S.Sengkodi v. State of Tamil Nadu & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 18.3.2009CORAM:THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAOANDTHE HONOURABLE MR.JUSTICE R.SUBBIAHHabeas Corpus Petition No.142 of 2008S.Sengkodi... Petitioner Vs.1.State of Tamil Nadu, rep.by its Chief Secretary to Government, Fort St.George, Chennai-600009.2.The Superintendent of Police, 'Q' Branch, No.73, Natesan Salai, Chennai-600004.3.The Director General of Prisons, Chennai-600008.4.The Superintendent of Central Prison, Trichy5.State of Orissa, Rep.by the Superintendent of Police, Korapet, Orissa State... Respondents * * *Habeas Corpus Petition filed under Article 226 of theConstitution of India, praying to issue a Writ of Habeas Corpus, directing the respondents to produce the body and person of thepetitioner's client Sundaramoorthy S/o.Vediyappan, who is underthe illegal custody of the respondents before this HonourableCourt and set him at liberty forthwith.* * *For petitioner : Mr.R.SankarasubbuFor respondents: Mr.N.R.Elango, Addl.P.P.* * * https://hcservices.ecourts.gov.in/hcservices/ O R D E RELIPE DHARMA RAO, J.The petitioner is the practising advocate and she has filedthis petition seeking the release of her client Sundaramoorthy,S/o.Vediyappan, who is alleged to have been illegally detained bythe respondents.2. On behalf of the respondents, a strong objection regardingthe maintainability of this petition has been raised on the groundthat the Advocate engaged by the detenu, since cannot be called asa 'friend or relative' of the detenu and that the Advocate beingthe Officer of the Court, the petitioner, a practising Advocate, cannot enter into the shoes of her client and she cannot be asubstitute for her client. It has further been submitted on thepart of the respondents that the detenu is an under trial prisonerand he is in judicial custody in the cases, wherein he is anaccused and there is no illegal detention, as has been submittedon the part of the petitioner and would pray to dismiss thispetition.3. Prior to entering into discussion of other aspects of thecase, the legal question put forth on the part of the respondents, regarding the very maintainability of this petition, filed by thepetitioner, a practising advocate, on behalf of her client, needsto be discussed.4. The learned counsel for the petitioner would argue thatthe powers of the Court in matters of detention are very wide andanybody, who has a concern for the detenu, can file a HabeasCorpus Petition. Much has been argued and emphasised on the partof the petitioner that in the matters of Habeas Corpus, strictrules of pleading should not be followed and that such HabeasCorpus petition can be filed by anybody and therefore, thisHabeas Corpus Petition filed by the petitioner, a practisingadvocate, for the release of her client, is very wellmaintainable. In support of his arguments, the learned counselfor the petitioner would rely on a judgment of the HonourableSupreme Court in SMT.ICCHU DEVI CHORARIA vs. UNION OF INDIA ANDOTHERS [AIR 1980 SC 1983], wherein it has been held as follows:"In case of an application for a writ of habeas corpus, the practice evolved by Supreme Court is not to followstrict rules of pleading nor place undue emphasis on thequestion as to on whom the burden of proof lies. Even apostcard written by a detenu from jail has beensufficient to activise the Court into examining thelegality of detention. The Supreme Court has https://hcservices.ecourts.gov.in/hcservices/ consistently shown great anxiety for personal libertyand refused to throw out a petition merely on the groundthat it does not disclose a prima facie caseinvalidating the order of detention. Whenever apetition for a writ of habeas corpus has come up beforethe Supreme Court it has almost invariably issued a rulecalling upon the detaining authority to justify thedetention. Once the rule is issued it is the boundenduty of the Court to satisfy itself that all thesafeguards by the law have been scrupulously observedand the citizen is not deprived of his personal libertyotherwise than in accordance with law. Where largemasses of people are poor, illiterate and ignorant andaccess to the courts is not easy on account of lack offinancial resources, it would be most unreasonable toinsist that the petitioner should set out clearly andspecifically the grounds on which he challenges theorder of detention and make out a prima facie case insupport of those grounds before a rule is issued or tohold that the detaining authority should not be liableto do anything more than just meet the specific groundsof challenge put forward by the petitioner in thepetition. The burden of showing that the detention isin accordance