@JUDGMENTTAG-ORDER
S. Rajeswaran, J.@mdashThis Civil Revision petition has been filed to issue direction for bearing the first and second respondents from proceeding with the enquiry in C.A. No. 44 and 50 of 2001 on the file of the Principal Sessions Judge, Chennai, assisted by the third respondent. The brief facts are as under:
The Revision petitioner herein has initially filed a Writ petition in W.P. No. 4379 of 2008, praying to issue a Writ of Mandamus, forbearing the respondents herein and also the State Government from proceeding with the enquiry in C.A. No. 44 and 50 of 2001 on the file of the Principal Sessions Judge, Chennai, assisted by the third respondent herein appearing on behalf of the first and second respondents herein.
2. When the Writ petition came up for admission on 20.02.2008, a learned Judge of this Court after hearing the arguments and going through the papers, permitted the Learned Counsel for the writ petitioner to move the matter before the appropriate court of jurisdiction and accordingly, directed the Registry to list the matter before the concerned court.
3. The Registry after obtaining the permission from the Hon''ble Chief Justice, converted the Writ petition filed in W.P. No. 4379 of 2008 as Civil Revision petition under Article 227 of the Constitution of India and posted the matter before the learned Judge who was dealing with that matter at that time. On 26.02.2008, this Court ordered notice in the Civil Revision petition and granted an order of interim stay. Notice was served on the respondents and all of them are before this Court now.
4. The case of the Revision petitioner is that the first respondent herein colluded with the second respondent and perpetrated various offences against her which includes abduction of her family members and extortion of her properties. A petition enquiry was conducted as per the directions of the State, but, the State did not grant necessary sanction to prosecute the first respondent as he was in service at that time. So, she took up the matter on her own and successfully prosecuted the first and second respondents in C.C. No. 10882 of 1991 on the file of the Chief Metropolitan Magistrate Court. The prosecution ended in conviction and sentence. Prior to the said prosecution, the second respondent herein filed W.M.P. No. 4208 and 4209 of 1990 in the Habeas Corpus petition filed by the Revision petitioner and obtained an order for enquiry into the allegations levelled by the Revision petitioner in the affidavit filed by her in the Habeas Corpus petition to find out whether they are perjury or not. Thereafter, the Civil Revision petitioner filed W.M.P. No. 23551 of 1991 and 23552 of 1991 in the very same Habeas Corpus petition, praying to recall the order passed by this Court, ordering enquiry. By order dated 9.12.1991, a Division Bench of this Court directed both Calendar case as well as the perjury enquiry to go side by side and to be heard simultaneously. After the conviction of the respondents 1 and 2 in C.C. No. 10882 of 1991, they have now filed Criminal Appeals No. 44 and 50 of 2001, which are pending on the file of the Principal Sessions Judge, Chennai.
5. It is the case of the Revision petitioner that in W.M.P. No. 23551 and 23552 of 1991 filed by her in the Habeas Corpus petition, the third respondent herein appeared on behalf of the state and she had to confide and instruct the third respondent to make submissions that would not run contra in so far as the petitioner''s and State''s submissions are concerned. Now, it is her grievance that the third respondent is appearing against her in C.A. No. 44 and 50 of 2001, which is highly unjust and therefore, she has filed the above C.R.P. challenging the action of the respondents 1 and 2 from proceeding with the enquiry in C.A. Nos. 44 and 50 of 1991 assisted by the third respondent herein.
