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Mansoor Madaru Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Case NumberCriminal Misc. Case No. 227 of 1962
Judge
Reported inAIR1963All477; 1963CriLJ363
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 344 and 526
AppellantMansoor Madaru
RespondentThe State
Advocates:J.S. Trivedi, Adv.
Excerpt:
.....because he insulted the lawyer in open court. the same day he filed an affidavit of sri hari har bakhsh singh, advocate, hardoi, in which sri hari har bakhsh singh has reiterated the avernments contained in the affidavit of mansoor, that his request for adjournment of the appeal to enable him to prepare it was orally refused by the learned judge and that on the presentation of the application for transfer the learned judge got very infuriated and used insulting language against sri hari har bakhsh singh saying that he was a peculiar fellow and has lost his equilibriumof brain and that persons like him should not be allowed tocontinue in practice. on 15-11-1961, in connection with a (criminal revision filed by sri hari har bakhsh singh on behalf of one sri lala har sahai lal against two..........august, 1962, in which it was stated that the senior lawyer whom he had engaged was sri hari har bakhsh singh. the same day he filed an affidavit of sri hari har bakhsh singh, advocate, hardoi, in which sri hari har bakhsh singh has reiterated the avernments contained in the affidavit of mansoor, that his request for adjournment of the appeal to enable him to prepare it was orally refused by the learned judge and that on the presentation of the application for transfer the learned judge got very infuriated and used insulting language against sri hari har bakhsh singh saying that 'he was a peculiar fellow and has lost his equilibriumof brain and that persons like him should not be allowed tocontinue in practice.' 7. upon the filing of these affidavits, i ordered that their copies and a.....
Judgment:
ORDER

R.A. Misra, J.

1. Through this application Mansoor applicant has prayed that a criminal appeal in which he is one of the two appellants be transferred from the file of Sri Hira Lal Capoor, Sessions Judge, Hardoi, to the Court of one of the two Additional Sessions Judges posted at Hardoi or to any other District and Sessions Judge competent to hear it. The application is supported by the applicant's affidavit.

2. The relevant facts as disclosed in the applicant's affidavit are as below.

The applicant was sentenced to two years' rigorous imprisonment under Section 368, I. P. Code and the co-accused Zafar Ahmad, who was found guilty under Section 376, I. P. Code, was sentenced to three years' rigorous imprisonment by the learned Assistant Sessions Judge, Hardoi.

3. They both filed a joint appeal which was fixed for hearing on 25-7-1962 before Sri Hira Lal Capoor, Sessions Judge, Hardoi. Just a day before the hearing of the appeal i.e. on 24-7-1962, the applicant engaged a senior lawyer to argue his appeal, because, according to him, the lawyer who had filed the appeal was a junior one. The applicant on account of his slender means could not furnish necessary papers to his lawyers for arguing the appeal. He did not even have a copy of the Judgment. His senior lawyer inspected the record, but there was not enough time to obtain copies of the documents filed in the case.

4. On 25-7-1962 an application was presented on be-half of the applicant praying for the adjournment of the appeal for a week to enable his senior lawyer to prepare and argue it, but the learned Judge orally refused the prayer. A second application was then made before the learned Judge with a request that the applicant's appeal be transferred to another Court. Upon this the learned Judge got infuriated and used discourteous and insulting language to the applicant's senior lawyer by saying,

'that he was a peculiar fellow who has lost equilibrium of his brain and persons like him should not be allowed to continue in practice'.

5. The transfer of the appeal from Sri Hira Lal Capoor's Court is sought on the ground that the applicant has apprehension from the Court as he refused reasonable time to the applicant's senior lawyer to prepare and argue the appeal, and because he insulted the lawyer in open Court.

