Advocates Can't Be Guarantors For Petitioner's Whereabouts: Gauhati HC [Read Order]

Guwahati: The Gauhati High Court has set aside the fine of ₹50,000 imposed on each of two advocates and the referral of the matter to the Bar Council, in a writ petition dismissed on suspicion that the petitioner was a fictitious person. The court held that the advocates ought not to have been held responsible for the petitioner's non-appearance, but cautioned lawyers to be more careful before accepting a Vakalatnama on a friend's request.

A Division Bench of Chief Justice Ashutosh Kumar and Justice Arun Dev Choudhury was hearing a writ appeal by advocates Harbinder Singh Kalsi and Rounak Sultana Sadial. They challenged the Single Judge's judgment dated 23.03.2023 in WP(C) No. 5139/2016 and the order dated 30.05.2023 in Review Petition No. 63/2023.

The Single Judge had dismissed the writ petition, suspecting "ghost filing" because the petitioner could be neither produced before the court nor found by the police. The Single Judge had also imposed the fine and directed the Bar Council of Assam, Nagaland, Mizoram and Arunachal Pradesh to initiate disciplinary proceedings against the appellants.

The appellants said that another advocate, who was reluctant to sign the Vakalatnama himself because of a clash of interest, had asked them to appear for Ms. Beolin Kharbhih. She was the daughter of a former Deputy Superintendent of Police and sought a court-monitored probe into her father's death. They said they accepted in good faith and were satisfied before signing that the averments were correct and the petitioner existed. According to them, she was physically present in the High Court campus and was identified before the Oath Commissioner by the registered Clerk of the fellow advocate. The petition remained pending for about six years.

During the pendency, respondent Nos. 6, 7 and 8, who were suspected of causing the disappearance and death of her father, alleged that she was a fictitious entity. A CID enquiry reported that she could not be located at her given address, and the Single Judge accepted this report without demur, holding the petition was filed by a fictitious person.

The appellants later obtained a copy of Caveat No. 84/2016, filed before the Court of Munsiff No. 1, Kamrup (Metro) by respondent No. 7 against the writ petitioner in a property dispute. They sought review on this ground, but it was dismissed on the footing that her existence was only an inference that did not warrant a re-look at the judgment.

Before the Division Bench, the appellants argued that the CID report only showed she could not be found at her address, not that she did not exist. They noted that the Advocate's Clerk had told the CID he saw and identified her in 2016. They said the Single Judge ignored this and the respondents' misleading statement that she was fictitious, when respondent No. 7 had himself filed a caveat against her. They also argued that advocates cannot be made guarantors for a petitioner's physical whereabouts after filing and arguing a petition, and that an advocate is especially vulnerable when the petition is filed through standard institutional channels, on the identification of a registered Clerk.

The Bench agreed that the conclusions of the Single Judge were correct insofar as the petitioner could not be found, and held that the writ petition was rightly dismissed. However, it held that costs on the advocates as professionals were not justified on the facts. It added that a referral to the Bar Council would amount to very harsh treatment for advocates who have practised before the court and spent good time at the Bar.

Taking a holistic view, the court modified the judgment dated 23.03.2023, upholding the dismissal of the writ petition but setting aside the fine and the Bar Council referral. It also set aside the review order dated 30.05.2023 and allowed the appeal with that modification.

While parting, the Bench cautioned advocates to be more careful in accepting a Vakalatnama on a friend's request. It said they should probe the correctness of the averments and satisfy themselves that the petitioner is not masquerading as a litigant.

Appearances:

For the Appellants: Mr. H. Singh Kalsi, Petitioner-in-person.

For the Respondents: Mr. A. Mena, Advocate, for respondent Nos. 6, 7 and 8.

Case Title: Harbinder Singh Kalsi & Anr. vs. The State of Assam & 25 Ors., WA/51/2026

[Read Order]