with the procedure established by law hasalways been placed by the Court on the detainingauthority because Article 21 of the Constitutionprovides in clear and explicit terms that no one shallbe deprived of his life or personal liberty except inaccordance with procedure established by law."5. There cannot be any doubt regarding the above propositionlaid down by the Honourable Apex Court. It is no doubt a legalprinciple that not only the detenu but any friend or relative ofthe detenu can knock the doors of the Court under Article 226 ofthe Constitution, challenging his detention. In thesecircumstances, a question would arise as to 'whether an Advocateengaged by a client for some legal redressal, can enter into theshoes of the client substituting himself for the client and file apetition for the release of the client'. 6. In PRAVIN C.SHAH vs. K.A.MOHD.ALI [(2001) 8 SCC 650], theHonourable Apex Court has held:"The right to practise, is the genus of which the rightto appear and conduct cases in the court may be aspecie. But the right to appear and conduct cases inthe court is a mater on which the court must have themajor supervisory power. Hence the court cannot bedivested of the control or supervision of the courtmerely because it may involve the right of an advocate." https://hcservices.ecourts.gov.in/hcservices/

#7. In LINGAPPA POCHANNA APPELWAR vs. STATE OF MAHARASHTRA[(1985) 1 SCC 479], a Three Judge Bench of the Honourable ApexCourt has held as follows:"The only fundamental right recognised by theConstitution is that under Art.22(1) by which an accusedwho is arrested and detained in custody is entitled toconsult and be defended by a legal practitioner of hischoice. In all other matters i.e. in suits or otherproceedings in which the accused is not arrested anddetained on a criminal charge, the litigant has nofundamental right to be represented by a legalpractitioner. The Legislature in this case feels forgood reasons that for the implementation of thelegislation, it would not subserve the public interestif lawyers were allowed to appear, plead or act onbehalf of the non-tribal transferees...."Thus, a conjoint reading of the above judgments of the HonourableSupreme Court would make it clear that the machinery fordispensation of justice, according to law, is operated by thecourt. Proceedings inside the courts are always expected to beheld in a dignified and orderly manner. The advocate, indeed, isthe agent of the party. His acts and statements, made within thelimits of authority given to him, are the acts and statements ofthe principal i.e. the party who engaged him. Every legalpractitioner is an officer of the court and aids in the cause ofjustice. 8. At this juncture, we feel it apt to extract theobservations of the Honourable Apex Court in its Three Judge Benchjudgment in INDIAN COUNCIL OF LEGAL AID & ADVICE vs. BAR COUNCILOF INDIA [(1995) 1 SCC 732], regarding the duties of the BarCouncils, which read as follows:"The Bar Councils are enjoined with the duty to act assentinels of professional conduct and must ensure thatthe dignity and purity of the profession are in no wayundermined. Its job is to uphold the standards ofprofessional conduct and etiquette. Thus every StateBar Council and the Bar Council of India has a publicduty to perform, namely, to ensure that the monopoly ofpractice granted under the Act is not misused or abusedby a person who is enrolled as an advocate. Since theduty of a lawyer is to assist the court in theadministration of justice, the practice of law has apublic utility flavour and, therefore, he must strictlyand scrupulously abide by the Code of Conduct behovingthe noble profession and must not indulge in anyactivity which may tend to lower the image of theprofession in society." https://hcservices.ecourts.gov.in/hcservices/

#9. Thus, the Bar Councils are enjoined with the duty toensure the dignity and purity of the noble profession. TheAdvocates Act, 1961 has been enacted to amend and consolidate thelaw relating to legal practioners and to provide for theconstitution of Bar Councils and an All India Bar. Under Section7 of the Advocates Act, the functions of the Bar Council of Indiaare mandated, which includes to lay down standards of professionalconduct and etiquette for advocates. With the power flowing fromthe Advocates Act, the Bar Council of India has framed the BarCouncil of India Rules. Part-VI of the Bar Council of India Rulesdeal with 'Rules Governing Advocates'. Chapter-II of Part-VIprescribes 'standards of professional conduct and etiquette',wherein Rule 6 mandates:"An Advocate shall not enter appearance, act, plead orpractise in any way before a court, tribunal orAuthority mentioned in Section 30 of