Tuesday, April 16, 2024

Allahabad High Court calls Bar Association’s ban on lawyers taking up cases against fraternity unconstitutional

The Allahabad High Court has directed that a resolution passed by the Bar Associations that none of its members will do ‘pairvi’ (lobbying) in any criminal case against a member Advocate or his family members is not only unconstitutional, but also against the ethics of professional advocacy.

A Single-Judge Bench of Justice Mohd Faiz Alam Khan on Monday passed this order, while hearing an application filed by Mohammad Ahmad Khan under Section 407 CrPC.

The application prayed to transfer the proceedings of the case pending in the Court of Civil Judge (JD)/Judicial Magistrate, Utraula, District Balrampur to the Sessions Division District Bahraich or Sessions Division District Ambedkar Nagar or Sessions Division Ayodhya on the ground that three brothers of respondents – Abid Rabbani Khan, Aqib Rabbani Khan and Amir Rabbani Khan as well as their father Ghulam Rabbani Khan, are Advocates and practising in outlying Court Utraula and Balrampur judgeship.

SK Singh, Counsel for the applicant, submitted that earlier the Advocates of Bar Association Utraula had passed two resolutions dated April 6, 2016 and September 11, 2018, wherein it was resolved that no Advocate shall appear or will file any proceedings of the criminal nature against the member of that bar or their families and therefore, having regard to the fact that three brothers and father of respondents are practising Advocates at the court of Civil Judge (JD)/Judicial Magistrate.

It was also submitted by Mr Singh that on many occasions, the Advocates having good relations with the respondents had beaten the Counsel of the applicant and therefore, there is no hope that a fair trial may be conducted at the court of Civil Judge (JD)/Judicial Magistrate, Utraula.

It is further submitted that the applicant is now residing at Pune and is coming on each and every date to attend the date fixed by the Civil Judge (JD) Utraula.

AZ Siddiqui, Counsel appearing for the respondents, submitted that the grounds taken by the applicant in his application are frivolous and could not be believed as of now, no such resolution passed by the Utraula Bar Association is existing and the application has been moved only on the ground of apprehension, while no such apprehension is existing. The application is devoid of any merits and is liable to be dismissed.

It is also submitted by Siddiqui that the proceedings of the subordinate court has been halted due to the interim order granted by the Court and the allegations of ‘marpeet’ by the Advocates of respondents to the Advocate of applicant is patently false and could not be believed.

The Bench said, “It is evident that by passing an order dated June 29, 2021, the Court had directed the District and Sessions Judge, Balrampur to submit a report with regard to the two resolutions mentioned herein before allegedly passed by the Bar Association, Utraula, whereby it was allegedly resolved that no Advocate of that Bar Association would do ‘pairvi’ in a case instituted against any Advocate or his family members.

“In compliance of the order of the Court, District Judge, Balrampur has sent a report by his communication dated July 14, 2021, wherein after procuring the information from the Administrative Officer of the Judgeship, Balrampur as well as from the then President of Utraula Bar, Vijay Kumar Srivastava, as well as on the basis of information provided by Civil Judge (JD)/Judicial Magistrate, Utraula, he concluded that such resolutions were passed earlier by the Bar Association, Utraula on April 6, 2016 and September 11, 2018, however subsequently in the general body meeting of the Bar Association held on November 2, 2018, both these resolutions were cancelled. It is also stated in the communication that the then President, Bar Association has also tendered his apology for passing such resolutions.

“The District Judge and having perused the material brought on record by the parties, it is evident that the two resolutions of the Bar Association, Utraula relied on by the learned counsel for applicant are not existing now, as the same appears to have been recalled by the same Bar Association in its general body meeting held on November 2, 2018. Since the two resolutions, namely of dated April 6, 2016 and September 11, 2018 are not in operation today, therefore, the Court refrains itself for making comments on that, however suffice is to say that such resolutions are not only un-constitutional, against the ethics of professional advocacy as well as against the concept of Article 14, 21 and 22(1) of the Constitution of India. In the considered opinion of this Court equal opportunity to secure justice could not be denied to any citizen of this country”, the Court observed.

The Court noted from the report of the District Judge that no such resolutions, which have been made the basis of filing this application are existing today, it could not be said that the applicant may not have a fair trial by prosecuting his case by a good lawyer or counsel at Utraula, but the Court could not lose sight of the fact that earlier two resolutions mentioned herein before were passed by the Bar Association, Utraula, whereby it was resolved that no member of the Bar Association Utraula will do pairvi in any criminal case against a member Advocate or his family members. Justice should not only be done but must also be seen to be done.

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“In the considered opinion of the Court no harm would be done to either party if the case pending before the Civil Judge (JD)/Judicial Magistrate, Utraula in the facts and circumstances of the case be transferred to the court of Chief Judicial Magistrate, Balrampur, who naturally is the senior most Magistrate in the District Judgeship and no harm in this process would be caused to either party as both the parties are residing at Utraula, which is hardly 50 Kms. away from Balrampur”, the Court said.

“Having regard to the above mentioned facts and reasons, the application is disposed of with a direction, Asif Rabbani Khan v. Mohd.Ahmad Khan and others u/s. 406, 420, 506 I.P.C. P.S.Utraula, pending in the court of Civil Judge (J.D.)/Judicial Magistrate, Utraula, District Balrampur is hereby transferred to the court of Chief Judicial Magistrate, Balrampur, who shall proceed and dispose of the case expeditiously, without granting soft adjournment to the either parties in accordance with law,” the order added.


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