in both the FIRs do not show any
semblance of those two matters being related or that the present Airport PS
case 2024 ARP 037 is arising out of or is in connection with the previous one.
Since the engagement of the respondent No.3 came to an end on 16.04.2024
itself, by stretching the imagination to the extreme logical extent also, it cannot
be reasonably said that his appearance in an anticipatory bail matter in Airport
P.S. case No.2024ARP022 did have a connection whether immediate or distant
with the offence which got committed allegedly by the present accused Rakesh
Barman and other accused persons on 30.04.2024 against a totally different set
of parties.
16. Had it been a situation where the engagement of the respondent
No.3 continued beyond 16.04.2024 and during the period of the incidence
which led to the institution of the Airport P.S. case No.2024 ARP 037 on
30.04.2024 for the offence of murder under Sections 302/120B of the IPC read
with Section 27 of the Arms Act, there could have been a likelihood of bias and
conflict of interest in conducting a case simultaneously on behalf of the same
accused person and appearing against him in the other case as a Special Public
Prosecutor.
17. The two cases apparently having no connection as demonstrated
above and there being no possibility of even a likelihood of bias or conflict of
interest, this Court is of the considered opinion that the impugned order if
upheld would not lead to any abuse of the process of Court or miscarriage of
justice. The learned Chief Judicial Magistrate, West Tripura, Agartala has duly
applied his mind to the facts relevant for determination of the objection raised
by the accused Rakesh Barman and rightly come to a conclusion that both the
offences are totally unrelated and there is no possibility of any link in the
engagement of the respondent No.3 in the previous case with his engagement
as a Special Public Prosecutor in the instant Airport P.S. case No.2024 ARP
037.
18. Learned senior counsel for the petitioner has relied upon a number
of decisions and also the relevant extracts of Halsbury's Laws of England in
order to support his submission that the element of bias or likelihood of
apprehension in a case like this also arises even if the engagement of the
respondent No.3 was in a matter unrelated to the present one. In the case of
Public Prosecutor, Andhra Pradesh Vs. Kothakapu Etreddy Venkata Reddi
rendered by the Andhra Pradesh High Court, Sri Rama Rao, the Public
Prosecutor, had advised in the capacity of the Public Prosecutor in the same
case against the accused persons in which he later on appeared for some of the
accused persons. In the facts of that case, the learned Court directed Sri Rama
Rao not to appear for any of the accused in that case as well as to withdraw his
appearance from that case. The facts of the said case is clearly distinguishable
from the present case.
19. In Tajendra Chandra Dhar & Ors. Vs. Tajendra Lal Ghosh &
Ors,. decided by the learned Division Bench of Rangoon High Court, one Mr.
Guha, learned advocate was found to be interested on behalf of the other side in
matters which were collateral to the suit in question and where he had put in a
counter affidavit. In those circumstances, learned District Judge held that it
would be improper to hear Mr. Guha as an advocate in that particular suit on
behalf of one of the parties. The decision of the learned District Judge was
upheld by the High Court. The said decision revolves around the facts of the
case as Mr. Guha, learned advocate was found to be appearing in a collateral
matter with the other side and had filed counter affidavit. The decision
therefore does not apply on facts to the present case.
20. Learned senior counsel has relied upon another decision rendered
by the Privy Council in Mary Lilian Hira Devi Vs. Kunwar Digbijai Singh. In
the said case, both the Vakils had changed sides in a dispute relating to the
property of the lady's husband. The High Court noted that since both the
Vakils might be called upon as material witnesses they should refrain from
acting in the case. The other advocate retired from the case but the appellant
lady's advocate continued (earlier representing the respondent in the
compromise). In those facts, the Privy Council agreed with the observations
made by the High Court that it would be improper for a legal practitioner who
has acted for one party in dispute such as this, acting for the other party in
subsequent litigation between them relating to or arising out of that dispute.
The present case is not one where the respondent No.3 has been engaged to
appear in a matter relating to or arising out of the previous criminal case, i.e.
