The dishonesty, falsity, frivolity and sophistry of Adv. Kapil Sibbal in settling the draft of Anil Deshmukh.
As
per drafting of Mr. Anil Deshmukh he resigned before 31.03.2021 and therefore
the apprehension of the petitioner that police cannot investigate against Home
Minister no more exist and this fact was
brought to the notice of the High Court but High cout failed to appreciate.
But
Anil Deshmukh’s letter of resignation itself says that he has resigned on
05.04.2021 because the judgment is passed by the High Court.
The
relevant prayer reads thus;
“xv) To
verify the conduct of Sr. Adv. Kapil
Sibbal & Sr. Adv. Amit Desai as per law and ratio laid down in Lal Bahadur Gautam’s case (supra) and
give specific finding about their ‘intellectual
dishonestly’, sophistry and ‘straw man fallacy’ in giving anticipatorily
overruled and per-incuriam submission to misled the Court with ulterior motive
to frustrate the lawful prayers of the victims i.e. Respondent No. 25, 26 and
27 and thereby causing the unlawful detention and wrongful confinement.”
Indian
Bar Association is likely to send representation to the CJI for taking action
against Kapil Sibbal.
New Delhi :
The falsity of the drafting settled by Kapil Sibbal can be seen from very fact
that the High court closed the argument on 31.03.2021 and passed an order on
5.04.2021 at 12 pm and Anil Deshmukh resigned from the post at around 2 pm by
giving the reason that he is resigning because of the judgment of High Court so
that the CBI enquiry can be conducted fairly.
However
while challenging the order of the High Court it is falsely mentioned on
affidavit in the SLP that Mr. Anil Deshmukh has already resigned and the High Court failed to consider this fact
and on this ground he prayed for setting aside the order of the High Court.
The
relevant ground (X) and (Y) at page no 67 and 68 of the SLP reads thus;
“X. Because the High Court did not appreciate that the
Petitioner has resigned, the reasons why the Hon’ble High Court passed the
Order, does not survive anymore.
Y. Because the High Court did not appreciate that on a
demurrer, the state machinery can now freely conduct its investigations, and
the apprehensions expressed by the Hon’ble High Court no longer exist.”
The
petition is drafted by Adv. Sudhanshu Chaudhary and draft is settled by Senior
Counsel Kapil Sibbal.
There
are following landmark judgments which
makes such advocates and senior counsel’s
like Kapil Sibbal liable for action of perjury in such situation.
1.1. In E.
S. Reddi Vs. Chief Secretary, Government of A.P (1987)
3 SCC 258 it is ruled as under;
Duty
and responsibility of senior counsel settling the draft- By virtue of the
pre-eminence which senior counsel enjoy in the profession, they not only carry
greater responsibilities but they also act as a model to the junior members of
the profession. A senior counsel more or less occupies a position akin to a
Queen's counsel in England next after the Attorney General and the Solicitor
General. It is an honor and privilege conferred on advocates of standing and
experience by the chief justice and the Judges of this court. They thus become
leading counsel and take precedence on all counsel not having that rank- A
senior counsel though he cannot draw up pleadings of the party, can
nevertheless be engaged "to settle" i.e. to put the pleadings into
"proper and satisfactory form" and hence a senior counsel settling
pleadings has a more onerous responsibility as otherwise the blame for improper
pleadings will be laid at his doors.
“10.
Duty of Advocates towards Court – Held, he has to act fairly and place all the
truth even if it is against his client – he should not withhold the authority
or documents which tells against his client – It is a mistake to suppose that
he is a mouthpiece of his client to say that he wants – He must disregard with
instruction of his client which conflicts with their duty to the Court.
1.2.
In R. Muthukrishnan Vs. The
Registrar General of the High Court of Judicature at Madras 2019 SCC
OnLine SC 105 ruled as under;
‘‘25. It is said by Alexander Cockburn that “the weapon of the advocate is
the sword of a soldier, not the dagger of the assassin”. It is the ethical duty of lawyers not to expect any favour from a
Judge. He must rely on the precedents, read them carefully and avoid corruption
and collusion of any kind, not to make false pleadings and avoid twisting of
facts. In a profession, everything cannot be said to be fair even in the
struggle for survival. The ethical
standard is uncompromisable. Honesty, dedication and hard work is the only
source towards perfection. An Advocate conduct is supposed to be exemplary. In case an Advocate causes disrepute of the
Judges or his colleagues or involves himself in misconduct, that is the most
sinister and damaging act which can be done to the entire legal system. Such a
person is definitely deadwood and deserves to be chopped off.
