R.R. Prasad, J.@mdashLearned Sessions Judge, Jamtara while was in seisin of a case bearing Sessions Trial No. 76 of 2009 in which accused
Manjuda Mahali was facing charge u/s 376 of the Indian Penal Code, fixed it for evidence on 14.12.2009 on which date, prosecution witness put
his attendance but neither the accused, who was on bail appeared before the court nor his Advocate, namely, Bibhuti Bhushan Singh did appear
and as such, bail bond of the accused was cancelled and at the same time, defence counsel Sri Bibhuti Bhushan Singh was debarred from doing
pairvi for the said accused. It was further ordered that: bail application filed on behalf of the accused would only be entertained if it is filed by
another Advocate and not by Mr. Bibhuti Bhushan Singh.
2. Subsequently, learned Sessions Judge transferred the case before the 5th Additional Sessions Judge-cum- F.T.C. Jamtara. On 17.1.2010 the
accused Manjuda Mahali was arrested and thereupon, a bail petition was filed on behalf of the accused by the same counsel Sri Bibhuti Bhushan
Singh on 21.1.2010. When it was moved by him, his very appearance was objected by learned A.P.P by referring the order dated 14.12.2009
under which learned Sessions Judge, Jamtara had debarred Sri Bibhuti Bhushan Singh for defending the accused which put the learned 5th
Additional Sessions Judge, Jamtara at fix as on one hand, the accused does have constitutional as also legal right to be defended by legal
practitioner of his choice but on the other hand, there was an order of the learned Sessions Judge debarring the counsel of the choice of the
accused for defending the accused which order cannot be recalled/reviewed by succeeding court in view of the provision as contained in Section
362 of the Code of Criminal Procedure and as such, following questions were referred to u/s 395(2) of the Code of Criminal Procedure for its
determination by this Court:
(1) Whether learned defence counsel Sri Bibhuti Bhushan Singh may be permitted to appear in instant case without recalling the order dated
14.12.2009 passed by learned Sessions Judge, Jamtara?
(2) Whether this Court can recall/review the above said order passed by the learned Sessions Judge, Jamtara which in opinion of this Court can
not be done because this Court is also exercising jurisdiction of sessions court as an Additional Sessions Judge.
(3) How to proceed in the instant sessions trial, when the accused is not ready to engage any other lawyers whether compelling accused to engage
another, will not affect his legal right to be defended by a Pleader/Legal Practitioner of his (accused) choice.
3. Upon institution of the case, Sri B.M. Tripathi, learned senior counsel was appointed as amicus curiae to assist this Court in favour of the
reference whereas Sri Ramesh Kumar Singh, learned Counsel was appointed as amicus curiae to assist this Court against the reference.
4. Mr. B.M. Tripathi, learned senior counsel by referring Article 22(1) of the Constitution of India and also Section 303 of the Code of Criminal
Procedure submits that the accused does have constitutional as also the legal right to be defended in a proceeding instituted under the Code by
pleader of his choice and this fundamental right cannot be taken away except by due process of law and, therefore, any order debarring the
Advocate of the choice of the accused from defending the accused would be violative of fundamental right and as such, the order would be void.
5. Learned Counsel in this respect further submits that the said order is otherwise also bad as before passing the order of debarring counsel of the
choice of the accused, no show cause or opportunity of hearing was given to the learned defence counsel which is violative of the principle of
natural justice.
6. Learned Counsel very fairly by referring to a case of R.K. Anand Vs. Registrar, Delhi High Court, submits that of course the court does have
supervisory and controlling power to conduct the cases in the court and in exercising of that power, the court may debar an Advocate after giving
due opportunity to him if the Advocate is guilty of contempt of court or of unbecoming or unprofessional conduct but the present case is not as
such whereby the conduct of the counsel was found to be unprofessional or unbecoming of a lawyer and hence, the order passed by the learned
Sessions Judge debarring the counsel of the accused of his choice is patently illegal which warrants to be quashed by this Court in exercise of
power u/s 401 of the Code of Criminal Procedure as even an order which is an unconstitutional would be valid unless it is set aside by the court of
competent jurisdiction.
