Dismissed

Subray Pandalik Pednekar and Ors. v. the State of Maharashtra and Ors.

Bombay HC11 Jun 2013WP/1505/2012

Case brief

AI extract

What is this about?

This court dismissed a Writ Petition challenging a Magistrate's order revoking permission granted to a Constituted Attorney to prosecute a complaint case. The court held that the Magistrate had sufficient basis to withdraw the permission due to the attorney's inappropriate conduct.

What did the court decide?

Petition dismissed; liberty granted to file separate proceedings regarding other orders.

Subray Pandalik Pednekar and Ors. Vs the State of… — Service and Employment | Bombay HC (2013)

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(46)WP-1505-12

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Tilak

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO.1505 OF 2012

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SUBRAY PANDALIK PEDNEKAR AND ORS )...PETITIONERS V/s. THE STATE OF MAHARASHTRA & ORS )...RESPONDENTS

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Ms.Sandhya S. Pednekar, Constituted Attorney for the Petitioners. Mrs.G.P. Mulekar, APP for the State.

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Mr.A.B.Shinde i/b. Mr.Sagar Bhandwalkar, Advocate for Respondent Nos.1 to 6, 8 and 9.

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Mr.Ajit Kejale, Advocate for Respondent No.7.

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CORAM: ABHAY M. THIPSAY, J.

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DATE : 11^th JUNE, 2013.

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P.C. :

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1 Heard Ms.Sandhya S. Pednekar, the Constituted Attorney (C.A.) of the petitioners.

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2 By this petition, the petitioners who are the complainants in Complaint Case No.29 of 2009, pending before the Judicial Magistrate First Class (JMFC), Khadki, Pune, are challenging three different orders passed in the said case. The first one is the order

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below Exhibit-211, passed on 17 March 2012. The second order is one dated 4 December 2010, passed on Exhibit-100, by the Magistrate (which was challenged before the Sessions Court by filing a revision application, but the revision application was dismissed). The third is an order passed below Exhibit-16, on 5 September 2009, by the Magistrate.

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3 The three orders which are totally unconnected with one other, have been clubbed in the present petition. The emphasis of the C.A. of the petitioners was primarily on the order dated 17.3.2010 passed below Exhibit 211. From the order passed by this court on 27.11.2012 (Coram : K.U.Chandiwal, J.), when the petition was partly heard also, it is clear that the petition was stated to be one challenging the order below Exhibit 211. Under these circumstances, the petitioners are advised to file separate proceedings with respect to the other two orders.

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4 The petitioners are conducting the prosecution of the said complaint case pending before the learned Magistrate, through their daughter and Constituted Attorney – Ms.Sandhya Pednekar, who appears for the petitioners in this petition also. Ms.Sandhya Pednekar was conducting the prosecution as per the permission granted to her by the learned Magistrate. When the trial was progressing, an application (Exhibit 211) was made by the respondent no.1 herein, who is the accused no.1 in the said case, claiming that it was not permissible for the C.A. of the complainants to conduct the prosecution like an advocate, and that, the C.A. was not able to conduct the prosecution

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properly and was wasting the time of the court. The learned Magistrate called for the say of the C.A. of the complainants, and after hearing the accused as well as the C.A., revoked the permission granted to the C.A. to conduct the prosecution. It is this order, passed below Exhibit 211, that is under challenge in the present petition. The learned Magistrate observed in the said order that the complainants shall be at liberty to appoint an advocate of their choice or to have one appointed through District Legal Aid Committee, to conduct the further trial.

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5 A perusal of the order passed by the Magistrate indicates that it was primarily because of the conduct of the C.A. that the Magistrate revoked the permission granted to her earlier. The Magistrate was of the view that her conduct had become reprehensible, and therefore, it was proper to withdraw the permission. The learned Magistrate relied upon the observations made by the Supreme Court of India in the case of Harishankar Rastogi vs. Girdhari Sharma, AIR 1978 SC 1019 to hold that it was permissible for the court to revoke the permission granted under the circumstances.

