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Some Specimens of the Nobel and Learned Profession Part V

Title: Some Specimens of the Nobel and Learned Profession – Part V

Some Specimens of the Nobel and Learned Profession - V

(In the context of false case booked under Section 498A of IPC)

B.N.GURURAJ, Advocate

In this narration,

CL stands for Civil Lawyer of the Accused person.

CRL stands for Criminal side Lawyer of the Accused person.

OL stands for opposite side lawyer.

Order not passed in anticipatory bail application

The date on which the Sessions court was required to deliver the order on anticipatory bail application was a Saturday. In the morning I received a call from the CRL informing me that he had been hospitalized and would not be able to attend the court. I assured him that I would appear in the court as proxy counsel and inform the court. As coincidence would have it, the judge who had heard the matter the previous Monday had been transferred. In the Sessions court, there was a new judge, who had reported to duty just the previous day. Even his name was not known to the counsels or to the court staff! Of course, without hearing the matter again, there was no question of the new judge passing order on an application heard by his predecessor. Thus, the matter was adjourned by a week to allow CRL to appear and argue the matter once again before the new judge.

That evening I met the CRL. Both as a matter of courtesy to know of his health status, and also to inform him of the adjournment of the anticipatory bail application hearing. By that time, he had been discharged from the hospital. I informed him that the next date of hearing would be the coming Saturday.

It seemed to me that he was a man of low self esteem, which to some extent, accounted for his stridency, and aggressiveness with clients. He had a need to be recognized. In lieu of that he had the habit of speaking about himself and his past achievements. He spoke of great men and influential persons he knew. He showed me some judgments of past cases wherein he had appeared in serious matters such as rape case, attempt to murder and the like. In the rape case, he had proved that the victim was not a minor, based on the development of wisdom teeth. That seemed like quite a smart argument!

Then he came to the topic of fee. As of that date, we did not owe him anything. He had been paid 10K soon after filing of anticipatory bail application. Fee for getting the accused husband on bail had already been paid at 20K, on the day of the bail order itself. He said, he had to be paid fee, but would not state what his fee was, or what was his expectation. I had seen this tendency amongst lawyers practicing on civil and criminal side. The matter of fee is kept vague so that they can periodically keep demanding fee, based on bits and pieces of work done between two fees. But, I determinedly told CRL to state his fee and I would arrange to have it paid. I also reminded that when he obtained bail for the husband, he had undervalued his own work, and I was fair enough to advise the client to pay more fee. On that note, I left him, still without any clue as to what further fee he expected.

Parents return from exile

Once the news of mediation agreement reached the parents-in-law, they could not stay away from Bangalore anymore. Since the complainant had committed to withdraw the case, they felt that it would be reasonably safe to return to Bangalore. Therefore, without waiting for the anticipatory bail order, which could have taken at least another eight days, the returned to Bangalore. I informed the father of the accused husband to accompany him to Family Court on Monday, as I had other professional pre-occupation.

Divorce judgment delivered

The Monday after the conclusion of mediation, the divorce petition of the accused husband came up for hearing before the Family Court Judge in the afternoon. Both the accused husband and the complainant wife were present in the court. The complainant wife confirmed that the cheque for Rs.20 lakhs issued to her towards permanent alimony had been realized and money credited to her account. Upon seeing the mediation agreement, the Judge recorded the fact that matter had been settled by mediation, and that the wife had confirmed the receipt of money. On this basis, in a short judgment, the judge ordered divorce and dissolution of marriage. The Judge specifically told the complainant that she must withdraw the criminal case. The complainant wife replied that after this court proceeding, she was proceeding to withdraw the case and she had been called at 5.00 pm. Since I was not at the court, the father called and told me of this out come and the complainant-wife’s commitment to withdraw the case.

I told him that since the matter was now before the court, any withdrawal of case had to be done only with the leave of the court. Therefore, I surmised that she must be proceeding to the magistrate court. I told that both of them should proceed to that court and wait for her arrival. After 5 O’clock, I got a call from the father of the accused, informing me that she had not turned up at the magistrate court. This situation left all of us with heightened state of anxiety. We were most anxious to see that the criminal case was concluded so that the accused husband could return to his job.

