Calcutta High Court (Appellete Side)
In Re: Court On Its Own Motion vs Union Of India on 17 April, 2023
17.04.2023
Sl. No.33
akd
[Adjourned]
C. R. R. 1017 of 2023
in
C. R. M. (DB) 284 of 2023
In Re: Court on its own Motion
... ... Petitioner
Mr. Soumyajit Das Mahapatra
Ms. Rabia Khatoon
Ms. Madhurai Sinha
Ms. Soma Mal
... ... for the petitioner
Mr. Somnath Adhikary
... ... for the de-facto complainant
Mr. Neguive Ahmed .. ld. Addl. Public Prosecutor
Ms. Trina Mitra
... ... for the State
Mr. Dipak Sengupta .. Sr. Advocate
Mr. Milon Mukherjee .. Sr. Advocate
Mr. Sabir Ahmed
Mr. Arnab Chatterjee
Mr. Jishan Iqubal Hossain
Mr. Anisur Rahaman
Ms. Dhanasree Biswas
Ms. Poulami Bose
... ... for the contemnors &
representatives of Berhampore
Bar Association
Lawyers are officers of the court. It is with their able advise
and guidance that courts are able to dispense justice to society. But
when the officers of the court turn against the rule of law, a grave crisis
arises in the administration of justice.
Factual matrix giving rise to the proceeding is as follows:-
An accused viz. Muklesur Rahaman @ Milon prayed for bail
before this court. This court was informed that witness action in the trial
court was stalled due to a resolution taken by the District Bar not to
participate in the judicial proceeding.
2
The aforesaid situation needed immediate intervention from
the end of the High Court.
Under such circumstances, this Court by order dated
31.01.2023directed as follows:-
"Accordingly, we direct the trial court, Public Prosecutor and the defence lawyer in the present case to examine witnesses who are present before the court. No adjournment shall be given by the trial court on this ground."
Report was also called for from the trial Judge.
On 01.02.2023 and 02.02.2023 four witnesses appeared before the trial court for giving evidence. Inspite of our direction, the lawyers, namely, (1) Nayeem Faruk, (2) Md. Atiujjaman, (3) Tunku Abdur Rahaman, (4) Inamul Kabir, (5) Sanowar Jahan, (6) Harun Al Rasid and (7) Anwar Hossain representing the accused did not participate in the proceeding and declined to cross-examine the witnesses. The only plea raised by them was the Bar resolution. Under such circumstances, trial Judge requested one Mr. Alokesh Pal, lawyer empanelled with DLSA to cross-examine but he also expressed inability to do so.
Relying on the report of the trial Judge, this Court issued notice upon the President and other office bearers of the Bar Association as well as the lawyers representing the accused persons and the said Alokesh Pal to show cause why contempt proceedings shall not be drawn up against them.
Pursuant to the notice, the lawyers have appeared before this court and filed affidavits.
Gist of the defence of the President and the office bearers of the Bar is that a member of the local Bar had been physically assaulted. 3 One of the assailants was a relation of the local MLA. Though FIR was registered, no steps were taken by the local police. This agitated the members of the Bar and accordingly a resolution was taken on 30.01.2023 to cease work till 31.01.2023 as a mark of protest against assault on a member of the legal profession. Thereafter, the officer bearers of the Bar Association had tried to contact the Superintendent of Police, Murshidabad to ensure safety and security of lawyers. They received no positive response. Accordingly, a further resolution was taken on 31.01.2023 to continue the cease work which ultimately was recalled on 14.02.2023.
Defence taken by the learned lawyers viz. Nayeem Faruk, Md. Atiujjaman @ Md. Atiujiaman, Tunku Abdur Rahman, Inamul Kabir, Sanowar Jahan, Harun Al Rashid and Anowar Hossain representing the accused for not complying with the order of this court is that they were unaware of the said order. Alokesh Pal, learned lawyer empanelled with the District Legal Services Authority who was deputed by the trial court stated that at 4:30 P.M. on 01.02.2023 he received a phone call from the office of the District Legal Services Authority and was directed to participate in the judicial proceeding. Due to non-availability of relevant papers and lack of preparation, he was unable to discharge his duty.
We have given anxious consideration to the aforesaid stance taken by the learned lawyers. We have also heard the submissions of Mr. Dipak Sengupta and Mr. Milon Mukherjee, learned senior Advocates representing them. While not endorsing the steps taken by the local Bar, they submit the action of the local Bar was prompted by unavoidable circumstances. With regard to the learned lawyers representing the accused it is submitted they are young members of the 4 Bar and were unaware of the consequences of their action. All of them tendered unqualified apology for their conduct.
Hon'ble Supreme Court has repeatedly held1 a resolution by lawyers not to participate in judicial proceedings is unconstitutional. Recognising the seminal role of a lawyer in upholding fair trial rights, the Constitution engrafted the right to be defended by a lawyer of one's own choice as a fundamental right of every accused. A decision to cease work strikes at the very root of this fundamental right and denies access to justice to a litigant in judicial proceeding. Judged from this perspective no justification howsoever high can give validation to withdrawal of legal representation in criminal cases. In fact, such conduct not only infracts rule of law but also interferes with the administration of justice.
In Harish Uppal (supra) the Apex Court held:-
"32. ...A dispute between a lawyer/lawyers and police or other authorities can never be a reason for going on even a token strike. It can never justify giving a call for boycott. In such cases an adequate legal remedy is available and it must be resorted to."