6. The applicant's affidavit did not disclose the name of his senior lawyer with whom the above mentioned incidents are said to have happened. This omission appeared to me to be deliberate and of doubtful significance. Hence when the application was presented before me, I ordered that if the applicant desired any action to be taken on his application, he should file a supplementary affidavit disclosing the name of his senior lawyer and also to support his allegations by filing the affidavit of the lawyer concerned. Thereupon the applicant filed his supplementary affidavit dated 7th August, 1962, in which it was stated that the senior lawyer whom he had engaged was Sri Hari Har Bakhsh Singh. The same day he filed an affidavit of Sri Hari Har Bakhsh Singh, Advocate, Hardoi, in which Sri Hari Har Bakhsh Singh has reiterated the avernments contained in the affidavit of Mansoor, that his request for adjournment of the appeal to enable him to prepare it was orally refused By the learned Judge and that on the presentation of the application for transfer the learned Judge got very infuriated and used insulting language against Sri Hari Har Bakhsh Singh saying that

'he was a peculiar fellow and has lost his equilibriumof brain and that persons like him should not be allowed tocontinue in practice.'

7. Upon the filing of these affidavits, I ordered that their copies and a copy of the transfer application be sent to the learned Sessions Judge for his explanation, particularly regarding the allegations that on the presentation of the transfer application he got infuriated and insulted the applicant's senior lawyer using unbecoming language against him.

8. The learned Sessions Judge has submitted his explanation which is on the record. He has stated that the allegation that he got infuriated when the transfer application was filed before him and used insulting language attributed to him against Sri Hari Har Bakhsh Singh is false. He has further stated that he is not keen to hear the appeal and he would not have the slightest objection if the appeal was transferred to some other Court.

9. Giving details of the happenings of 25th July, 1962 fn his Court, which have given rise to this transfer application, the learned Judge has stated that on that day at 11.30 A.M. when he sat in Court to begin the day's work, Sri Hari Har Bakhsh Singh moved an application before him asking for the adjournment of the appeal, but he refused the prayer and passed the following written order on the adjournment application :

'If this appeal goes out of the list today, the work left will not be sufficient to keep me engaged for the whole day. Hence it cannot be adjourned. Time upto 2.30 P.M.is, however, granted to the learned counsel to prepare the appeal and argue.'

The learned Judge thus contradicts Sri Hari Har Bakhsh Singh's affidavit that the prayer for adjournment was refused orally.

10. The explanation proceeds that after passing the above quoted order, he got busy with a Sessions case and then he retired for lunch as usual. When he came back to the Court after lunch and had disposed of the bail applications and other miscellaneous matters and the applicant's appeal was the only work left with him, he called it out. Sri Hari Har Bakhsh Singh then, in the presence of Sri Krishna Bahadur, Vakil, a lawyer of about 20 years standing, who had originally filed the appeal on behalf of both the appellants, made the application for transfer containing false and scandalous allegations. The learned Judge has attached to his explanation a copy of that transfer application in which amongst other things Sri Hari Har Bakhsh Singh has alleged that on an earlier occasion i.e. on 15-11-1961, in connection with a (Criminal Revision filed by Sri Hari Har Bakhsh Singh on behalf of one Sri Lala Har Sahai Lal against two sub-inspectors of police and some others, Sri Hira Lal Capoor had threatened Sri Hari Har Baksh Singh, 'like a school boy with criminal prosecution' and 'in the next breath passed an order of warning upon him,' though Sri Hari Har Bakhsh Singh 'wanted to render real help and service' to the Court. It is also mentioned in that application that on the same day i.e. on 15-11-61 after a minute or so Sri Hira Lal Capoor made a promise in open Court that all the cases of Sri Hari Har Bakhsh Singh in future would be transferred to other Courts. The explanation further states that on 25-7-1962 when the learned Judge had refused to adjourn the applicant's appeal at 11.30 A.M., Sri Hari Har Bakhsh Singh had uttered the words in Hindi which translated into English mean,

'in this democratic country even sweepers should be given time, what to say of a lawyer and the Judge should never refuse it.'