Withdrawal of criminal case flounders

We contacted the CL. After playing his usual game of being unavailable, he told me over phone that he would speak to the OL and revert to me. Next day, instead of reverting to me, he told the accused husband that the complainant wife would go to the police station and withdraw the complaint.

When I heard this, even with my limited knowledge and experience of criminal side practice, I felt that this was highly unsatisfactory. Once a matter is before the court, the court alone will have exclusive jurisdiction in that matter. Withdrawal of complaint in the police station would not be taken notice of by the court. Police would be bound to pursue the matter under the supervision of the court.

Further, I had stood a surety for the bail order. What would happen to the surety bond I had executed? How would that be cancelled, if the complaint is withdrawn in the police station? It took me two day’s persistent effort to contact the CL and drum this into his head. Then he too reluctantly realized that withdrawal of complaint in the police station would not be of any help. He promised to speak to a professional friend of his, a well known criminal side lawyer. He assured that thereafter, he would speak to the OL and revert back to me.

A day later, he reverted to me and informed me that next morning by 11.00 am, the complainant would come to the magistrate court along with her counsel. We should have the CRL ready with us for drafting and moving the application.

In the meantime, since CRL was the person looking the criminal side of the matter, I spoke to him of this matter of withdrawal of criminal case. Even before this settlement was reached in the mediation centre, I had broached this subject with him. He was of the clear opinion that once the mediation agreement and divorce judgment are produced and the complainant moves an application for withdrawing the case, she would be put in the witness box and the judge would take her deposition and the case would be closed. He gave a graphic descripttion of the probable questions that would be put to the complainant by the magistrate. I did not ask him under which provision of the Cr.P.C which application could be moved. I took his three decade long experience at the bar at face value and expected that it would work that way. Coupled with the fact that the APP who took money on the day when the accused husband was sent to JC also spoke that upon settlement the case would be closed, I expected that this would work.

Next morning, the accused husband and complainant wife along with her counsel were present in the magistrate’s court. But, the CRL played truant. He did not come to court at eleven O'clock on the pretext that he was tied up in the Civil Court. Instead, he spoke to the wife’s lawyer over phone. CRL apparently told him that since the complaint was from the wife, their side should move the application for advancing the case and withdrawal of complaint before the magistrate. The complainant wife’s accompanying lawyer was purely a police station lawyer with very little drafting skill to speak of. So, he told the CRL that his instructions were to get the complainant to sign whatever papers he were to present. An argument ensured between the two, in which the CRL browbeat him on the basis of his seniority and experience. The other lawyer and the wife left in a huff without waiting for the CRL to turn up.

At this state, the desperate accused husband called me and requested me to come to court. When I went over there, he was waiting alone. After waiting for over an hour, CRL turned up. He came in a big huff made a show of how he had been offended by the talk of other side’s junior lawyer. To put it shortly, he was insufferable. Without even giving me a glance, he sat in the court hall and wrote out an application for advancing the case. Having done this, the man of three decades of standing at the bar, did something extraordinary and unbecoming. He went to the PP and exchanged some talk with him. Then, he went to the court’s Bench Clerk and spoke to him. Next he went to the Pending Branch’s assistant who was helpful to us in getting the release order. All of them, according to CRL, unanimously told him that such an application for withdrawal of criminal case was not maintainable. Before the charge sheet is filed, the court cannot close the case. After the Crime Number given by the police is converted into a Crime Case based on the charge sheet, an application for closing the case could be moved, and not a day sooner.

In my book, this was the worst thing a counsel could do. Advocacy is supposed to be a learned profession. The advocate has to be knowledgeable about his field of practice. In order to keep himself updated, he must study the statute law, reported decisions, and in absolutely essential cases, seek guidance from other experienced counsels in the field. But, going to the PP, who is going to prosecute the accused for guidance about how to get the accused discharged was the worst thing a counsel could have done. With this, I now knew that there is no end to the ignorance of the counsels, be they of three or four decades standing. After all, knowledge does not come by itself. One has to actively acquire it. A donkey of fifteen years age would still remain a donkey. With age, it does not become a horse!