6. To the affidavit filed in support of the said petition, a counter affidavit has been filed by the third respondent stating that the Habeas Corpus petition in W.P. No. 539 of 1989 was filed in the year 1989 and he was not the Additional Public Prosecutor at that time. The Writ petition was withdrawn by the petitioner as not pressed, on 26.02.1989 and thus the whole proceeding came to an end even before he became the Additional Public Prosecutor. It is admitted by the third respondent that W.M.P. No. 4208 and 4209 of 1990 were filed by the second respondent, but, even at that time when the matter was heard, he was not the Additional Public prosecutor. A Division Bench of this Court by order dated 5.7.1991 directed to hold an enquiry within six months to the effect whether the averments contained in the affidavit filed in support of W.P. No. 539 of 1989 filed by the Revision petitioner herein are false or not and even at that stage he was not the Additional Public Prosecutor. When the Revision petitioner filed W.M.P. No. 23551 of 1991 and 23552 of 1991 to recall the orders already passed in W.M.P. No. 4208 and 4209 of 1991, he was the Additional Public Prosecutor and he represented the state in those two petitions filed by the Revision petitioner. It is pointed out by the third respondent that a consent order only was passed by the Division Bench in the recall order petitions filed by the Revision petitioner. It is further stated by the third respondent that he did not appear in C.C. No. 10882 of 1991 also. The appeals in C.A. No. 44 and 50 of 2001 were filed by the respondents and the third respondent has been appearing in the appeals from 2004 onwards only. According to the third respondent, right from 2004, he has been appearing before the Principal Sessions Judge and in fact, in the year 2007, he filed M.P. No. 6449 of 2007 on behalf of the appellants under Sec. 391 of C.P.C to mark the additional document. The said petition was allowed and the additional document was also marked as an exhibit. Even at that time, no objection was raised by the revision petitioner against his appearance on behalf of the respondents 1 and 2 herein. Thereafter, the appeal was argued before the then Principal Sessions Judge and written arguments were also submitted. No objections were raised by the revision petitioner against his arguing the appeals and filing the written statement. Thereafter, the then Principal Sessions Judge was elevated as a High Court Judge and when the appeal was posted before the present Principal Sessions Judge, instead of arguing the matter the revision petitioner filed Crl.O.P. No. 2881 of 2008, but the same was dismissed by this Court by giving a direction to the Principal Sessions Judge to dispose of the appeals within two months. But, the revision petitioner has filed the above petition to prolong the matter further due to reasons best known to her. The main contention of the third respondent is that, the scope of Habeas Corpus petition is very limited and it has nothing to do with a criminal offence. In that Habeas Corpus petition, that too, in the Miscellaneous petition alone, he appeared for one of the respondents, Thiru Pattuswamy, Deputy Superintendent of Police, who represented the State. Therefore, the objections raised now by the Civil Revision petitioner after 16 years is unjustified and it is a mischief played by the revision petitioner. According to the third respondent, the Civil Revision petition is an abuse of process which is not maintainable at all. Hence, he prayed for the dismissal of the Civil Revision petition.
7. A reply affidavit has been filed by the revision petitioner to the counter affidavit filed by the third respondent. A supplemental affidavit was also filed by the revision petitioner, for which also, a reply has been filed by the third respondent. Both the revision petitioner and the third respondent have taken the very same stand in the affidavit and counter affidavits filed by them.
8. I have heard the Learned Counsel appearing for the revision petitioner, Thiru R. Shanmugam, the learned Senior counsel for the first respondent and Thiru N. Thiagarajan, the learned Senior counsel for the second respondent and the third respondent who appeared as a party in person. I have also gone through all the documents and judgments filed in support of their submissions.
9. A pleathora of judgments were relied on by all the counsel in support of their submissions and I am not referring to all, as the law has been well settled in respect of the issues involved in this case. Hence, I am referring to only a few of the judgments, which, I feel, are necessary to dispose of this Civil Revision petition.
10. The Learned Counsel for the petitioner submits that having appeared for the State, in the miscellaneous petitions, filed in W.P. No. 539 of 1989, it is unjust on the part of the third respondent to appear for the appellants in C.A. No. 44 and 50 of 2001. It is pointed out by the Learned Counsel for the petitioner that in W.P. No. 539 of 1989, the revision petitioner prayed for issuing a Writ of Habeas Corpus directing the respondents therein to produce the body of her mother, sister and other family members and set them at liberty. She accused both the third and fourth respondents in that Habeas Corpus petition. The 4th respondent in the Habeas Corpus petition is the second respondent in this Civil Revision petition and the third respondent in the Habeas Corpus petition is the first respondent before this Court.
11. He further submitted that the third respondent was the Assistant Public Prosecutor on behalf of the respondents 2 to 4 therein when orders were passed by this Court in the Miscellaneous petitions on 9.12.1991. In such circumstances, according to the Learned Counsel for the petitioner, the third respondent ought not to have accepted the appeals filed by the respondents 1 and 2 herein after being convicted by the trial court at the instance of the revision petitioner. The Learned Counsel has placed his reliance on the judgment of this Court reported in AIR 1958 MDS 511 (Collector of South Arcot, Cuddalore Vs An Advocate, Cuddalore), apart from relying on the judgments reported in AIR 1939 Rangoon 183 (Tajendra Chandra Dhar and others Vs Tajendra Lal Ghosh and others) and
12. Per contra, the learned Senior counsel for the first respondent and the learned Senior counsel for the second respondent questioned the maintainability of the Civil Revision petition itself. According to them, this Civil Revision petition is not maintainable as the prayer is to prevent the third respondent appearing on behalf of the respondents 1 and 2. According to them, if at all the petitioner is aggrieved by the third respondent''s appearance in the appeals, the remedy available to her is to go before the Bar Council and she cannot maintain this Civil Revision petition. Both the learned Senior counsel pointed out that the third respondent has been appearing in the appeals since 2004 and therefore, objecting to his appearance at this point of time cannot be sustained on the ground of latches and acquiescence. It is their further contention that the petition itself is an abuse of process, especially, after this Court directed the Principal Sessions Judge, to dispose of the C.A. No. 44 of 2001 within a period of two months in the Crl.O.P. No. 2881 of 2008 filed by the revision petitioner under Sec. 407 of Criminal Procedure Code.