the Act, if thesole of any member thereof is related to the Advocate asfather, grandfather, son, grand son, uncle, brother, nephew, first cousin, husband, wife, mother, daguther, sister, aunt, niece, father-in-law, mother-in-law, son-in-law, brother-in-law, daughter-in-law or sister-in-law."10. Rule 9 mandates that 'an Advocate should not act or pleadin any manner in which he is himself peculiarly interested'. Rule18 mandates that 'an advocate shall not, at any time, be a partyto fomenting litigation'.11. Therefore, according to the above provisions of law, anAdvocate is barred from entering into appearance, act, plead orpractise if the sole of any member thereof is related to him andwherein he is peculiarly interested. When, to maintain thedecorum of the noble profession of advocacy, such a bar is createdon an Advocate, by operation of law, to appear, plead and act onbehalf of the blood relatives of the Advocate, we are unable toaccept the contention of the petitioner that she can file thispetition for the release of her client, thus acting herself as theclient. In the absence of any provision of law, permitting theAdvocates to enter into the shoes of their clients as a 'partyinterested' and further in the absence of any pleading made on thepart of the petitioner as to what necessitated her to enter intothe shoes of her client, when, admittedly, the detenu is havingblood relatives, like wife, to champaign his cause, we are not ina position to accept the plea of the petitioner that she can verywell maintain this petition. Further more, Section 30 of theAdvocates Act, 1961 permits the Advocates only to practise thenoble profession of law and not to substitute themselves for theirclients. When the Bar Council of India Rules, prescribing thestandards of professional conduct and etiquette do not permit such https://hcservices.ecourts.gov.in/hcservices/ an action on the part of a legal practitioner and in the absenceof any reason – leave alone a justifiable reason – for thepetitioner to file this petition on behalf of her client, it isto be held in no uncertain terms that this petition, filed by thepetitioner, a practising advocate, for the release of her client, is not maintainable. 12. Even by assuming, without accepting, that a practisingAdvocate can be permitted to enter into the shoes of his client, we have to keep in mind the consequences that will follow the suitif such acts are permitted to be performed by a practisingAdvocate. If such a situation is permitted, then, there may notbe any client-Advocate relation but only a client and defactoclient relationship between the party and his counsel, resultingin adversely affecting the dignity and decorum of the nobleprofession and further running contrary to the Standards ofProfessional conduct and etiquette, prescribed under the BarCouncil of India Rules, wherein Rule 9 contemplated that 'anAdvocate should not act or plead in any manner in which he ishimself peculiarly interested' and Rule 18 mandated that 'anadvocate shall not, at any time, be a party to fomentinglitigation'. If an Advocate is permitted to enter into the shoesof his client, definitely, he would become a person of 'peculiarlyinterested' and there is every possibility of his fomenting thelitigation, which is against Rules 9 and 18 of the Bar Council ofIndia Rules. Thus, viewing this legal aspect from this anglealso, we are not in a position to accept the plea urged on thepart of the petitioner that she can enter into the shoes of herclient. 13. In arriving at this decision, we garner support from ajudgment of the Honourable Apex Court in VINOY KUMAR vs. STATE OFU.P. AND OTHERS [2001 SCC (Cri) 806]. In the said case, aggrievedby the orders passed by the District and Sessions Judge, Varanasi, dated 13.2.2001, transferring a number of criminal casesfor disposal to the Additional District and Sessions Judge/SpecialJudge, the petitioner, Advocate, representing the accused personsin three of such transferred cases, filed a writ petition in theHigh Court praying for quashing of the said order. It wascontended that by the transfer of the cases, the speedy trial ofthe accused has been hampered and that the order has been passedin a casual manner. The said writ petition was dismissed by theHigh Court, holding that the petitioner being an Advocate had nolocus standi to challenge the legality of the order by way of awrit petition. Aggrieved, the said petitioner/Advocate approachedthe Supreme Court and the Supreme Court has held as follows:"Generally speaking, a person shall have no locus standito file a writ petition if he is not personally affected https://hcservices.ecourts.gov.in/hcservices/ by the impugned order or his fundamental rights