7. On the other hand, Mr. R.K. Singh learned Counsel by referring to observation made in paragraph 34 in a case of Ex-Capt. Harish Uppal Vs.
Union of India (UOI) and Another, which got approval in a case of R.K. Anand Vs. Registrar, Delhi High Court, submits that in order to have
smooth functioning, the court does have ample power to regulate the proceeding of the court even if it adversely affects the right of an Advocate.
8. Learned Counsel by drawing strength from the observation made in the case, as referred to above, submits that learned Sessions Judge by
debarring the defence counsel from defending the accused has not committed any illegality.
9. In the context of the submission made above, reference may be made to Article 22(1) of the Constitution of India which reads as follows:
No person who is arrested shall be detain in custody without being informed, as soon as may be of the grounds for such arrest, nor shall he be
denied the right to consult and to be defended by, a legal practitioner of his choice.
10. At the same time, I may also refer to Section 303 of the Code of Criminal Procedure which reads as follows:
Right of person against whom proceedings are instituted to be defended: Any person accused of ah offence before a Criminal Court, or against
whom proceedings are instituted under this Code, may of right be defended by a pleader of his choice.
11. Reading both the provisions conjointly, it may be stated that Criminal Procedure Code allows the right to be defended by counsel of the choice
but that is not the guaranteed right. However, the Framers of the Constitution have well thought of this right and by including the prescription the
Constitution have put it beyond the power of any authority to alter it without the constitution been altered. The first is the right to be told the reason
of the arrest as soon as the arrest is made, second is the right to be produced before the Magistrate within 24 hours and the third is the right to be
defended by a lawyer of once choice. Therefore, any order passed by the court in derogation of the Constitutional right as enshrined under Article
22(1) of the Constitution of India would certainly be unconstitutional, void and illegal. Therefore, the order passed by the learned Sessions Judge
debarring the counsel of the choice of the accused is unsustainable.
12. In fairness to submission made by Mr. Singh, I must refer to observation in regard to Lawyer''s right to appear before the court made in
paragraph 34 of a case of Ex-captain Harish Uttal v. Union of India (supra) which reads as follows:
34. One last thing which must be mentioned is that the right of appearance in courts is still within the control and jurisdiction of courts. Section 30
of the Advocates Act has not been brought into force and rightly so. Control of conduct in court can only be within the domain of courts. Thus
Article 145 of the Constitution of India gives to the Supreme Court and Section 34 of the Advocates Act gives to the High Court power to frame
rules including rules regarding condition on which a person (including an advocate) can practice in the Supreme Court and/or in the High Court and
courts subordinate thereto. Many courts have framed rules in this behalf. Such a rule would be valid and binding on all. Let the Bar take not,; that
unless self-restraint is exercised, courts may now have to consider framing specific rules debarring advocates, guilty of contempt and/or
unprofessional or unbecoming conduct, from appearing before the courts. Such a rule if framed would not have anything to do with the disciplinary
jurisdiction of the Bar Councils. It would be concerning the dignity and orderly functioning of the courts. The right of the advocate to practise
envelopes a lot of acts to be performed by him in discharge of his professional duties. Apart from appearing in the courts he can be consulted by
his clients, he can give his legal opinion whenever sought for, he can draft instruments, pleadings, affidavits or any other documents, he can
participate in any conference involving legal discussions, he can work in any office or firm as a legal officer, he can appear for his clients before an
arbitrator or arbitrators, etc. Such a rule would have nothing to do with all the acts done by an advocate during his practice. He may even file
vakalat on behalf of a client event though his appearance Inside the court is not permitted. Conduct in court is a matter concerning the court and
hence the Bar Council cannot claim that what should happen inside the court could also be regulated by them in exercise of their disciplinary
powers. The right to practice, no doubt, is the genus of which the right to appear and conduct cases in the court may be a specie. But the right to