13. The third respondent has vehemently contended that he never appeared in the Habeas Corpus petition or in the Calender Case and he has just appeared for the State as an Additional Public Prosecutor in the Miscellaneous petitions filed by the revision petitioner in the Habeas Corpus petition. He was never in a position to go through the facts and other documents of the Criminal case and he was in fact not at all engaged in the criminal case initiated against the respondents 1 and 2 at the instance of the revision petitioner. Therefore, according to the third respondent, there is no bar whatsoever for appearing on behalf of the respondents 1 and 2. He also questioned the maintainability of the Civil Revision petition and argued against the revision petitioner on the ground of latches and promissory estoppel. He relied on the decision of the Karnataka High Court reported in AIR 2001 Kar 498 (M.B. Bulchand and others Vs The Presiding Officer, The Court of the Addl. City Civil Judge) to submit that there is nothing wrong in appearing for the respondents 1 and 2 and the revision petitioner cannot object to his participation in the appeal proceedings having kept quiet for the past four years.
14. The Learned Counsel for the petitioner replied to the arguments of the learned Senior counsel for the respondents 1 and 2 and to the arguments of the third respondent who appeared as a Party in Person. He submitted that the Civil Revision petition is very much maintainable under Article 227 of the Constitution of India and further submitted that the remedies sought for in the Civil Revision petition is not hit by latches as the appeal now is to be argued afresh before the present Principal Sessions Judge. He wound up his arguments by submitting that to keep up the highest tradition of the noble profession, the third respondent is to be restrained from appearing for the respondents 1 and 2.
15. I have considered the rival submissions carefully with regard to the facts and citations.
16. The following facts are not in dispute.
The revision petitioner filed a Habeas Corpus petition in W.P. No. 539 of 1989 before this Court praying for a writ of Habeas Corpus to produce her mother, her sister and her children before this Court and set them at liberty. In that Writ petition, Thiru Venugopala Raju, the then Deputy Superintendent of Police, the first respondent herein, filed a counter affidavit and denied the allegations. The said writ petition was dismissed as withdrawn on 22.6.1989. It is not in dispute that the third respondent was not Additional Public Prosecutor at that time. It is also not in dispute that Thiru Balasubramaniam, the second respondent herein, who is the 4th respondent in W.P. No. 539 of 1989 filed a Writ Miscellaneous petition No. 4208 of 1990 to direct Thiru K. Pattuswamy, the then Deputy Superintendent of Police, Crime branch to produce his enquiry report along with other reports before this Court. He also filed W.M.P. No. 4209 of 1990 seeking permission of this Court to proceed against the Civil Revision petitioner under Sec. 199 I.P.C. this Court, by a common order dated 15.7.1991 directed that an enquiry should be conducted by the Chief Metropolitan Magistrate to find out the falsity or otherwise made by the revision petitioner in the affidavit filed in support of W.P. No. 539 of 1989. The Chief Metropolitan Magistrate directed Thiru K. Pattuswamy, the then Deputy Superintendent of Police to produce the xerox copies of all the records available in the case before him and to furnish a set of copies to the second respondent herein. Accordingly, Thiru Pattuswamy produced all the relevant records to the Chief Metropolitan Magistrate, Egmore. Similarly, copies were also furnished to the second respondent herein.
17. The Civil Revision petitioner gave a petition to the State Government, making serious allegations against the respondents 1 and 2 herein, on 27.12.1988. The Government directed the Inspector General of Police, Crime, to make a confidential enquiry and to submit a report. The matter was entrusted to Mr. K. Pattuswamy to make a detailed enquiry and to submit his report. After receiving the papers, Thiru Pattuswamy examined sixteen persons in the case. The second respondent herein also gave a statement before the then Deputy Superintendent of Police, on 19.7.1989, after the writ petition in W.P. No. 539 of 1989 was filed by the revision petitioner.