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6 I have heard Miss Sandhya Pednekar – C.A. of the complainants, in support of the petition. I have heard the APP and the learned counsel for the other respondents, only briefly. The main contention advanced by the C.A. is that having granted permission to the C.A. to conduct the prosecution, it was not open for the Magistrate to revoke such a permission. According to her, the Magistrate had no powers to review his own orders, and that, withdrawing the permission

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amounts to such a review. According to her, this legal position was clear from the decision of the Supreme court in Adalat Prasad vs. Rooplal Jindal & Ors. AIR 2004 SC 4674 . Besides this, no other point in that regard was urged by the C.A. It is not possible to accept this contention. No person, except those, who are allowed to practice law as a profession, can appear before a court of law and conduct proceedings as a matter of right. A private person, who is not an advocate, cannot conduct any proceedings in a court of law, without the permission of the court. Undoubtedly, permission was granted to the C.A. to conduct the prosecution, but it cannot be seriously contended that such permission, once granted, could not be revoked or withdrawn, which as aforesaid, is the only argument advanced by the C.A. Infact, in the case of Harishankar Rastogi (supra) itself, the Supreme court of India has made it clear that such a permission could be withdrawn at any time, if such person proves himself reprehensible (paragraph 4 of the reported judgment).

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7 Before proceeding further, it may be observed that the C.A. argued the matter mainly on the basis of her right to appear as a C.A. of the petitioners, and not on the basis that the petitioners have a right to have the prosecution conducted through a person of their choice, who is not an advocate. There is a subtle but definite distinction between these, as in the first mentioned case, the question would be of the rights of a person, who is not an advocate, to appear, act and plead for another; while in the second, it would be the right of the litigants to engage a non-advocate to conduct the litigation, that would be in question. Anyway, considering that the C.A. is the daughter of the

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petitioners, I have viewed the matter from the angle that not only the petitioners, but the C.A. is also personally aggrieved by the order passed by the Magistrate. I have considered that the order affects the petitioners, as also the C.A. herself.

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8 The C.A. is the daughter of the petitioners, and therefore, ought to be treated as if she is a party in person. I have explained to her that her contention based on the decision in Adalat Prasad's case cannot be accepted, and that for ascertaining the correctness or otherwise of the order withdrawing / revoking the permission, the reasons given by the Magistrate would be required to be taken into consideration. She was asked to read the order below Exhibit 211, so as to let the court know the reasons for which the Magistrate withdrew the permission. The C.A. was, however, not ready to read the order passed by the Magistrate, and submitted that the permission was withdrawn because she had exposed certain wrongs committed by the advocates for the accused persons and also by the court. According to her, she was conducting the prosecution successfully, which was detrimental to the interest of the accused persons, and that, therefore, the permission had been withdrawn.

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9 I have gone through the impugned order carefully. The learned Magistrate referred to the provisions of the Advocates Act and concluded that as per Section 29, Advocates is the only recognized class of persons entitled to practice law. He also referred to Section 32 of the Act which empowers the court to permit a person, not enrolled as an advocate, to appear before it, in a particular case, and concluded that

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though a person can be allowed to appear before the court, under the provisions of Section 32, such person cannot be allowed to conduct the prosecution like an advocate. In my opinion, this discussion was actually not needed, because in reality, the permission granted to the C.A. has been withdrawn because of her conduct and behaviour before the court, while conducting the prosecution. It is, therefore, not necessary to express any opinion on the correctness of the view of the Magistrate, as to the rights of a person, permitted to appear before it by the court under Section 32 of the Advocates Act.