The learned Judge admits that on 25-7-1962 when the transfer application, whose contents are indicated above, was presented before him after lunch hour, he told Sri Hari Har Bakhsh Singh that no Court could accede to a request made on frivolous grounds, but Sri Hari Har Bakhsh Singh went on persisting in an undignified manner, again repeating that even a sweeper should be given time and the appeal must now be transferred to one of the Additional Courts. The learned Judge thereupon asked Sri Hari Har Bakhsh Singh in a 'loud voice' to keep quiet as orders had already been passed and he (Sri Hari Baksh Singh) had already crossed the limits of decency and decorum of the Court. Upon this observation of the learned Judge, Sri Hari Har Bakhsh Singh narrated an incident of the District Judge of Badaun stating that Sri Hira Lal Capoor must have read in papers that the Judge was given lathi blows and this should open the eyes of all the Courts. The learned Judge states that ordinarily he would have proceeded to draw contempt of Court proceedings against Sri Hari Har Bakhsh Singh, but realizing from his talk, conduct and previous experience, gathered from applications made before him in majority of which mischievous and false allegations with prayer of transfer of cases were made and ultimately withdrawn, either orally or in writing, the learned Judge contented himself by saying:

'That it does not behove a senior lawyer like you to talk and behave in this manner In Court. It seems that probably something is wrong with you and you do not appear to be normal.'

Thereafter Mansoor applicant filed an application asking for time as he intended to move an application for transfer of his appeal before the High Court and Sri Hira Lal Capoor granted him two weeks' time for the purpose of executing a personal bond of rupees two hundred.

11. The explanation of the learned Judge mentions another incident which happened in his Court on 10-8-1962, nearly a fortnight after the incidents of 25-7-1962, On that day Sri Hari Har Bakhsh Singh filed another transfer application in respect of Criminal Appeal No. 154 of 1952 (copy of which is also attached to the explanation of the learned Judge) in which he again repeated the uncalled for false and scandalous facts against Sri Hira Lal Capoor. On that application the learned Judge, as he has stated in his explanation, passed an order refuting the allegations as false and scandalous, but he transferred the appeal to another Court. The explanation closes with the following request:

'In the end, I would very respectfully submit once more on the basis of the said facts that the conduct of Sri Hari Har Bakhsh Singh in this Court has repeatedly been reprehensible and, if the Hon'ble High Court is pleased to accept my explanation, I would make a humble prayer that to preserve the prestige and decorum of the subordinate Courts also some serious action must be taken against Sri Hari Har Bakhsh Singh in order to put a check on him for future. It is not only with this Court that he has behaved in the manner described above, but I have been informed that he has been in the habit of behaving indecently and in an undignified manner with other District Judges also.'

12. I have given above a gist of the allegations and counter allegations made by Sri Hari Har Bakhsh Singh and the learned Sessions Judge against each other. In my opinion it is not necessary for me to give a considered finding as to which of the two versions is correct, because the present transfer application fails even on accepting the correctness of the allegations made by Sri Hari Har Bakhsh Singh. At this stage I only wish to express my regret and strong disapproval of the objectionable and distressing state of affairs disclosed from the two versions, which in my opinion needs to be stopped at once. In a democratic set up the Bench and the Bar are both indispensable for the proper dispensation of justice. One cannot function without the other and for that reason the relations between the two should be of the highest co-operation. They must hold each other in utmost respect and regard. One fails to understand why there should be an occasion for any clash or unpleasantness between a lawyer and a Judge much less for the use of violent language or show of unruly conduct only because in the conduct of cases they cannot always see eye to eye with each other. Each is entitled to his views without encroaching upon the rights and the dignity of the other. While sharply differing with each other in their approach to a case, it is still possible to perform their respective functions resolutely and with strength without infringing the rules of discipline, decorum and decency. Those who do not subscribe to this code of conduct and attempt to disturb the smooth working of the courts by use of undignified language and exhibition of violence and rough manners expose themselves to the risks of law. So far as the present transfer application is concerned, in my opinion it is without substance and must be dismissed.

13. A party has a right to get his case transferred from the file of a Judge, if it is proved that the Judge has some bias against any party or in the case generally and will not bring to bear an impartial mind on it. There is also good ground for transfer of a case where the High Court is satisfied that even though the Judge is free from any bias and his impartiality is above question, there exist circumstances which may cause a reasonable apprehension in the mind of a party that justice will not be done to his case. In the latter contingency the case has to be transferred to uphold the settled principle that not only justice should be done by the courts, but it should also be shown to be done.