18. Thiru K. Patuswamy filed a counter affidavit in W.M.P. No. 4208 and 4209 of 1990. It is stated by him in the counter that his enquiries revealed that Thiru Venugopal Raju, the then Deputy Superintendent of Police, C.B. C.I.D., the first respondent herein and Thiru Balasubramaniam, the second respondent herein indulged themselves in the illegal way and on 9.5.1988 an agreement of sale had been executed by the second respondent herein as a General Power of Attorney of Thiru Abdullah, the husband of the revision petitioner, in favour of his son, Thiru Senthilkumar for a sale to the tune of Rs. 4.5 lakhs, in which, he had agreed to sell four items of immovable properties belonging to Thiru T. Abdullah. The alleged purchaser is only the son of the second respondent herein, and the second respondent herein was not able to explain in his examination as to how his son at about 19 years of age was able to get 4.5 lakhs to pay the advance amount. Therefore, according to Thiru K. Pattuswamy, the transactions were said to be suspicious. He further stated in the counter affidavit that, his enquiry revealed that the writ petitioner and her husband were watched by three Constables as per the instructions of the first respondent herein and the three Constables were also instructed not to allow the Civil Revision petitioner and her husband to go out of room No. 14A in the Admiralty Hotel. It is further stated that for initiating a criminal case to settle an unrelated Civil dispute and for detaining the revision petitioner and her husband illegally orders were issued to take the departmental action against the first respondent herein.
19. The Civil Revision petitioner approached the Government to get sanction to permit her to file a criminal complaint against the first respondent herein and the Government by order dated 25.9.1991 accorded sanction to the Civil Revision petitioner to proceed further. Based on the sanction accorded by the Government, the revision petitioner filed a criminal complaint before the Additional Chief Metropolitan Magistrate under Sec. 167, 344, 347, 365, 369 and 384 I.P.C. Therefore, according to Thiru K. Pattuswamy, since a criminal complaint has been filed by the revision petitioner, the enquiry by the Chief Metropolitan Magistrate is not required. Hence, in the affidavit filed in W.M.P. No. 4208 and 4209 of 1990, Thiru K. Pattuswamy prayed for the withdrawal of the common order passed in W.M.P. No. 4208 and 4209 of 1990.
20. The Civil Revision petitioner herein has also filed a counter affidavit in W.M.P. No. 4208 of 1990 and 4209 of 1990 wherein she stated that a false case was registered by the then Deputy Superintendent of Police, the second respondent herein in Crime No. 7 of 1998 and he took the revision petitioner and her husband under custody on 28.03.1990 and they were detained at various hotels from the date of the custody till the date of remand. It is further stated by her that the first respondent and the second respondent herein forced her husband and herself to sign several blank papers and vakalat. The second respondent coerced her husband to register a sale agreement and power of attorney in favour of his son and himself to sell her husband''s properties. Therefore, he also prayed for the dismissal of the W.M.P. No. 4208 and 4209 of 1990.
21. From the above two affidavits, it could be seen that the allegations raised by the revision petitioner against the respondents 1 and 2 in the Habeas Corpus petition were enquired into by Thiru K. Pattuswamy and his counter affidavit filed after conducting an enquiry will show that the sale agreement was found to be suspicious and the first respondent took the services of three Constables and instructed them not to allow the revision petitioner and her husband to come out of the room in a hotel. Therefore, to that extent the stand of the revision petitioner and the State are in consonance with each other. It is also not in dispute that the third respondent was not at all in the picture during this period as he was not a Public Prosecutor at that time.
22. Admittedly, in the year 1991, the revision petitioner filed W.M.P. No. 23551 and 23552/1991 in W.M.P. No. 4208 and 4209 of 1990 in W.P. No. 539 of 1989 praying to recall the direction issued to the Chief Metropolitan Magistrate in W.M.P. No. 4208 and 4209 of 1990. It is stated by the revision petitioner that her affidavit filed in support of the Habeas Corpus petition are true and bonafide and her private complaint was also based upon the same set of facts. this Court by order dated 9.12.1991 passed a consent order. this Court ordered that in order to avoid multiplicity of the proceedings, the Chief Metropolitan Magistrate is directed to withdraw that complaint to his file and to try that complaint along with enquiry, regarding which, findings are called for, and dispose of the same simultaneously after giving opportunity to both the parties to adduce evidence. When this order was passed by the Division Bench of this Court on 9.12.1991, admittedly the third respondent was the Additional Public Prosecutor and he appeared on behalf of the Secretary, Home Department, the Superintendent of Police, Nagapattinam and the Deputy Superintendent of Police, C.B. C.I.D.