Airport PS case No. 2024 ARP 022. In the said case, the engagement of the
respondent No.3 had come to an end on disposal of the anticipatory bail
application on 16.04.2024, i.e. 15 days before the incidence of murder of a
different person leading to Airport PS case No. 2024 ARP 037 in which
respondent No.3 has been engaged. Therefore, the case of Mary Lilian Hira
Devi does not apply to the facts of the present case.
21. Similarly in the case of U Ko Ko Gyi Vs. U San Mya decided by a
Division Bench of the Rangoon High Court it was discovered that the advocate
in question was already approached by the other heir to retain him if litigation
arose in connection with the estate in question. The dispute was surrounding
the partition of the estate of the deceased where the wife of the appellant was
one of the parties. It was found that the advocate had knowledge of all the facts
pertinent to the case of this person but still he chose to appear for the opposite
party fighting against the wife of the respondent who had disclosed her case
with detailed information. The learned court though observed that there was no
direct link/proof of any confidential information having passed, but based on a
fair presumption relating to the fact that some communication did pass from
the respondent to the appellant, the court upheld the decision of the District
Judge and dismissed the application. The case of U Ko Ko Gyi therefore also
relates to engagement of a counsel in a matter relating to or arising out of the
same dispute which is not the case here.
22. In the case of David Lloyd Neil Vs. Her Majesty the Queen the
accused sought stay of criminal prosecution. The learned court held that a
lawyer may not represent one client whose interests are directly adverse to the
immediate interest of another current client. Even if the two mandates are
unrelated, unless both clients consent after receiving the full disclosure and the
lawyer reasonably believes that he or she is able to represent each client
without adversely affecting the other then only he should appear for one of
them. The principle which follows from the aforesaid decision is that if the
interest of one client could be directly adverse to the immediate interest of
another client, then the learned lawyer should avoid representing his current
client to avoid conflict in interest. No such situation arises in the facts of the
present case. As such, the said decision is also not on the point in issue.
23. In the case of State Vs Phillips decided by the Tenessee Court the
issue related to a plea raised by the accused in a murder case of denial of
effective assistance of counsel on account of the fact that his former defense
counsel was acting on behalf of the State. The court in those circumstances
held that the right of the defendant to fair and impartial trial and due process of
law and the orderly administration of justice would be affected. Therefore, the
conviction of the accused was reversed and the matter was remanded for fresh
trial while the District Attorney General was disqualified.
24. In the present case, it is not a fact that the respondent No.3 was
appearing as his defence counsel in the same case and now being engaged to
appear on behalf of the State. The common thread which flows out of these
decisions is that it is not necessary for the accused to show actual prejudice but
a likelihood of conflict of interest would in itself be enough to preclude an
advocate from appearing for the opposite party since an advocate is required to
maintain the highest traditions of the bar. The facts and circumstances of the
present case, as discussed hereinbefore, do not show that the present case, i.e.
2024 ARP 037 arose out of the previous FIR or had any connection or relation
with 2024 ARP 022 in which the respondent No.3 had appeared for the accused
Rakesh Barman in an anticipatory bail matter and that his engagement had
come to an end upon disposal of that anticipatory bail application on
16.04.2024, i.e. 15 days before the present incidence took place. The parties of
both the FIRs are unrelated. As such, it cannot be said that the accused could
have passed any confidential information to his lawyer, respondent No. 3 then,
which could preclude him to represent the state in the present FIR on the
grounds of conflict of interest or impropriety. Therefore, this Court is of the
opinion that the decisions relied upon on behalf of the petitioner do not apply
to the facts and circumstances of the present case.
25. This Court, therefore, does not find any reason to interfere in the
impugned order. The instant petition is accordingly dismissed.
Pending application(s), if any, also stands disposed of.
(APARESH KUMAR SINGH), CJ
Pulak
PULAK BANIK Digitally signed by PULAK BANIK
Date: 2025.03.04 13:11:56 +05'30'
