Bhulau vs State of M.P.

Gulab C. Gupta, J.

The appellant feels aggrieved by his conviction u/s 304 (ii) I.P.C. and sentence of 7 years R1 by judgment dated 29.1.1986 passed by Shri B. S. Gupta. Additional Sessions Judge. Bilaspur in Sessions Trial No. 117/84 and challenges the legal validity thereof in this appeal u/s 374 (2) Cr. P. C.

The appellant is alleged to have given sabbal blow on the head of Kaliram. S/o Sarju Yadav on 19.11.83 blow and thereby caused his death and committed the aforesaid offence. Prosecution alleges that the agricultural Held on which the incident has taken place belongs to Jamunbai (P.W. 11), who had given the same of adhivatia to Rajaram (P. W. 5). Rajaram had sown paddy crop on the said (sic) appellant is the real brother of Jamunbai and claimed right over the said laud. On 19.11.1983 the appellant cut the standing crop and was getting ready to transport the same to his house, when the deceased Kaliram. in the company of other witnesses, reached the (sic) and objected to culling and transporting the crop. The deceased claimed to he the mukhtiar or the holder of power of attorney of Jamunbai. On this the appellant, who has tabbal, - a shars edged axe like instrument generally used for culling and chopping with him (sic) the deceased on his head by the same, causing the fatal injury. The deceased started bleeding and fell on the ground. The appellant ant others then ran away. The deasased was taken to the police Station, where report of the incident was lodged by Rajaram (P. W. 5). as per Ex./7. The decesed was first sent to the hospital at Pandariya and thereafter to Bilaspur where he died on 20.11.1983 at about 5.00 A. M. Dr. T D. Tiwari (P. W. 16) had first examined, the deceased and gave his report (Ex. P-35). Dr. K. B. Kshetrapal (P.W. 15) took X-Ray of the skull of the deceased and found frontal and parietal hone fractured. His report is Ex. P/31. Dr. Patle (P. W. 18) performed autopsy of the dead-body and gave his report (Ex. P-IA) and opined that the death was due to injury on the head. After completion of investigation, the appellant was charged u/s 302 IPC and sent for trail to the learned A. S. J.

It may be noticed that two other friends of the appellants, viz. Rambharosh and Bhagwat were also put on trail with him after being charged u/s. 302/34 & 325/341. P. C. Since they have been acquitted and there is no appeal by the State against their acquittal, facts relevant to them are not being mentioned.

This appeal is pending in this Court since 31.1.1986. Though it is ripe for hearing since 30.5.86. it could not be heard because of long list. It was directed to be listed for final hearing in the week commencing from 1.7.1993 and yet could not be heard so far. On 2.9.1993 when it was listed and came up for hearing, learned counsel for appellant did not appear and was reported to be on strike. The hearing was, therefore, adjourned. On 8.10.1993 when it was again listed for hearing no one appeared for the appellant. It is true that the appellant has been enlarged on bail pending decision of this appeal, but it does not mean that it should never be heard. Why is the appellant unrepresented in this Court He has engaged an advocate who has undertaken to appear and plead for him. The Advocate accepting the brief and assignment is under a legal and moral obligation to look after his interests in this court. How is it that inspite of fixing final hearing of this case and publishing the same in the Court''s cause list in accordance with law, the Advocate, who has undertaken to represent the appellant is absent ? There is no communication either from the learned counsel or from the Bar Association to this Court in this behalf and hence this Court cannot, with any amount of authenticity state the reason of non-appearance of the learned counsel. Local newspaper reports, however, inform that a delegation of High Court Bar Association, Jablapur had met the Chief Justice of India and the State Law Minister at New Delhi on 13th & 14th August, 1993 and submitted a representation to them, claiming transfer of the Chief Justice of this Court to some other State. Newspapers also report that these dignatories had expressed some legal difficulty in doing anything in the matter. Thereafter, in a meeting of Association held on 18.8.1993, the Bar Members decided to ''strike'' work for a week to press their demand of transfer of the present Chief Justice. As a consequence of this decision, the advocate struck work from 19.8.93. the one and the only demand of the Bar Association so far was the transfer of the Chief Justice and not of any other Judge of this Court. In fact, the demand for transfer of the Chief Justice was mainly due to transfer of 3 Hon''ble Judges of this Court from one Bench to another, which the Bar has condemned in its meeting on 18.8.1993.

