The Allahabad High Court while allowing an application observed that the Vakalatnama cannot be treated merely a piece of paper which creates the right of holding for certain Advocates from appearing on behalf of the opposite party.
A Single Bench of Justice Saurabh Srivastava passed this order while hearing an application under section 482 filed by Shivanshu Mugdal.
The application under Section 482 Cr.PC has been filed with a prayer to quash the order dated 05.04.2023 passed by the Sessions Judge, Agra in Sessions Trial, arising out of Case under Sections 147, 148, 149, 302, 307, 506 IPC at Police Station Shahganj, District Agra.
It is the case of the applicant that a first information report has been lodged on 03.11 2021, under Sections 147, 148, 149, 302, 307 IPC at Police Station Shahganj, District Agra in Case by the first informant against 11 accused persons pertaining to the alleged occurrence dated 02.11.2021
On dated 07.01.2022, the opposite party no 2 filed his Vakalatnama to privately oppose the defense in the sessions trial by engaging five Advocates, who are all leading Senior Advocates of the District Court at Agra, two Vakalatnama were filed on the same date wherein a total of ten Advocates were shown to be engaged by the opposite party no 2, again on 22.04.2022 and 20.05.2022, two more Vakalatnama were filed on behalf of the opposite party no 2 showing the engagement of Ashok Kumar Gupta, Shishupal Singh Yadav and Naresh Pal Singh Yadav as his Advocates, opposite party no 2 had virtually engaged the entire Criminal Bar of the District Court at Agra, most of the said Advocates being the leading criminal law practitioner of the District Court at Agra.
The very relevant aspect as highlighted by the Senior Counsel appearing on behalf of the applicant that in the aforesaid Vakalatnama dated 07.01.2022, the Advocate Welfare Ticket with the required stamp was not affixed, in which out the five Advocates, the name of Arvind Kumar Sharma, Advocate was also there.
The Vakalatnama as submitted by the opposite party no 2 only got the signatures of the Advocate on the Vakalatnama but so far as Arvind Kumar Sharma, Advocate is concerned, no documents pertaining to the case were provided to him by the opposite party no 2 and neither he was ever instructed to appear on behalf of the opposite party no 2 during the trial.
In absence of complete instructions, Arvind Kumar Sharma, Advocate neither opposed the bail application of the accused and nor did he advanced any arguments on behalf of the opposite party no 2, moreover, Arvind Kumar Sharma, Advocate never got any instructions from the opposite party no 2 inasmuch as neither the facts of the case was discussed by the opposite party no 2 with the aforesaid Advocate, nor any documents pertaining to the case were given by the opposite party no 2 and as such, Arvind Kumar Sharma, Advocate who never appeared on behalf of the opposite party no 2 on any date fixed by the court concerned at the time of hearing of the trial, only he was engaged on dated 13.02.2023 through Vakalatnama on behalf of the applicant by Arvind Kumar Sharma, Advocate and Manish Pathak, Advocate.
The co-accused person, Syed Zafar Rizvi @ Shanu also engaged Arvind Kumar Sharma, Advocate along with Manish Pathak, Advocate as their counsels before the Sessions Trial through Vakalatnama dated 03.03.2023.
The Vakalatnama dated 07.01.2021 as filed by the opposite party no 2 was not only defective but also Arvind Kumar Sharma, Advocate was not being given complete instructions by way of any documents relevant to the case by the opposite party no 2, Arvind Kumar Sharma, Advocate submitted an application on 06.03.2023 before the District and Sessions Judge, Agra and the same was numbered as Application with the prayer for withdrawal of his Vakalatnama earlier preferred in Sessions Trial on behalf of the opposite party no 2.
The abovementioned application was kept pending and no orders were passed thereupon. Under such circumstances, an application was filed by the applicant through his Pairokar Vineet Sharma on 01.04.2023 in the Court of learned District and Sessions Judge, Agra stating therein that the counsel engaged and authorized by him had submitted an application dated 06.03.2023 which has not yet been decided, it was also pointed out in the application dated 01.04.2023 that the opposite party no 2 had filed Vakalatnama dated 07.01.2022 by misleading the Advocates through engaging them inasmuch as the Advocate Welfare Ticket had not been affixed in the said Vakalatnama and therefore, the said Vakalatnama, being defective, was liable to be rejected.