haveneither been directly or substantially invaded nor isthere any imminent danger of such rights being invadedor his acquired interests have been violated ignoringthe applicable rules. The relief under Article 226 ofthe Constitution is based on the existence of a right infavour of the person invoking the jurisdiction. Theexception to the general rule is only in cases where thewrit applied for is a writ of habeas corpus or quowarranto or filed in public interest. It is a matter ofprudence, that the court confines the exercise of writjurisdiction to cases where legal wrong or legalinjuries are caused to a particular person or hisfundamental rights are violated, and not to entertaincases of individual wrong or injury at the instance ofthird party where there is an effective legal aidorganisation which can take care of such cases. Even incases filed in public interest, the court can exercisethe writ jurisdiction at the instance of a third partyonly when it is shown that the legal wrong or legalinjury or illegal burden is threatened and such personor determined class of persons is, by reason of poverty, helplessness or disability or socially or economicallydisadvantaged position, unable to approach the court forrelief.In the instant case the petitioner had not filedthe petition in public interest and did not disclose thecircumstances which prevented the affected persons fromapproaching the court. In the discharge of hisprofessional obligations, the petitioner Advocate is notobliged to file the writ petition on behalf of hisclients. No circumstance was mentioned in the petitionwhich allegedly incapacitated the affected persons fromfiling the writ petition. Section 30 of the AdvocatesAct only entitles an advocate to practise the professionof law and not to substitute himself for his client. The filing of the writ petition in his own name, beingnot a part of the professional obligation of theadvocate, the High Court was justified in dismissing thewrit petition holding that the petitioner had no locusstandi."14. Similar is the position with regard to the case on handalso. It is not a case filed in the interest of the public and nocircumstances which prevented the affected party or his friend orrelative from filing this petition have been explained by thepetitioner. At this juncture, it is also to be pointed out thatin the petition filed by the petitioner, no reason whatsoever hasbeen offered on the part of the petitioner to justify her action https://hcservices.ecourts.gov.in/hcservices/ in filing this petition for the release of her client. When wepointed out the same, she has come out with a written statementstating that she is a public spirited lawyer and duty counsel tothe detenu Sundaramurthy and therefore, she has filed thispetition. The detenu himself has also filed a supportiveaffidavit. When such is the position that the detenu is in aposition to file an affidavit before this Court, what preventedeither himself or his blood relatives or even his friends frominvoking the extraordinary jurisdiction of this Court underArticle 226 of the Constitution of India, has not at all beenexplained, throughout, on the part of the petitioner. Therefore, for all the above reasons and discussions, we have no hesitationto hold that the petitioner, a practising Advocate, has no locusstandi to file this petition, substituting herself for her clientand entering into the shoes of her client. Thus deciding thisissue of maintainability in favour of the respondents and holdingthat this petition filed by a practising Advocate for the releaseof her client is not maintainable, we shall now proceed to discussand decide the other aspects of the case urged and argued oneither side, so as to give a quietus to the entire issue on hand.15. It has been argued on the part of the petitioner that the procedure contemplated under the Criminal Procedure Code hasnot been followed, rather violated, by the respondents and thus, this petition is entitled to be allowed.16. From the materials placed on record it is seen that thedetenu Sundaramurthy was admitted into the Central Prison, Puzhal, Chennai on 11.7.2007, on the orders passed by the JudicialMagistrate No.1, Dharmapuri, in P.R.C.No.17/2001 for the offencespunishable under Section 25(1-b)(a) r/w.Section 3 of the Arms Act. The detenu was also remanded in eleven more cases under variousSections of law, including two cases under Section 302 IPC and twocases of 307 IPC. While this being the position, a PrisonersProduction Warrant in G.R.No.117-A/2004, dated 19.12.2007 wasissued by the Sub Divisional Magistrate, Korapet, Orissa State inconnection with Korapet Town P.S.Crime No.117-A/2004 for offencesunder Sections 147,148,302, 342, 396, 450, 