It appears that yet another meeting of the Bar Association was held on 23.8.1993. In this meeting, some advocates are reported to have stated that "Justice Gulab C, Gupta is at present the only person in the Chief Justices confidence and is actively supporting him in his misdoings." It was, therefore, alleged that "he has been no less responsible for the down-fall of the High Court in the last two years or more." The meeting, therefore, decided to seek Justice Gupta''s transfer as well and to continue to strike untill the Chief Justice and Justice Gupta are transferred. It further appears that the strike continued up to 12.9.1993 and was withdrawn from all Courts, except the two Courts, mentioned above, w. e. f. 13.9.1993. Since then, the work in other Courts is continuing with the help of advocates. The work in this court is also continuing, but without any advocate representing litigants. Large number of litigants appear themselves and plead for themselves. Apparently, therefore, though the work in this Court is continuing it is being done without the assistance of advocates.

An important part of the story is that even the Advocate General, Addl. A. G., Dy. A. G.,G. As. and other learned counsel for the State of M. P. are also not appearing in this Court. The impression so far created is that even they are seeking transfer of the Chief Justice and this Court to some other State.

There is yet another aspect of this story. One Shri Kuameresh Pathak, Advocate, Jabalpur and a member of the Bar Association, Jablapur filed a writ petition in the Supreme Court of India under An. 32 of the Constitution on 11th August. 1993 praying that the Supreme Court should be "pleased either to exercise jurisdiction under Article - 222 of the Constitution of India to transfer the Res. No. 2. Hon''ble Chief Justice of High Court of M. P. from M. P. High Court to any other High Court and another Chief Justice be posted in this High Court or in the alternative, under the provision of Art. 223 of the Constitution of India, this Hon''ble Court most graciously be pleased to issue a direction to the Res. No. 1. for appointment of the Acting Chief Justice for smooth running of the business of the High Court of Madhya Pradesh. The Respondent No. 2 be advised to take rest till his term." This writ petition is registered as Writ Petition (Civil No, 632/1993 in the Supreme Court. During the hearing of this Petition on 23.8.93, the Supreme Court was informed of the Strike by advocates in support of the same demand. The Supreme Court is reported to have appealed to the advocates to withdraw the strike and permit the Court to decide the petition dispassionately. There does not appear to be any effect of this appeal. The matter seems to have been heard on 2.9.1993 and 7.9.1993 when the Supreme Court noted with regret the continuing agitation of advocates and again appealed to them to withdraw the same and restore peaceful working of the High Court. Newspapers report that a representative of Bar Association had then stated in the Supreme Court that though the advocates will withdraw their strike in general, they would not appear in the Court of Chief Justice and this Court. It was perhaps because of this statement that advocates have withdrawn their strike w.e.f. 13.9.1993 from all courts, except the court of the Chief Justice and this Court.

It is sad that advocates, who are treated as ''officers'' of the Court, have not shown any regard to the appeal of the apex court of the country. The judicial discipline built around Art. 141 of the Constitution requires even obiter of the apex court to be followed as the ''rule of law''. If it was an ordinary litigation, the Supreme Court might have taken a serious view of the matter and may have treated this strike as an act to ''overawe'' the Court and an attempt to obtain a favorable verdict, as in the case of Mohd. Zahir Khan Vs. Vijai Singh and others, The limit to which advocates can be permitted to ''overawe'' the Court would surely be laid down by the apex court in some suitable case, if not in the ease of Kumaresh Pathak. But, because of the pendency of the matter in the Supreme Court, this Court must refrain from examining it any further,

This Court must, however, consider the effect of non-appearance of the learned counsel of the appellant in this case. In V.C. Rangadurai Vs. D. Gopalan and Others, the Supreme Court brought the solemn nature of the obligation of an advocate towards his clients. The Court emphasised the trust'' aspect of this obligation and hoped that the advocate would not betray it. In M.B. Sanghi, Adv. Vs. High Court of Punjab and Haryana and others, the Court again emphasised this important aspect of special relationship between the advocate and his client and hoped that the trust would be honoured at all costs. In Lt. Col. S.J. Chaudhary Vs. State (Delhi Administration), the Court considered this obligation in the context of a criminal case and held that the obligation of the advocate to appear and plead was more ''important in a Criminal case and failure of the advocate to attend the criminal Court would amount to misconduct within the meaning of sec. 35 of the Advocates Act. 1961. It is for the learned members of the fraternity to ponder over the matter in the context of their obligation. What are they abstaining form ? By not appearing in this Court, they are really punishing their clients, who have reposed there complete faith and confidence on them and which faith they are statutorily bound to honour. As far as this Court is concerned, it has its own obligation in the matter and the most important of all them is the obligation to do "justice''. Since justice delayed is considered to he justice denied, this Court would decide the case even without the assistance of the advocates. This Court has not power to require the advocate of the parties to appear and argue. This Court has only the obligation to hear if he appears and nothing more. May be that non-availability of assistance of the advocate makes this Court''s job little more arduous and time consuming, but this Court is under constitutional obligation to accept the same and does its best in the matter. Lawyers in this context, act as ''conscience keepers'' of the Court and ensure justice. But it is not to say that justice cannot be done without them.