23. The main contention of the Revision petitioner is that when the matter was disposed of by the Division Bench on 9.12.1991, the State was toeing her line and therefore to avoid any inconsistencies between her case and the case of the State, she consulted the third respondent as Additional Public prosecutor and the A.P.P. who has appeared against the respondents 1 and 2 at that time, could not now appear against the State in favour of the respondents 1 and 2 in the criminal appeal. This was resisted by the third respondent by contending that he had nothing to do with the criminal case and he only appeared in the miscellaneous petition, in the Habeas Corpus petition which was already disposed of even before his appointment as Additional Public Prosecutor. He further submitted that he had no role to play even in the proceedings before the court on 9.12.1991, as the order passed by this Court was a consent order.
24. In the light of the above facts and circumstances, can it be said that the third respondent is not justified in appearing for the respondents 1 and 2 in the criminal appeals filed against their conviction is the question to be answered by this Court.
25. In AIR 1939 Rangoon 183 (cited supra), it was held that a Legal Practitioner who has acted for one party in a dispute should not be allowed to act for another party in a subsequent litigation between them relating to or arising out of that dispute. The relevant portion of the order reads as under:
It is clear from two decided authorities, 8 Rang 44 at p.47 and 8 Rang 446 at p.447, that an advocate or pleader who has appeared on behalf of one party in a suit ought not to allow himself to be placed in the position in which there might be some suspicious, whether well or ill founded, that his knowledge of his client''s case would be used by him on a subsequent occasion in appearing for another party and against his original client; and in both cases a quotation was made from the judgment of their Lordships of the Privy Council in 21 C.W.N 1137 at p. 1142 which it is perhaps desirable to repeat here:
Their Lordships must express their complete assent to the observations of learned Judges of the High Court on the impropriety of a legal practitioner who has acted for one party in a dispute, such as there was in the case, acting for the other party in subsequent litigation between them relating to or arising out of that dispute. Such conduct is, to say the least of it, open to misconception, and is likely to raise suspicion in the mind of the original client and to embitter the subsequent litigation.
That was the position before the learned District Judge and we are satisfied that in the exercise of his discretion, although it is not for us to say whether we should have arrived at the same conclusion speaking for myself. I think I might very well have done so it was open for him to say that it was undesirable for Mr. Guha to continue to represent the party whom he claimed to represent and having arrived at this conclusion bonafide and given effect to it, we consider upon the authorities already cited that there are no grounds to interfere in revision. This application must accordingly be dismissed with costs 10 gold mohours.
26. In AIR 1958 MDS 511 (cited supra), a Full Bench of this Court held that whether the question is viewed merely on the basis of a contract of services or from the higher standard of professional morality, it is improper for an advocate who held the office of a Public prosecutor or was engaged as a Special Public Prosecutor to accept an engagement for the defence in a case, in which, at an earlier stage, he advised or gave an opinion to the prosecution or appeared on behalf of the prosecution at the stage of interlocutory application like applications for bail, etc. The following passage from the judgment is very relevant and the same is extracted below:
But we find however that the respondent is guilty of improper conduct in having taken up engagement on behalf of the accused in the cases in which he, as Public Prosecutor, gave an opinion or appeared at the time of the bail applications on behalf of the prosecution. Whatever may be the position in civil cases, we are of the view that an advocate who has given an opinion for one side in a criminal case should not accept an engagement at subsequent stages of the case for the opposite side.
That employment places him in a position of confidence and imposes on him a duty not to use the information so gained, unwittingly or otherwise to the detriment of his client. That duty continues even after the relationship of advocate and client has ceased, and therefore this prohibition cannot be made to depend on the fact whether the party engages him in the subsequent stages of the case or not. Higher interests of the administration of justice and the preservation of the noble traditions of the bar, of which he is a member, should dictate him to reject the preferred brief for the other side. The question of propriety cannot depend upon the existence of any confidential communication.
Indeed it would not be possible to investigate whether in fact there was confidential communication or not, having regard to the provisions of S. 126 of the Indian Evidence Act. The office of a Public Prosecutor is one of considerable prestige and responsibility, and nothing should be allowed to be done which would have the effect of imparing the confidential advice which he is often called upon to give or of undermining the confidence of the public in the purity of Criminal Law administration. Such offices carry with them a retaining fee.
But whether the question is viewed merely on the basis of a contract of service or from the higher standards of professional morality, which in our opinion should be the guiding principle, it is improper for an advocate who held the office of a Public Prosecutor or was engaged as a special Public Prosecutor to accept an engagement for the defence in a case in which at an earlier stage he advised or gave an opinion to the prosecution or appeared on behalf of the prosecution at the stage of interlocutory applications like applications for bail, etc.
