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Withdrawal from case on party’s request allows cherry-picking of bench of choice: Madras HC

By Saumya Srivastava      05 August, 2020 01:51 PM      0 Comments
Withdrawal from case MadrasHC

Justice B. Pugalendhi of the Madras High Court, on Monday (3rd August 2020), observed that withdrawing from a case merely on a party’s request allows parties to cherry-pick bench of their choice.

The Single Bench while hearing appeals against the acquittal of the management of certain granite firms (in connection with their accusation for illegal quarrying of granite in Madurai worth crores of rupees) noted that if the Judge entertains the plea of the respondents-accused, the act, in the mind of the Court is a breach of the solemn responsibility which the Constitution has vested upon the Court, apart from deviating the roster allotted by the Chief Justice of Madras HC as well as the Administrative order of the Administrative Judge of the Madurai Bench of Madras HC.

The Bench turned down the request for recusal, relying heavily on the recent instances where Supreme Court judges have come down heavily on similar attempts by parties before them. The then Chief Justice Ranjan Gogoi in a PIL regarding the plight of inmates in Assam's detention centers (2019), in the Judge Loya case, when the petitioners sought the recusal of Justices A.M. Khanwilkar and Justice D.Y. Chandrachud from the Bench, stating that they both hailed from the Bombay High Court, and, in the Land Acquisition case, where Justice Arun Mishra was asked to recuse for having dealt with the matter earlier (2019).

The Counsel appearing for M/s PRP Exports and PRP Granites informed the Bench of instructions from his clients that Justice Pugalendhi has already appeared in several cases as against his client in the capacity as Special Government Pleader and as Additional Advocate General on various dates and also appeared as Counsel for Mr. Anshul Mishra (one of the petitioner-complainants before the Court), the then Madurai District Collector, during the period 28.05.2012 to 07.07.2013.

The cases, where the Single Judge had appeared on behalf of Police and Madurai District Authority were listed and criminal and writ cases were included too.

The Bench acknowledged that this Court, as a Special Government Pleader and as an Additional Advocate General, had appeared before the Hon'ble Supreme Court as well as the Court in certain writ petitions concerned with Granite related issues while also adding that he had neither appeared in these petitions nor in any criminal appeals pending before the Court in connection with these respondents / accused.

The Bench further said that the Court doesn’t understand the merit in this plea. An Additional Advocate General or a Special Government Pleader is an Advocate appointed by the Government to conduct such a case, as is entrusted to him, for and on behalf of the State in the Courts. On the basis of merit and other things the Government, hires some Advocates, as Law Officers to represent them before various Courts of law, and personal motive cannot be attributed to such Advocates.

The Judge observed that as a Special Government Pleader and as an Additional Advocate General, him representing the State simply means that this Court had represented the Government against the opposite party, in the official capacity.

The Bench maintained, “Article 219 of the Constitution of India says, every person appointed to be a Judge of a High Court shall, before he enters upon his office, make and subscribe before the Governor of the State, or some person appointed in that behalf by him, an oath or affirmation, according to the form set out for the purpose in the Third Schedule. Accordingly, at the time of swearing-in as Judges of this Chartered Institution, we have solemnly affirmed that we will bear true faith and allegiance to the Constitution of India as by law established, that we will uphold the sovereignty and integrity of India, that we will duly and faithfully and to the best of our ability, knowledge, and judgment, perform the duties of our office without fear or favor, affection or ill-will and that we will uphold the Constitution and the laws.”

Repeating that no counsel ever steps into the shoes of the client, the government, in this case, the Bench stated that the fact that this Court has represented several Government Bodies, as Government Counsel, cannot bar the Court from taking up any case filed by the Government or against the Government.

Justice Pugalendhi expressing his regret said that the Court has not even started hearing the merits of the matter, but, has simply adjourned the matter to Monday (3rd August) to fix a date for the hearing. Before the arguments even commence such a plea has been raised not once but twice.

Justice Pugalendhi on Thursday (30th July) observed that an order passed by it in December 2019 on a Criminal Original Petition in a connected matter, which required the matter to be placed before another bench. Since there is no reason mentioned in the order it is not easy to recollect the circumstances under which the Court passed the order to post the case before some other Court. 

The bench added that the Court has passed such an order on an earlier occasion in other proceedings, cannot be a ground to make out such a plea in all the cases and as observed by the Hon'ble Supreme Court, it would be a wanton attack and it would be an abdication of duty.

The Single Bench said that the parties approaching the Courts file petitions on the basis of legal principles and the Courts decide the issue on the principles of law and the Court cannot shy away from its duty on the whims of certain parties.

“Counsel has a duty not only towards his client but also towards the court.”

The Single Judge expressed displeasure at the conduct of the counsel for the respondents-accused in repeating his plea for a direction to number his application under Section 309 CrPC (for postponement/adjournment of hearing), that was filed just a day before. The Bench noted that when the contents of the application filed in the said petition were asked for, the learned Counsel reiterated the same stand instead of referring the same. The Bench continued to hold that in the absence of any compelling reasonings being put forth in the open Court, the Court is not inclined to direct the Registry to number any petition and it is left open to the Registry to number the petition if it is in accordance with the law.

The Judge wrote that a plea for recusal was raised by the same party but through a different Counsel. The Court cited that the earlier Counsel had raised the plea for recusal which was rejected by the Court and the matter was posted on Thursday (30th July) for fixing a date for the hearing, and now, a different set of Counsel has entered appearance and are making the very same plea.

Justice Pugalendhi mentioned that such conduct warrants some observations, but the Court refrains from doing so.

The bench, as a parting note, quoted certain choice observations of the Full Bench of the Madras High Court in another case, “It is not the duty of a legal practitioner blindly to follow every instruction of his client. He has not only got a duty towards his client but he has got a duty towards the Court. To attempt to obtain adjournments by misrepresentations and to put forward a purpose which the legal practitioner knows will never be carried out is to attempt to gain, and to gain an advantage, by a trick and a very dishonest one too.”



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