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10 The learned Magistrate observed in his order that the C.A. had, in the past, made allegations against his predecessor. The Magistrate also observed that she had been filing applications which were not tenable in law, and had made several allegations against the advocate for the accused, and also against the Magistrate. The Magistrate observed that she had accused the advocate for the accused and the Magistrate of prolonging the matter by playing fraud and dirty tactics. The Magistrate also observed that she has no legal knowledge and that even after giving warnings from time to time, she asked leading questions in the examination in chief. The Magistrate also observed that she had made scandalous allegations and contemptuous statements in her notes filed before the court vide Exhibit 176. It is not necessary to elaborately mention all the observations made by the learned Magistrate, and it is sufficient to mention that paragraphs 21, 24, 25 and 26 of the impugned order record the conduct of the C.A., because of which, it was necessary, according to the Magistrate, that the permission granted to her, should be revoked. The learned

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Magistrate in earlier part of his order noted the observations made by the Supreme court of India in Harishankar Rastogi (supra), and emphasized in paragraphs 27, 28 and 29 of the impugned order, as to why the permission granted to the C.A. was being withdrawn.

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11 Since the C.A. is closely related to the petitioners, she ought to be treated like a party in person; and therefore, in order to see, as far as possible, that she is not prevented from conducting the prosecution, I suggested to her that if she was ready to undertake that she would behave and conduct herself properly during the trial, giving of a further opportunity to her could be considered. The observations made by the Magistrate in the impugned order, which she was not ready to read, were read over to her, and it was suggested to her that some sort of assurance to this court about her conduct during the trial would be necessary, in order to consider giving an opportunity to her to conduct the prosecution. However, the C.A. flatly refused to accept any such suggestion by saying that she had not done anything wrong and the observations made by the Magistrate are false.

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12 The question is whether the C.A. of the petitioners is fit to conduct the prosecution in a satisfactory manner. Apart from the observations made by the learned Magistrate, which the C.A. has not been able to demonstrate as false, except by making claim that they are false, even before this court, her conduct has not been proper. In the first place, she was unable to argue properly. She was unable to render any assistance to the court. She would make reference to certain documents and when questioned as to the page number of the petition

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on which such document would be found, she would not be able to answer. She would not be able to say whether such document is annexed to the petition or not. It appears that all the documents that ought to be annexed to the petition have not been annexed. It was, however, impossible to discuss any such aspect or advise the C.A. in any manner. Secondly, she does not address the court in a proper manner. She freely used the language and terminology which is generally not used in court. It is apparent that she lacks sobriety necessary to conduct a proceeding before a court of law. She was not willing to answer the question put to her by this court and often made irrelevant statements during the present proceedings. As she was not able to argue properly and make her point, with a view to gathering the facts, certain questions were put to her, but putting of such questions was apparently considered by her as an act against her. Whenever any question on facts would be put to her, she would react in an offending way, perhaps in the belief that the court is trying to damage her case. She was asked as to why the petitioners did not wish to engage any advocate, and that, even Free Legal Aid could be provided to them, she offensively replied that it is her fundamental right to argue before the court.

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13 Keeping in mind that the C.A. might be aggrieved by the perceived injustice done to the petitioners, which might be resulting in her such behaviour, I have shown much latitude to her. Being conscious of the fact that the revocation of the permission might operate rather harshly against the petitioners, I have attempted to find out some practical and workable solution to the problem. However, it

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was quite impossible to have any dialogue or discussion with the C.A., who was primarily harping only on the point that permission once granted to her could not have been legally withdrawn by the Magistrate, and secondly, that, she had not done anything improper, but that the Magistrate is deliberately favouring the accused persons to see that the petitioners' case is not conducted properly.

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14 After carefully considering the matter from all the angles, I am unable to conclude that the permission granted to the C.A. has been withdrawn by the learned Magistrate without sufficient basis or that without proper reasons.

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15 Under these circumstances, I am not inclined to interfere with the order passed below Exhibit-211 by the learned Magistrate by exercising the extra-ordinary jurisdiction of this Court.

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16 As aforesaid, with respect to the other prayers, the petitioners shall be at liberty to file separate and appropriate proceedings.

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17 Petition is dismissed with the aforesaid observations.

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18 On her prayer, it is directed that a copy of the Writ Petition be furnished free of charge to the C.A. of the petitioners.

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( ABHAY M.THIPSAY,J )

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Subray Pandalik Pednekar and Ors. v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

Subray Pandalik Pednekar and Ors. v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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