27. In
In this sense, a Public prosecutor who has merely filed a memo in a criminal case without taking any further steps in the matter, cannot be precluded from appearing in all those cases for the opposite party after he ceased to be the Public prosecutor, because he has not in fact appeared on behalf of the Government or taken any steps or done anything and there is nothing either contractual or otherwise from a professional point of view to preclude him from appearing for the opposite party in such cases.
(6) The considerations which may weigh in determining whether a Public Prosecutor can appear for the opposite party after he ceased to be so in cases in which he has done something in furtherance of the prosecution of the cases, such as where he has information or perused the records including the case diaries or has appeared and argued the case partly, are different to those in the first category of cases where he has done nothing; but merely filed a memo of appearance.
In civil cases, Rule 20 of the Civil Rules of Business clearly lays down the circumstances in which a pleader may or may not act for the opposite party. It says "that except when specially authorised by the Court or by the consent of the party, a pleader who has advised in connection with the institution of a suit, appeal or other proceeding or has drawn pleadings in connection with any such matter, or has during the progress of any such suit, appeal or other proceeding, acted for a party, shall not, unless, he first gives the party for whom he had advised, drawn pleadings or acted, an opportunity of engaging his services, appear in such suit, appeal or other proceedings, or in any appeal, or application for revision arising therefrom or in any matter connected therewith for any other proceeding without offering an engagement to the pleader whose services he originally engaged. Explanation - Notwithstanding anything hereinbefore contained, a practitioner who discloses to one client the information confided too him his capacity as the legal practitioner of another client without the latter''s consent, shall not be protected merely by reason of his being permitted to appear for the other client under this rule.
(7) There is no such rule governing criminal cases, nor any rules have been made under the Cr.P.C. Even in the Civil Rules of Business, though the advocate can appear with the consent of the party or where he is specially authorised by the court, he cannot and is not deemed to have been authorised to disclose to the opposite party information confided to him or which he obtains in that case. Sec. 126 of the Indian Evidence Act. Bars such communication, whether it is in civil cases or criminal cases unless it is with the express consent of his client.
Shri Rama Rao says that between the Public Prosecutor and the State there can be nothing confidential which can be used against the State and his order of appointment is purely contractual, viz., till the attainment of 60 years or for 5 years as the case may be; that the post carried a general retainer of Rs. 400/- per month and a special retainer of Rs. 30/- that even in such cases where he is entitled to get fees, the Public Prosecutor has no right to appear unless the State appoints him and that the State can always appoint a Special Prosecutor even though there may be a Public Prosecutor.
On the analogy of Rule 20 of the Civil Rules of Practice, he further contends that because a contract is for a limited period, once mat comes to an end, the Public Prosecutor becomes released from his engagement to appear for any other party unless the State is prepared to appoint him in such a case, as they do not want him to appear on the other side; that in the absence of the State continuing him, he can appear in such of those cases whether he has done something in furtherance of the prosecution or not, against the State, and at any rate, the mere appointment of another Public Prosecutor amounts to a contractual release such as the one envisaged in Rule 20 of the Civil Rules of Business.
These contentions, if accepted, in so far as they relate to criminal cases, would, in our view, lead to startling results and would bring down the professional ethics from the highest pedestal, which are and always been the desideratum, to the lowest ebb, because it would not only not take into account the imparting of confidential information which is expected under sec. 126 of the Indian Evidence Act, but also the embarrassment which it may cause to the lawyer in appearing for both sides at some stage or the other and the justifiable suspicion and apprehension that may be created in the mind of his erstwhile client.
All these considerations ought to weigh in deterring an advocate from appearing for the opposite party. In our view the general principle precluding an advocate appearing for one party, from appearing for the opposite party, apart from any contractual inhibition, is one of public policy based on maintaining public confidence and the highest traditions of the Bar. This rule has been stated in Halsbury''s Laws of England Vol.3 (Lord Simond''s edition) page 47, para 68, thus:
Counsel ought not to accept a brief against a party, even though the party refuse to retain him, in any case in which he would be embarrassed in the discharge of his duty by reason of confidence reposed in him by that party.
Shri B.V. Rama Rao contends that no confidential information was imparted to him and that he merely perused a public copy of the judgment when he advised the Government to file an appeal against acquittal. Whether confidential information has been imparted or not would be a question of fact. It may, in certain cases, be the very antethesis of the privilage afforded under sec. 126 of the Indian Evidence Act to embark on an enquiry which necessarily must elicit the information which the Court considers to be confidential and a protected privilege.