The complaint that this Court is the "only person" and is "actively supporting" the Chief Justice in his misdoings betrays the constitutional knowledge of complainants. The High Court as a constitutional court is an organic whole consisting of the Chief Justice and all judges. All of them are expected to work in union with each other and no one requires support of any one. All of us are bound by our oath of office and constitution and the laws and know our obligations. The use of the word ''misdeed'' indicates ''judgment''. Since socalled ''mis-deeds'' of the Chief Justice have been taken to the apex court for their judgment, the advocates should have awaited the verdict. They cannot claim a better status in the decision making process than the Supreme Court. Then, judging'' requires understanding and commitment to the cause of ''justice''. The process of decision-making requires ''discipline''. It is surprising that those who pray, day in and day out. in the name of ''natural justice'' have forgotten the same when they undertook to pass ''judgment'' on others. This Court takes this opportunity to state that it has never been a party to any misdeed of anyone and would never accept such a charge. This court also wished to clarify that it has not come across any ''Misdeed'' of the Chief Justice and hence there has been no occasion for it to support it. Since the Chief Justice is to retire on 15th December, 1993, there is every reason to feel what charges against him are motivated and made for oblique purpose. A Chief Justice from outside the State suffers from many handicaps on assuming leadership at a new place. His task really becomes arduous when he is threatened with non-cooperation by his Brother Judges and Advocates. If such a Chief Justice is also physically ill and mentally unsatisfied, his task becomes all the more difficult. It is well - known that our Chief Justice has not been keeping good health and. therefore, if he has not been able to attend the Court on some particular occasions, the same should not give a cause of complaint. There are many others, who enjoy such a privilege in this Court and its Benches. The Bar has so tar adopted a human-approach to this situation and has co-operated. Then the record of the Chief Justice indicates that his work and disposal are little above the ordinary and hence, there is not justifiable cause of complaint against him. All other complaints are also not of the type that should require Advocates going on strike and thereby committing breach of trust of the litigant-public. Those who charge the Chief Justice of a High Court need to have an introspection as the same would do them well. The present Chief Justice would retire on 15.12.1993, but the judgment makers would remain and attempt to make their future in this court. The introspection would help them usher into a happy era. This Court has, therefore, no hesitation in holding that those who allege the aforesaid against it do so ''recklessly'' and since they are showing signs of myrterdom for the sake of it. they should be ready for the sacrifices. They must, however note that we Judges, including the Chief Justice, are no ordinary mortals and are made of sterner stuff, capable of withstanding even the worst shock,. Our capacity and ability to honour our oath of office should be doubled.

There is yet another disturbing aspect of the matter. Newspapers report that ''senior advocates'' are afraid of appearing in this Court, as they feel ''insulted and humiliated''. It must be place on record that this Court has utmost regard for seniors and would not even dream of insulting of humiliating them. Indeed, senior advocates represent the wisdom of this Court and cannot be treated in any other manner, except with respect. According to this Court, the adjective senior is not a price-tag stapple on any saleable commodity as in a departmental store. The word illustrates deep knowledge of law and legal principles and capacity of the person to communicate with the Court. The word also implies commitment of the person not only to the cause of ''justice'' but also to ''high professional standards'' Such a person could really not be insulted or humiliated by anyone, much less this Court. It is satisfying that no senior is reported to have made this camplaint. This Court has personally known senior of this Court and can state, without fear of contradiction, that they would never invite the Bar Association to strike for their cause. Indeed, this Court believes that if the senior advocates had their say in the matter there would have been no occasion for the strike or work stoppage and all the complaints of all Advocates would have been sorted out with their help. Silence of seniors is, therefore, an important factor in the present crisis. This Court would still hope that senior advocates would become alive to their commitment to the cause of justice and start asserting themselves even against odds and risks. For the time being, this Court must remain satisfied by stating that senior advocates are vital and important for administration of justice and cannot be ignored.