Since he had drafted the advancing appliction for bringing up the case, I told him to anyway file it in the court and argue the matter. The CRL matter of factly said, "what is the use? The magistrate will ask the PP whether the case could be closed before filing of the charge sheet. PP will give same reply, which he gave now. There if no point in filing the advancing application."

With his antics, all that the CRL achieved was to get the opposite lawyer and the complainant peeved off. With their departure, any possibility of putting an end to the matter remained a distant possibility. As a parting shot, while leaving the court, the CRL said “you people were foolish to pay Rs. 20 lakhs. Now having paid so much money, you are not getting your full remedy also. You have to grin and bear it.”

Now I knew, this was what was bugging the CRL. That the accused husband had paid permanent alimony of twenty lakh rupees. The cases had to sooner than later, come to an end. That would end the prospect of dragging on a case for years together and assuring one’s self of steady inflow of fee. Suddenly, the CRL calculated that if hte accused husband could pay Rs.20 lakhs in a single cheque, he must milk the accused for whatever he was worth.

I managed to contact the CL and told him of these developments, especially, the unwillingness of the CRL to file the the advancing application and get the court's view. He too agreed that instead of asking PP and court clerks, he ought to have filed the application and got the court's views. But, by this time, the bird had flown out of the cage.

Law and procedure governing closure of criminal cases

At this stage, I decided to do some study of Cr.P.C. In the Code, trials are grouped into three categories: sessions cases, warrant cases and summons cases. There is also a summary trial which does not concern us, nor does the sessions case concern us. A warrant case means any offence for which the imprisonment is more than two years. Such cases are tried more elaborately. I found that in a warrant case such as the present one under section 498A, under Section 245 of the Cr.P.C, after examining the evidence, a magistrate could discharge the accused if he were of the opinion that there was insufficient ground to proceed further with the trial. That stage would require the police to file charge sheet, evidence to be taken by the court for framing the charges and thereafter, making application for discharge of the accused. The result of such application is not an assured one, as the magistrate could also form opinion that the case has to proceed. Same provision also provided for the discharge of the accused at any previous stage also if the considers the charges to be groundless. There was another provision in Section 239, which allowed a magistrate to dscharge the accused after considering the report of the police filed after investigation. This requied hearing of the prosecution as well as the accused and was not a provision readily applicable to a case where the complainant had agreed to withdraw the case.

There was also an alternative route, available through the police. This was probably same as the provision in Section 239, though the provision did not refer to any B Report. For filing the charge sheet, the police have to investigate the matter, take depositions, gather evidence, material objects and so on. After gathering all the evidence, or if any evidence fails to turn up at all, or if the police form the opinion that there is no material for filing charge sheet, they file a report known as B Report to the court. Upon receipt of the B report, the court would close the matter. But, B Report is open to challenge by the complainant. If the complainant applies to the court once again, the magistrate may take suo motu cognizance of the case and proceed further.

By this time, I had become averse to dealing with the CRL. However, since he was still the advocate on record, I had no option but to approach him once again to explore the options for closure of the case. Armed with the information I had gathered, I asked CRL to tell us how best this case could be closed. I thought that since there was a mediation agreement under which the complainant wife had agreed with withdraw the criminal case and even the divorce judgment had been delivered, it would be a fit case for asking the police to file a B Report. Complainant would not be able to challenge the B Report in the face of her own willingness withdraw the case as per mediation agreement.

CRL said, “let the accused husband come with me in the evening. I will take him to ACP. We will request him to instruct the inspector to file B report.” I did not accompany the duo. Subsequently, I learnt from the accused husband that when the CRL spoke to the ACP, he merely told him, without disclosing anything about the mediation agreement and divorce judgment, that either a B report or charge sheet had to be filed. Immediately, the ACP seems to have responded that since B report is likely to lead to complications such as challenge by the complainant, it was better to file charge sheet. He seems to have advised that once charge sheet is filed, the CRL could move his application for closure of case. The ACP advised the CRL to approach the jurisdictional inspector to expeditiously work for preparation and filing of charge sheet. Thus, the CRL with his wonderful professional competence made the accused husband work for framing charges against himself! That too, by making the accused husband pay the police inspector 10 K for quickly completing the charge sheet!