Even where only the circumstances and the matters pertaining to which the alleged confidential information has been imparted is disclosed, it may be found necessary to elicit the nature of that information to test the veracity or otherwise of the witness story and to determine whether the information was of a confidential nature. In order to prevent an advocate from appearing for the opposite party, what we have to see is whether in the circumstances of a particular case, having regard to the steps taken in the litigation or criminal proceedings, it can be reasonably inferred that confidential information could have been imparted. In the case of Earl Chomondeley Vs. Lord Clinton, (1815) 19 Ves Jun 261 at p. 266 the Lord Chancellor said,
If there is any ground for this application, either as a motion in the cause or upon the general jurisdiction, it must be furnished by a general principle, not the particular circumstances of the case; otherwise the court must try every such case on its particular circumstances and it cannot be so discussed without a disclosure from the solicitor of all he knows.
But even where circumstances exist from which a reasonable inference can be raised that confidential information could have been imparted that would, in our view, preclude an advocate from appearing for the opposite party, not on the ground of professional misconduct, but as an improper conduct for an advocate maintaining the highest traditions of the Bar to adopt. We, therefore, did not agree with the learned advocate that only in such cases where he is liable under the professional misconduct can be prevented from appearing for the opposite party.
Even apart from any contractual obligation, the court will, in the exercise of their power, to maintain the highest traditions of the Bar and the profession, preclude advocates from appearing for the opposite party, if that is likely to embarrass the advocate or raise a suspicion in the mind of the client with respect to the conduct of his erstwhile advocate or that it is not gentlemanly conduct or that it is improper to do so, or the circumstances are such from which an inference of imparting of confidential nature of information can be raised.
This is not only so with respect to the advocates, but where advocates have been raised to the Bench, they have voluntarily in the best traditions of the Bar declined to hear cases in which they have been engaged and appeared prior to their elevation. The law in England is also the same and has been stated in Halsbury''s Laws of England (Simond''s edition) vol.3 page 48:
If counsel who has advised on or been engaged in a case is raised to the Bench, and the same case comes before him, the practice is for him to refuse to adjudicate on it.
28. In 2000(1) L.W. 132 (cited supra), this Court held that legal profession is considered to be a noble profession and if an advocate is allowed to give advice to one party and to appear for the opposite party in court, the confidence reposed on him will be lost and his conduct will amount to prostitution of profession. The relevant para reads as under:
9. The relationship between advocate and client is based only on confidence and trust. Legal profession is considered to be a noble profession and if an advocate is allowed to give advice to one party and appear for the opposite party in court, the confidence reposed on him will be lost and his conduct will amount to prostitution of profession. Counsel appearing for one party is not expected to place both his party and opposite party and if he does so, it will amount to professional misconduct and breach of trust.
10. I do not want to further discuss the matter since Sri. Senthilnathan himself submitted before me that he will not appear in this case hereafter and that he is withdrawing from the case. He also agreed to revoke the Vakalat. The said submission is recorded.
29. Citing the above judgments, the Learned Counsel for the petitioner submitted that considering the highest tradition that should be maintained in the advocate profession, the appearance of the third respondent on behalf of the respondents 1 and 2 in the criminal appeals are undesirable if not illegal and misconduct.
30. I find force in the submissions of the Learned Counsel for the revision petitioner.
31. I am not going into the question whether the third respondent was in a position to go through the records with respect to the criminal case filed by the revision petitioner. Even assuming that the third respondent has no role to play inspite of his appearance in the Miscellaneous petition filed by the revision petitioner in the Habeas Corpus petition, still I am of the considered view that professional morality and public policy should be the guiding principle, and if these are the guiding principles, then it is improper for the third respondent to appear for the respondents 1 and 2 in the criminal appeals filed by them against their conviction.
32. Certainly, there is no misconduct on the part of the third respondent and I am not approaching the issue involved in this revision petition from the angle of misconduct. Legal profession is a noble profession and there should not be any room for suspicion or doubt in the minds of the public when a Public Prosecutor after his tenure was over is appearing for the accused in the very same dispute. The question to be asked is whether he could have gone into the case file and whether he was in a position to elicit any information from the prosecution rather than whether he actually went through the file or elicited information from the prosecution. So, if appreciated from this angle, it can be reasonably inferred that the third-respondent was certainly in a position to go through the case files when he was the State''s Public Prosecutor appearing in the Miscellaneous petition filed in the Habeas Corpus petition.
33. Lawyers have to maintain the highest traditions of the Bar and the legal profession. They themselves should preclude from appearing for the opposite parties if that is likely to embarrass the advocates or raise a suspicion in the minds of the clients with respect to the conduct of his erstwhile advocate or that it is not gentlemanly conduct or it is improper to do so as held by the Division Bench of the Andhra Pradesh High Court reported in 1961 A.P. 105 (cited supra).