While entertaining the Application, the same was rejected vide order dated 05.04.2023 which impugned the application.
For substantiating the stand taken up by the Senior Counsel, it has been pointed out that the trial court absolutely lost sight of the fact that the U.P Advocates Welfare Fund Act, 1974, inter- alia provides under Section 9(1) of the said Act that every Advocate shall affix on the Vakalatnama accepted by him a Welfare Stamp of the value of ten rupees and no court, tribunal, authority or person shall receive any Vakalatnama in favour of such Advocate unless it is so stamped in addition to any stamp required under any other law for the time being in force.
It has been further argued by Satish Trivedi, Senior Counsel that Section 5 of the said Act provides that wherein any case the Welfare Stamp referred to in sub-section (1) is not affixed on the Vakalatnama or is not filed by any Advocate, the Court shall not permit such Advocate for further proceeding in that case.
It has also been contended by Senior Counsel that the trial court miserably failed to appreciate that without effective and genuine representation by a counsel on his behalf, the applicant could not be afforded a fair trial.
It is submitted that the engagement of Arvind Kumar Sharma, Advocate by the opposite party no 2 was a farce, sham and was illusory and he had not been genuinely and effectively engaged by the opposite party no 2.
Even after considering all the vital facts as narrated by Senior Counsel appearing on behalf of the applicant, the court of District and Sessions Judge, Agra rejected the prayer of the applicant vide order dated 05.04.2023 which impugned the application under Section 482 CrPC.
The Court observed that
It is crystal clear that in a random and fashionable manner, signatures of so many Advocates have been taken on different Vakalatnama and the same have already been submitted before the sessions trial wherein one of the counsel was Arvind Kumar Sharma, Advocate, in pursuance of the execution of Vakalatnama, no brief has ever been given in shape of relevant documents and papers by the opposite party no 2 to Arvind Kumar Sharma, Advocate. More so, Arvind Kumar Sharma, Advocate never appeared and argued the matter on behalf of the opposite party no 2 before the trial court and as such, the Vakalatnama cannot be treated merely a piece of paper which creates right of holding for certain Advocates from appearing on behalf of the opposite party, in absence of any specific instructions, the counsel cannot be treated as bonded and handcuffed to the client who sought signatures over Vakalatnama, which was itself defective in nature, since the same was not having the Advocate Welfare Ticket.
The essential ingredients which are required for establishing the relationship of client and Advocate are the discussion of the matter for which the Advocate is going to appear before any court of law for protecting the interest of his client by way of assisting the court on the basis of relevant documents and the correct proposition of law. In the matter, it is admitted case of both the parties that at no point of time, any brief or documents has ever been handed over from the opposite party no 2 to Arvind Kumar Sharma, Advocate and as such, only by obtaining the signatures over the defective piece of paper cannot establish a relation between the client and his counsel.
By bare perusal of the Section 9(5) of the said Act, it is crystal clear that in case the Welfare Stamp referred to in sub-section (1) is not affixed on the Vakalatnama or is not filed by any Advocate, the Court shall not permit such Advocate for further proceeding in that case, meaning thereby, if the Advocate Welfare Stamp is absent from the Power/Vakalatnama submitted before the court concerned, the Vakalatnama signed by the concerned Advocate cannot be permitted to proceed in the matter and as such, in absence of Advocate Welfare Stamp from the Vakalatnama which has been submitted by the opposite party no 2 before the trial court, no counsel who put his signatures over the same, is permitted to proceed in the matter.
The above mentioned factual and legal points were discussed by the District and Sessions Judge, Agra while passing the order dated 05.04.2023 which is under challenge in the application.
“An Advocate who is found guilty of contempt of court may also, as already noticed, be guilty of professional misconduct in a given case but it is for the Bar Council of the State of Bar Council of India to punish that Advocate by either debarring him from practice or suspending his licence
In the matter, there was hardly any occasion available before the District and Sessions Judge, Agra to comment upon the conduct of an Advocate while adjudicating the application for withdrawal of Vakalatnama preferred by Arvind Kumar Sharma, Advocate, since the same application has already been allowed by the Bar Council of U.P and as such, the matter was out of judicial ambit of the District and Sessions Judge”, the Court further observed while allowing the application.
“In view of the aforementioned facts and circumstances, the order dated 05.04.2023 passed by the District and Sessions Judge, Agra is hereby quashed and set aside”, the Court ordered.