14. In my opinion none of the two tests stated above is satisfied in the applicant's case. In the application for transfer filed before me, Mansoor has stated in paragraph 14:

'That the applicant has, therefore, got apprehensive of the Court below'.

It is noticeable that this averment is missing from Mansoor's affidavit and also from the affidavit filed by Sri Hari Har Bakhsh Singh. Originally this paragraph was put down in Mansoor's affidavit, but later on, for reasons best known to him, it was scored out. The deletion of this paragraph from Mansoor's affidavit and its complete absence from the affidavit of Sri Hari Har Bakhsh Singh, in the circumstances of the case is clearly purposive and not accidental. The applicant did not dare swear on oath, and he could not do so because there was no ground for it, that personally he has any. apprehension about the impartiality of Sri Hira Lal Capoor in his case. It is not suggested even remotely that Sri Hira Lal Capoor knew Mansoor from before and had any reason to be against him or had any bias in the case on account of other reasons. Thus there is complete absence of evidence to show that Sri Hira Lal Capoor would not judge Mansoor's case impartially.

15. The next requisite condition for the transfer of the appeal has also not been made out. I agree that on account of the happenings of 25th July, 1962, before that date and even after that, the relations between Sri Hira Lal Capoor, and Sri Hari Har Bakhsh Singh are far from cordial. However I am not prepared to hold that on account of those discordant relations Sri Hira Lal Capoor cannot and will not judge the case of every client who happens to engage Sri Hari Har Bakhsh Singh as a lawyer impartially. I cannot imagine that any Judge can or would be so unconscientious as to make it a point to convict any and every accused and send him to Jail merely because he happens to engage a lawyer with whom the Judge's relations are not very happy. As already discussed, there is thus no reasonable ground for Mansoor to apprehend that Sri Hira Lal Capoor will not do justice to his case on account of the engagement of Sri Hari Har Bakhsh Singh. None of the two requisite conditions being satisfied, Mansoor's application is therefore, liable to dismissal.

16. Further, the application for transfer does not seem to have been made bona fide. The circumstances clearly prove that it was filed not because Mansoor or Sri Hari Har Bakhsh Singh had any apprehensions about the impartiality of Sri Hira Lal Capoor in the case on account of the engagement of Sri Hari Har Bakhsh Singh in it, but because he refused to adjourn the case on the asking of Sri Hari Har Bakhsh Singh. If Sri Hari Har Bakhsh Singh or Mansoor genuinely apprehended that Sri Hira Lal Capoor would not do justice to Mansoor's case because he had engaged Sri Hari Har Bakhsh Singh, Sri Hari Har Bakhsh Singh would have straightway applied for the transfer of the appeal to some other Court either before the learned Judge himself or before this Court and not asked for an adjournment of the appeal to enable him to prepare and argue it before Sri Hira Lal Capoor. The fact that Sri Hari Har Bakhsh Singh requested for the adjournment of the appeal to enable him to prepare and argue it a week after completely negatives his case that he or his client apprehended injustice at the hands of Sri Hira Lal Capoor on account of the past strained relations between Sri Hira Lal Capoor and Sri Hari Har Bakhsh Singh. The transfer application was movedby Sri Hari Har Bakhsh Singh only when he had failed to obtain an adjournment of the appeal which shows that the application which contained scandalous allegations against the Judge was motivated and not bona fide.

17. No party or a counsel is entitled to an adjournment of his case as of right in the absence of any provision to the contrary in law or any rules. It is in the discretion Of the Court to adjourn or not to adjourn a case, as he thinks, proper, having regard to a large number of circumstances,particularly the position of his cause list. An adjournment cannot be granted at the bidding of the lawyer for a party. In the circumstances of the present case Sri Hira Lal Capoor was perfectly justified in refusing to adjourn the appeal.