427, 120(B), 109 and149 IPC r/w.Section 25(a) of the Arms Act based on which, thedetenu was taken to Korapet, Orissa and was also produced himbefore the concerned Court and thereafter, he was again handedover to the Central Prison No.1, Puzhal, Chennai on 27.7.2008.Thereafter, heeding to his request to permit him to visit hismother, who is not in a position to come over to Chennai from thenative place to call on him, the learned Special Judge, TADACourt, Chennai, by his order in Crl.M.P.No.32/2008 inC.C.No.6/1993 has permitted him to visit his native place on anyone of the days between 17.10.2008 and 24.10.2008. Accordingly, the detenu was taken to his village namely Ramiyampatti village, https://hcservices.ecourts.gov.in/hcservices/ Palakode Taluk, Dharmapuri District on 18.10.2008 and was admittedat Central Prison, Vellore for night halt on 18.10.2008 and on19.10.2008, he was taken to his native village and he met hismother and again on the night of 19.10.2008, he was halted atCentral Prison, Vellore and later, he was re-admitted at CentralPrison No.1, Puzhal, Chennai on 20.10.2008.17. In this entire process, we are unable to find any legalflaw committed on the part of the respondents, so as to brand hisarrest and production before the concerned Court as an illegalone. Further, all the procedures contemplated under Sections 78,79, 80 and 81 of the Code of Criminal Procedure, 1973, have beenscrupulously followed by the respondents. The detenu being anotorious criminal, having been involved in many cases, includingtwo murder cases, is being produced before various courts underwarrants issued by such courts, which is quite in conformity withthe legal provisions of law, provided under the Criminal ProcedureCode. On a scrupulous scrutiny of the entire materials placed onrecord, we are not able to find any material to affix our seal ofapproval to the contention of the petitioner that the detenu wasillegally taken into custody. Therefore, even on merits, thispetition fails and the same deserves only to be dismissed.18. Before parting with, we feel it apt to quote Rule 36 ofthe Chapter-II of Part-VI of the Bar Council of India Rules, whichreads as follows:"36. An advocate shall not solicit work or advertise, either directly or indirectly whether by circulars, advertisements, touts, personal communications, interviews not warranted by personal relations, furnishing or inspiring newspaper comments or producinghis photograph to be published in connection with casesin which he has been engaged or concerned. His sign-board or name plate should be reasonable size. Thesign-board or name plate or stationery should notindicate that he is or has been associated with anyperson or organisation or with any particular cause ormatter or that he specialises in any particular type ofwork or that he has been a Judge or an AdvocateGeneral."19. But, practically day in and day out we are able to seethat the said Rule is being given a simple go-bye by some legalpractitioners. When Rule 36 mandates that the sign-board ornameplate or stationery of the Advocate should not indicate thathe is or has been associated with any person or organisation orwith any particular cause or matter etc., it is rather paining tonote that some members of the noble profession are printing theirphotographs in the huge hoardings of the political leaders, https://hcservices.ecourts.gov.in/hcservices/ virtually at the feet of such political leaders, thus indicatingthat they are associated with such political leaders, further moreamounting to publicity, which is prohibited under Rule 36. Thisviolation of the mandatory provisions of the Bar Council of IndiaRules should be viewed seriously and the State Bar Councils shouldnot allow such practices to be carried and should come out withstrict action against such advocates, so as to maintain thedignity and decorum of the noble profession. Therefore, theChairman, Bar Council of Tamil Nadu, is directed to take all stepsto implement the Bar Council of India Rules strictly, in theirtrue letter and spirit, so as to uphold the dignity and decorum ofthe noble profession of advocacy. For all the above reasons, this Habeas Corpus petition isdismissed. RaoSd/Asst. Registrar/true copy/Sub Asst. RegistrarTo1.The Chief Secretary to the Government of Tamil Nadu, Fort St.George, Chennai-600009. 2.The Superintendent of Police, 'Q' Branch, No.73, Natesan Salai, Chennai-600004.3.The Director General of Prisons, Chennai-600008.4.The Superintendent of Central Prison, Trichy5.The Superintendent of Police, Korapet, Orissa State6.The Chairman, Bar Council of Tamil Nadu, Chennai-104.+ 1 cc to Mr. R. Sankarasubbu, Advocate SR No.8709Order in HCP.No.142 of 2008MRD(CO) SR/6.4.2009