Under the circumstances, this Court is of the opinion that the absence of Advocates for this Court and non-appearance of appellant''s Advocate ill this appeal are without any justification, whatsoever. Under the circumstances, it is not obligatory for this Court to adjourn the case and await them. Section 386, Or. P. C. does not require such a course to be followed and justifies decision on merits on the basis of record of the case. This Court must, however, note the decision of Supreme Court in Ram Naresh Yadav and others v. State of Bihar AIR 1987 S.C. 1500 . wherein, it has been observed that criminal matters should normally not be decided on merits, without hearing advocates of the parties. It has been further observed in that case that, in case the Court comes to the conclusion that Advocates are trying to either waste the time of the Court stall the working of the Court, they should be disciplined by dismissing their cases for want of prosecution. This decision does not seem to have taken into consideration the language of section 386 Cr, P. C. and yet the aforesaid decision is binding on this Court. Earlier in Shyam Deo Pandey and Others Vs. The State of Bihar, it was held that ''it is the duty of the appellate Court to go through the record and dispose of the appeal on merits''. It was further clarified that this duty of the Court is irrespective of the question whether the appellant appears or does not appear. If he appears, he is bound to be heard, if not. the record should he perused and appeal disposed of on merits, Apparently, the decision in Ram Naresh Yadav''s case presents a different aspect of the matter. In this connection, decision in Prabhakaran Nair and Others Vs. State of Kerala, deserves notice, where it was laid down that there was not provision in the Or. P. C. to dismiss an appeal for non-prosecution: if the appellant or his advocate fails to appear on the day fixed and it was the obligation of the Court, in such a situation, to peruse the record and dismiss the appeal, in case the finding be that no sufficient, ground for interference is made out. This Court would, however, not like to decide as to which of the two cases would be correct. Since this Court has come to the conclusion that there is not justification for non-appearance, it would, following Ram Naresh Yadav''s case (supra), dismiss the appeal for non-prosecution.

This Court is. however, of the opinion that there is no merit in the appeal. That Kaliram died because of injury found on his head is beyond dispute. The only question requiring consideration, therefore, is whether the appellant had caused the said injury. Kunwar Singh (P. W.8) is an eye-witness and had suffered injury in the incident. Rajaram (P. W. 5) is the person who had lodged the report (Ex. P/7). The other witnesses of the incident are Gopi Singh (P. W. 9) and Bharat (P. W. 12). Evidence of these witnesses had been examined in detail and had been found to be acceptable. Since this Court is in full agreement with the conclusion recorded by the learned Additional Sessions Judge, it is not considered necessary to examine the matter in any greater detail. Knuwar Singh being an injured witness, his presence cannot be doubted. From his evidence, it is clear that Rajaram. Gopi Singh and Bharat had also reached the spot along with him. Gopi Singh (P. W. 9) and Bharat ((P. W. 12) are independent witnesses and, therefore, there is no reason to doubt the correctness of their evidence. The question, whether the deceased Kaliram was an agressor and trespasser is also important as the appellant Bhulau is claiming possession of the land, where the incident took place, Evidence of Jamunbai (P. W. 11) in this regard is very important. She is the sister of the appellant, According to the appellant, he has purchased this land from Jamunbai, but Jamunbai (P. W. 11) had denied having sold the land to him. This takes out the bottom of appellant''s claim. Considering the relationship of Jamunbai with the appellant, there is no peason to discard her evidence. Under the circumstances, the learned Additional Sessions Judge made no mistake in holding that the appellant was an aggressor and a trespasser. In view of this evidence, which need not be examined in detail, the conviction of the appellant must he sustained. The sentence of 7 years R. I. is, in fact, lenient, in the context of facts and circumstances of the case and, therefore, there is no scope for interference.

Appeal fails and is dismissed. The appellant, who is on bail, is directed to appear before the C. J. M. Bilaspur on 15th December, 1993 to receive the judgment and undergo rest of his sentence, in accordance with law. In case the appellant fails to surrencer the C. J. M., Bilaspur will issue a non-bailable warrant against the appellant and secure his presence, to send him to jail for undergoing the sentence.