34. Therefore, in the light of the peculiar facts and circumstances of the case, I am to necessarily hold that the appearance of the third respondent for the respondents 1 and 2 herein is not desirable and I am confident that the third respondent himself will understand the true spirit of this order and will withdraw his appearance on behalf of the respondents 1 and 2 before the Principal Sessions Judge in C.A. No. 44 and 50 of 2001.
35. In the judgment relied on by the third respondent in AIR 2001 KAR 498 (cited supra), it is held an advocate empanelled for one nationalised bank can appear against another nationalised bank and it is not violative of any code of conduct. Even in the above judgment, the Karnataka High Court observed that it is improper for a legal practitioner who has acted for one party in a dispute and acting for the other party in the subsequent litigation between them relating to or arising out of that dispute and such conduct is open to misconception and is likely to raise suspicion in the minds of the original client and to embitter the subsequent litigation. The relevant portion reads as under:
14. Yet another reason the impugned order is liable to be quashed is, when once the finding is given to the effect that there is no express bar in the law, the respondent ought not to have observed that the professional ethics requires an advocate not to appear for and against the same corporation or association. Such an approach is not at all permissible nor sustainable in the eye of law. There is no prohibition for an advocate acting for one party in one litigation and he should not act for the other in another petition arising out of the same dispute. In such circumstances, it is improper for a legal practitioner who has acted for one party in a dispute and acting for other party in subsequent litigation between them relating to or arising out of that dispute. Such conduct is open to mis-conception and is likely to raise suspicion in the mind of the original client and to embitter the subsequent litigation. And this is a matter which concerns the honour of the profession. But in the instant case, the facts reveal that third petitioner has not appeared or acted for the opposite party, neither the plaintiff nor his counsel raised objection regarding defending the case of the petitioners 1 and 2 by third petitioner. In such circumstances, much credibility cannot be attached to the finding given by the respondent. Hence, the impugned order is liable to be quashed.
36. From the above, it is very clear that the judgment is not at all helpful to the case of the third respondent and even otherwise to uphold the diginity, majesty of the legal profession and its nobility, it is better for the third respondent to recluse himself on his own to keep up the highest tradition of the Bar and the legal profession.
37. Now, let me consider the question of maintainability and latches on which lengthy arguments were advanced by all the counsel by citing humpteen number of judgments.
38. There is no controversy with regard to the judgments cited on behalf of the parties that when there is an alternative remedy, the courts will not entertain the petitions filed under Article 226 and 227 of Constitution of India. Further, it is settled law that, if a person is guilty of latches, then that could be put against him in a petition filed under Article 226 and 227 of the Constitution of India. But, there is no hard and fast rule in this regard and each case is to be considered on its own merits and on the basis of its facts and circumstances. There are a lot of exceptions to the general rule and inspite of having an alternative remedy and inspite of guilty of latches, still courts can entertain petitions under Article 226 and 227 of the Constitution of India to render complete and fair justice. Of course, only in extraordinary circumstances and in exceptional cases, the courts will entertain such petitions filed under Article 226 and 227 of the Constitution of India, but, it cannot be said that no petition is maintainable because of the alternative remedy is available and a petition should be dismissed in limini because of latches. It all depends on the facts and circumstances of each case.
39. Admittedly, in this case, the third respondent is appearing on behalf of the respondents 1 and 2 for the past four years, but the revision petitioner has approached this Court only now. It is also an admitted fact that after the appeals are argued on merits before the then Principal Sessions Judge, orders were not passed as he was elevated as a High Court Judge. Now, the matter is to be argued afresh before the present Principal Sessions Judge. In such circumstances, I do not want to reject the Civil Revision petition on the ground of latches and promissory estoppel.
40. Though attempts were made on behalf of all the respondents herein to contend that this Civil Revision petition is hit by the doctrine of resjudicata in view of the order passed by this Court in Crl.O.P. No. 2881 of 2008 on 22.02.2008, I find no merits in the above submissions as the Crl.O.P. No. 2881 of 2008 has been filed by the revision petitioner under sec. 407 Criminal Procedure Code seeking withdrawal of Crl.A. No. 44 of 2001 from the file of the Principal Sessions Judge on the ground that some question of law of unusual difficulty has arisen in the appeal. this Court by order dated 22.02.2008 observed that the major questions of law arising in the appeal could be very well decided by the Appellate Court itself and therefore, directed the Principal Sessions Judge to dispose of the appeal within a period of two months. I do not accept the contention that this order will act as a res judicata for the present Civil Revision petition filed by the petitioner. In the result, the above Civil Revision petition is allowed in the above terms. No costs. Connected Miscellaneous petition is closed.