Only in cases where independence of judiciary is at stake, stakeholders in the justice delivery system may as a token of protest can withdraw from judicial work for a day. The factual matrix does not make out such a case for the Berhampore Bar Association, to resort to the resolution for cessation of work even for a day. In doing so, they acted contrary to the mandate of the Supreme Court and interfered with the administration of justice. We record our disapproval to the conduct of the President and other office bearers of the Bar Association. 1 Harish Uppal (Ex-Capt.) vs Union of India, (2003) 2 SCC 45; Hussain vs. Union of India, (2017) 5 SCC 702; Krishnakanat Tamrakar vs. State of M.P., (2018) 17 SCC 27; District Bar Association, Dehradun vs. Ishwar Shandilya, (2020) 17 SCC 672 5 However, the President and the office bearers have expressed their contriteness and tendered unqualified apology. We are also informed Bar has withdrawn the cease work since 14.02.2023.
In order to test the bona fides of the unqualified apology tendered before us, we direct the President and office bearers to file separate sworn undertakings before this Court by 21.04.2023 that during their tenure they shall not take a resolution for withdrawal from judicial work. In the event they file the aforesaid undertaking, the proceeding against them shall remain suspended.
So far as the learned lawyers representing the accused persons are concerned, we note that their conduct is not only in violation of the mandate of the Apex Court in various cases as aforesaid, but the same is also in breach of the direction in order dated 31.01.2023.
A faint plea has been raised by the lawyers that they were not aware of the said order. This appears to be extremely flimsy and not even worthy of credence. In fact, one of the accused, namely, Muklesur Rahaman @ Milon was represented by his learned lawyer and the order was passed in his presence. The order was duly communicated by the Department to the trial court as well as the lawyers representing the accused persons. Notwithstanding such communication the lawyers chose not to appear before the trial court on the excuse of the prevailing Bar resolution as would appear from the trial Judge's report.
Their stance is in patent violation of our order and shows scant respect towards the judicial process of this Court. Howsoever inexperienced a lawyer may be, it is beyond comprehension that he would not have due respect and regard towards judicial orders. Since the lawyers chose to refrain from attending judicial proceeding on the 6 plea of an unconstitutional cessation of work, four witnesses viz. Atena Bibi, Adora Bibi, Hafijul Mondal and Raju Chowdhury who came to court to depose could not be examined in full. One can appreciate the inconvenience of Alokesh Pal who under such trying circumstances was pressed into service by the trial Judge to cross-examine witnesses but the conduct of the lawyers viz. Nayeem Faruk, Md. Atiujjaman @ Md. Atiujiaman, Tunku Abdur Rahman, Inamul Kabir, Sanowar Jahan, Harun Al Rashid and Anowar Hossain is unpardonable. There cannot be second opinion that they committed contumacious violation of our order. Violation was also wilful and deliberate. There could have been no confusion in their minds that they were bound by a judicial order to cross-examine the witnesses. However, they chose to ignore the judicial fiat presumably under the expectation of patronage from superiors or indulgence of the court. None of these expectations contribute to a robust justice delivery system.
Lawyers ought to bear in mind that they are facilitators of justice and are not entitled by abuse of their professional privileges to hold the justice delivery system at ransom and deny access of justice to litigants.
Hence, we hold the lawyers viz. Nayeem Faruk, Md.
Atiujjaman @ Md. Atiujiaman, Tunku Abdur Rahman, Inamul Kabir, Sanowar Jahan, Harun Al Rashid and Anowar Hossain guilty of committing wilful, deliberate and contumacious violation of the order dated 31.01.2023.
Mr. Milon Mukherjee strenuously pleads that mercy be shown to the young lawyers. Though we condemn their action, we are of the view in the light of their inexperience and as they have no prior 7 antecedent, imposition of substantive sentence may not be justified. However, their conduct has caused great agony and inconvenience to witnesses who were compelled to withdraw from their gainful activities and undertake a futile exercise of coming to court. Due to the contumacious act of the contemnors these witnesses could not be cross-examined. They need to be compensated for their inconvenience.
Accordingly, we direct that the contemnors shall pay a sum of Rs.20,000/- (Rupees Twenty thousand only) each as compensation before the trial court who shall handover the said amount in equal proportion to the four witnesses viz. Atena Bibi, Adora Bibi, Hafijul Mondal and Raju Chowdhury. The compensation shall be paid within seven days from date and the witnesses shall be compensated within a fortnight thereof.
We are also mindful that the irresponsible act of the lawyers should not affect the fate of the litigants. In order to balance the fair trial rights of an accused on one hand and the inconvenience caused to witnesses on the other hand, we have directed the contemnors to compensate them as aforesaid. In the event the compensation is paid, the trial Judge is at liberty to recall the said witnesses on a particular day and the said witnesses shall be cross-examined on that day itself and if it is not possible due to circumstances beyond control, within 2-3 days thereof without delay. No further adjournment shall be granted to defense on any score.
Department is directed to communicate the order to the trial Judge for intimation and due compliance.
Trial Judge shall submit report on the adjourned date. 8 Let the matter appear for further submission of report on 01.05.2023.
(Ajay Kumar Gupta, J.) (Joymalya Bagchi, J.)