appear and conduct case in the court is a matter on which the court must and does have major supervisory and controlling power. Hence, courts
cannot be and are not divested of control or supervision of conduct in court merely because it may involve the right of an advocate. A rule can
stipulate that a persons who has committed contempt of court or has behaved unprofessionally and in an unbecoming manner will not have the right
to continue to appear and plead and conduct cases in courts. The Bar Council cannot over rule such a regulation concerning the orderly conduct of
court proceedings. On the contrary, it will be their duty to see that such a rule is strictly abided by. Courts of law are structured in such a design as
to evoke respect and reverence to the majesty of law and justice. The machinery for dispensation of justice according to law is operated by the
court. Proceedings inside the courts are always expected to be held in dignified and orderly manner. The very sight of an advocate, who is guilty of
contempt of court or of unbecoming or unprofessional conduct, standing in the court Would erode the dignity of the court and even corrode its
majesty besides impairing the confidence of the public in the efficacy of the institution of the courts. The power to frame such rules should not be
confused with the right to practice law. While the Bar Council can exercise control over the latter, the courts are in control of the former. The
distinction is dearly brought out by the difference in language in Section 49 of the Advocates Act on the one hand and Article 145 of the
Constitution of India and Section 34(1) of the Advocates Act on the other. Section 49 merely empowers the Bar Council to frame rules laying
down conditions subject to which an advocate shall have a right to practice i.e. do all the other acts set out above. However, Article 145 of the
Constitution of India empowers the Supreme Court to make rules for regulating this practice and procedure of the court including inter alia rules as
to persons practicing before this Court. Similarly Section 34 of the Advocates Act empowers High Courts to frame rules, inter alia to lay down
conditions on which an advocate shall be permitted to practice in courts. Article 145 of the Constitution of India and Section 34 of the Advocates
Act clearly show that there is no absolute right of a advocate to appear in a court. An advocate appears in a court subject to such conditions as
are laid down by the court. It must be remembered that Section 30 has not been brought into force and this also shows that there is no absolute
right to appear in a court. Even if Section 30 were to be brought into force control of proceedings in court will always remain with the court. Thus
even then the right to appear in court will be subject to complying with conditions laid down by courts just as practice outside courts would be
subject to conditions laid down by Bar Council of India. There is thus no conflict or clash between to the provisions of the Advocates Act on the
one hand and Section 34 and Article 145 of the Constitution of India on the other.
13. Thus, it has been laid down that the court in course of proceeding does have controlling power and if any of the Advocate guilty of contempt
and/or unprofessional or unbecoming conduct, he can be debarred from appearing for the accused. However, as has been expressed by the
Hon''ble Supreme Court in a case of R.K. Anand v. Registrar, Delhi High Court (supra) the rule of natural justice demands that before passing any
order debarring an Advocate from appearing any court, he must be heard in the matter.
14. Here in the instant case, the learned Sessions Judge without asking any explanation from the counsel appearing for the accused about his
absence debarred him from defending the accused and in that event, conduct of the lawyer cannot be said to be unprofessional if he did not appear
in the case on the date fixed as there may be numerous reasons for his non-appearance on the date fixed and, therefore, the order under which
counsel of the accused was debarred from appearing for the accused is not only illegal but also unconstitutional which is unsustainable in law and
hence, by exercising suo motu revisional power, I set aside the order dated 14.12.2009 passed by the learned Sessions Judge, Jamtara in Sessions
Trial No. 76 of 2009.
15. Accordingly, learned 5th Additional Sessions Judge shall now proceed with the case in accordance with law. In this event, reference made
need not to be answered in any specific terms.
16. Before parting with this order, I must record my appreciation to both the counsel who with their best of abilities rendered assistance to the
court in order to arrive at to just decision.