Guidance from mediation centre

To me, whole thing seemed weird as Kafkan world. The mediation agreement was a judicially enforceable document. Based on this agreement, the family court had already made an order dissolving the marriage. Therefore, the same judicially enforceable document must form the basis for closing the criminal case.

But, I had wasted enough time dealing with the CL and the CRL to know by now, that neither of them, either had the willingness or competence or knowledge to explore a judicial remedy for the impasse. I felt that the Mediation Rules framed under the Code of Civil Procedure might provide some clue. To my surprise, I found that the website of the mediation centre had not posted the text of these rules. Even the law book shops did not have the text of mediation rules, nor did they have any bigger book which contained the text of these rules. I had the fond hope that these rules would have an overriding provision, which would enable the criminal court also to close the proceeding based on the mediation agreement. Though I knew that this was impossible, as a Rule framed by the Government or the High Court cannot prevail over the provisions of Cr.P.C, which is an Act of Parliament, I definitely felt that I must explore the solution at the mediation centre itself.

So, on the Friday of that week, I went to meet the Director of the Mediation Centre, who was of the rank of District and Sessions Judge. But, he had not yet come to the office. While waiting for him, I went to the office of the mediation centre and requested them to show me the text of the Mediation Rules framed by the High Court. The staff and officers of mediation centre were quite helpful. They not only gave me a gazette copy of the rules for reading there, but also arranged my meeting with the Director, as soon as he reached the office. As I expected, the Mediation Rules did not give any direct remedy for closing criminal cases related to the divorce case settled through mediation.

When I met the Director, a man of late fifties, he heard me sympathetically. The burden of my song was that the mediation agreement provided for closure of not only the civil dispute, but also the criminal proceeding. Therefore, there must be some mechanism for closing the criminal case based on the commitment given by the complainant wife in the mediation agreement, rather than go to police for aid. He agreed with me, but pointed out the limitation of mediation: that criminal cases could be closed only in accordance with Cr.P.C. Mediation agreement recorded the party’s commitment to withdraw the complaint, thereby setting the machinery in motion for closing the proceeding. But, there was no short cut except through the provisions of Cr.P.C. By now, I knew that Cr.P.C’s remedy was a distant mirage, and would not be fast enough to save the job of the accused husband. The director had two suggestions. One, based on the mediation agreement, and the judgment of divorce, the police could file B report, which cannot be challenged by the complainant later on as she herself had agreed to withdraw the case. Other alternative was to file a petition under Section 482 of Cr.P.C before the High Court for quashing the criminal case.

I called CRL and asked, whether we could file a petition before the High Court for quashing the complaint. I must state here that Section 482 of the Cr.P.C confers certain inherent powers on the courts, so that they may do whatever is considered necessary for securing the ends of justice. It gives sweeping powers to the courts. But, the Supreme Court has consistently held that the power under this provision is exercisable only by the High Courts and Supreme Court. When I raised the option of filing a petition under Section 482, the CRL immediately scotched exploring that possibility by saying that even if a petition were filed, it would take a month to be listed for hearing as the number of such petitions were filed in large numbers and there was only one judge to hear such cases. In the alternative, I told him to apply to the court for allowing the accused to travel abroad for a month or two. He was quite unco-operative and rejected the suggestion on the ground that application was liable to be rejected before expiry of four weeks from the date of enlargement of accused on bail.

That afternoon, there was a pleasant surprise on an otherwise worthless day. The Deputy Director of mediation centre called the father of the accused husband and wanted to speak to the accused. When he was told that the accused was at the police station, the Deputy Director wondered aloud, “what is he doing at the police station? Anyway, please meet me with him on Monday afternoon by 2.00 pm. We may have a remedy for your problem.” With that, he closed the call. When I learnt of this call, I was elated. My visit had not been in vain. Internally, the mediation centre officers had discussed and concluded that the issue I had raised was indeed serious enough to frame an enduring solution.