The Subordinate Courts are required to make up a certain quota of work every day. If, as stated by Sri Hira Lal Capoor in his order on the adjournment application, and there is no reason to doubt its correctness, by adjourning the appeal he would not have been left with sufficient work for the day, it would have been wholly wrong of him to adjourn the appeal only because it would suit the personalconvenience of Sri Hari Har Bakhsh Singh. The Judge bound to abide by the rules and orders of the High Court in preference to the personal convenience of an individual lawyer who chooses to accept a brief without any record, not even the judgment under appeal, just a day before thehearing of the appeal. If Sri Hari Har Bakhsh Singh accepted the appeal at such a short notice, he did so at his own risk. He should have been ready to argue it or to leave the brief in case an adjournment was not possible. Any way, I am satisfied that Sri Hira Lal Capoor exercised his discretion in the matter correctly, because in spite of refusing an adjournment, he granted time to Sri Hari Har Bakhsh Singh to prepare the appeal between 11.30 A.M. and 2.30 P.M. and then argue it. The whole unfortunate episode in my opinion was precipitated on account of the misconception of Sri Hari Har Bakhsh Singh, who seems to believe that the Judge was bound to adjourn his case as and when desired by him, irrespective of all other considerations or else face the odium of strong language and intimidation.

18. The application for transfer in my opinion is frivolous and devoid of all force and I dismiss it accordingly. The prayer for the transfer of the appeal is refused. Theapplicant shall pay Rs. 50/- as costs to the counsel forthe State, Sri D.N. Jha. The stay order is vacated. The appeal shall be heard by Sri Hira Lal Capoor, Sessions Judge, Hardoi.

19. Regarding the request of the learned Sessions Judge for taking action against Sri Hari Har Bakhsh Singh, in myopinion in the context of the events, it has to be brought to the notice of the Hon'ble Chief Justice. If it is correct that Sri Hari Har Bakhsh Singh behaved with Sri Hira Lal Capoor in the alleged manner and tried to intimidate him by citing the example of the District Judge, Badaun, who, according to Sri Hari Har Bakhsh Singh was beaten with lathis, and, that other Courts should take a lesson from it, Sri Hari Har Bakhsh Singh's act would amount to grosscontempt of Court and needs to be seriously viewed.

In that connection the attention of the Hon'ble Chief Justice has also to be drawn to the fact that the incidents complained of are too serious to be lightly treated. They are not such as sometimes happen accidentally and casually on account of some misunderstanding or a slip between the lawyer and the Court or which occur in the heat of the moment without any premeditation. According to both the versions there is a history behind the events of July 25, 1962. Sri Hari Har Bakhsh Singh's case is that Sri Hira Lal Capoor had subjected him to indignity and insult notonly on 25-7-19S2, but on an earlier occasion also i.e. on 15-11-1961, as mentioned in the transfer application moves by him before the learned Judge, a copy of which is attached to the explanation of the learned Judge. On the contrary Sri Hira Lal Capoor's explanation makes out that Sri Hari Har Bakhsh Singh is in the habit of bullying the Courts into submission to accept his demands, in connection with his cases, by his unmannerly behaviour, rough language and threats also, if need be. There is thus no meeting ground between the two and this unhealthy and reprehensible state of affairs has to be purged with suitable action. In view of the above I am of opinion that this matter should be placed before the Hon'ble Chief Justice for taking such action as he thinks necessary to safeguard the prestige of the subordinate judiciary.

However, as stated above I do not express any opinion whether the allegations made by Sri Hira Lal Capoor against Sri Hari Har Bakhsh Singh are correct, lest the case of the parties may be prejudiced in future. Such proceedings, if initiated by the Hon'ble Chief Justice, in my opinion, would be to the advantage of Sri Hari Har Bakhsh Singh also because according to him he has been unjustly victimised and insulted by Sri Hira Lal Capoor. They would give Sri Hari Har Bakhsh Singh an opportunity to vindicate his stand as to who was in the wrong and whether Sri Hira Lal Capoor insulted him repeatedly in the manner alleged by him.

20. In the result, I direct the Deputy Registrar to place the file of this transfer application, as also my order on it, before the Hon'ble the Chief Justice in accordance with Chapter XVIII, Rule 19 of the Rules of the Court.


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