As a part of the CRL’s harebrained idea of getting the charge sheet filed, the accused husband had to take the police woman from the station to his house, where she recorded the statements of the parents in law, the accused and two neighbours. All this was very embarrassing for the family. At least, the police woman was quite civilized in going about it. Pleasantly, she also refused to take the usual money gratification for her work. Must be indeed a rare specimen amongst police!

On Monday afternoon, I took the accused husband to the mediation centre. After waiting for about five minutes, the Deputy Director saw us. His first question was “Why did you go to police for closing criminal case?” I introduced myself and candidly told him of the quality of legal advise or bad legal advise we had been getting from our counsels, and that out of desperation, we had been exploring all possible avenues, including the ignominy of taking the help of police. I informed him that knowing this to be highly unsatisfactory situation, I had approached the mediation centre on the previous Friday. The Deputy Director spoke: “Listen, I have been a magistrate for ten years! Our hands would tied. No magistrate has the option of dismissing a case at the preliminary stage. Tell me under which provision a magistrate can close a criminal case?” The answer to his eloquent question was of course a No. I had not found any such enabling provision for closure of a criminal case under the present circumstances. He said, “A trial magistrate has no choice but to proceed with trial once charge sheet is filed. Here, you have been working feverishly for getting the charge sheet filed!” He continued, “I was born in a police family. My dad was a Deputy Superintendent of Police. I know how the police work. The police will take your money, they will say they would file B report. Two years later, when you receive summons from the court, you will realize that they have reneged and have filed a charge sheet instead of B report. It would be too late for you to do anything else, but to go through the long trial.” He continued, "if the police are decent, they must accept the judgment copy of the family court and mediation agreement and must readily agree to file B report. If they are attempting to do anything else, it is clear that their motives are not good." The Deputy Director advised, “there is only one remedy for you. You must move a petition under Section 482 of Cr.P.C, duly supported by the mediation agreement, and judgment of divorce. If you want expeditious hearing, enclose the confirmed air ticket also. The High Court will go out of the way to provide remedy to you, especially when your case has been settled through mediation centre!” The confidence with which he spoke was infectious. He had more or less affirmed whatever my research had revealed tentatively. We thanked him profusely, told him that we would take steps to file the petition by next day itself. We left the mediation centre, feeling far lighter in heart!

How the criminal case got quashed is a story which merits another article by itself.

CL wants his pound of flesh

Since the civil case had already come to an end, I felt that the CL should be paid his due fee. He had, at the time of filing the matrimonial case, taken 15 K and had informed the accused that if the case got settled without trial, he would take no more fee. However, if the trial went on, he would collect another 25 K totalling to 40K. This had seemed like a reasonable fee. I told the accused husband and his father to meet the CL and settle his fee. Surprisingly, he told these people that I must call him and find out about his fee. I wondered, why he himself could not have called me and spoken of the fee. Anyway, for me, this was not an ego issue. Next morning I called him about fee payable. He surprised me by saying "You were ready to pay Rs.25 lakhs. Whereas, I got the matter settled at Rs.20 lakhs. I have saved you people Rs.5 lakhs. Therefore, you advise the party to pay be 10% of that amount, i.e., 50 K!"

In legal profession, one is not supposed to take contingent fee, based on the outcome of the case. One is supposed to mark the brief, i.e., state the fee at the time of accepting the case. The reason is that a contingent fee will encourage the counsel to some how succeed in the case, even by hook and crook. A fixed fee would not offer motivation for doing unprofessional acts. But, here, the CL was reneging on his earlier committed fee of further 25K. Since I was not going to pay, I politely told him that I would contact his client and explain them the basis for the fee demanded. If they had any issues, they would discuss with the CL. From the past parts of this serial, the readers would have understood, to what extent, the counsels respect and adopt the professional ethics.

Eventually, I learnt that the CL did not budge from this stated fee. Only concession shown was that he accepted 35K at that time, but made it clear that sooner or later they would have to pay the balance sum of 15K.