1.3. In Veerbhadra Rao Vs. Tek Chand AIR
1985 SC 28 observed that Members of the profession claimed
that they are the leaders of thought and society.
It is ruled as under ;
“ (Para 23 )
................Add to this that he ( Advocate) made a blatantly false
statement in the proceedings of disciplinary enquiry that the respondent had
appeared before him and admitted his signature. This is not only a false
statement but it is false to his knowledge. If this is not professional
misconduct, it would be time to wind up this jurisdiction. "
In the words of Justice Krishna Iyer in Bar Council of Maharashtra v. M. V.
Dabholkar, (1976) 1 SCR 306 at P. 322 : (AIR 1975 SC 2092 at P. 2104) the
role of the members of the Bar can be appreciated. the Bar Council, is
more concerned with and sensitive to this potential disrepute the few black
sheep bring about. The official heads of the Bar i.e. the Attorney General and
the Advocate-General too are distressed if a lawyer 'Stoops to conquer' by retort
to soliciting touting and other corrupt practices. He said :
"The Bar is not a private guild, like
that of barbers, butchers and candlestick-makers' but, by bold contrast, a
public institution committed to public justice and pro bono publico service. The
grant of a monopoly licence to practice law is based on three assumptions : (1)
There is a socially useful function for the lawyer to perform. (2) The lawyer
is a professional person who will perform that function, and (3) His
performance as a professional person is regulated by himself and more formally,
by the profession as a whole. The central function that the legal profession
must perform is nothing less than the administration of justice ('The Practice
of Law is a Public Utility' The Lawyer, the Public and Professional Responsibility'
by F. Raymond Marks et al - Chicago American Bar Foundation, 1972, p. 288-289).
A glance at the functions of the Bar Council, and it will be apparent that a
rainbow of public utility duties, including legal aid to the poor, is cast on
these bodies in the national hope that the members of this monopoly will
serve society and keep to canons of ethics befitting an honourable order.
If pathological cases of member misbehaviour occur, the reputation and
credibility of the Bar suffer a mayhem and who, but the Bar Council, is
more concerned with and sensitive to this potential disrepute the few black
sheep bring about. The official heads of the Bar i.e. the Attorney General and
the Advocate-General too are distressed if a lawyer 'Stoops to conquer' by retort
to soliciting touting and other corrupt practices." It these are the high expectations of what is described as
a noble profession, its members must set an example of conduct worthy of
emulation. If he falls from that high expectation, the punishment has to be
commensurate with the degree and gravity of the misconduct. We need not reiterate
the seriousness of the misconduct as we have repeatedly pointed out the same
above.
I.P.C. 466, 193 – A Vakil was
sentenced to two rigorous imprisonment of 5 years for filling documents
containing false statement – Held, If legal practitioner signs a documents it
is presumed that he fixes signatory with knowledge of contents – A Vakil so
signing cannot plead that he did not know the contents – makes himself
responsible in every way – He is bound to answer for every word, line, sentence
and paragraph, and it will be no defence that somebody else wrote it and he
only signed it – He will be bound by all the implications arising from it just
as much as if he had written every word – practitioner must realize that if
they associates themselves with statements which they know to be dishonest and
untruthful for the purpose of misleading the Court then they should be punished
– practitioner suspended.
1.5. In Badhuvan Kunhi Vs. K. M. Abdulla MANU/KE/0828/2016, also contempt action was taken against
the advocate.
1.6. Hon'ble high court in the case of P. V. R. S. Manikumar v. Krishna Reddy -1999 cri. l. j. 2010 held a Lawyer guilty of contempt for suppression of material fact. It has been observed as under;
23. These things would show that the counsel has taken extra interest for his client and tapped every forum simultaneously and exhausted all the remedies at one stroke. The conduct of the counsel for the petitioner as well as the petitioner in approaching this Court and obtaining an order of stay even without mentioning relevant and material particulars is highly reprehensible. The counsel for the petitioner ought not to have been the party for the contemptuous act committed by the petitioner. The counsel is expected only to give legal advice. He cannot be expected to act in such a way in order to get some order or the other in some way or the other by suppressing the actual facts, which are very much known to him.
24. This conduct on the part of the petitioner/accused as well as the counsel would not only injure the other party in the litigation, but also would cause most mischievous consequence to the administration of the criminal justice. This would certainly be termed as an absolute abuse of Court's process.
It has further been held that ;
27. Filing of any petition to stall the judicial proceedings in any Court of law by suppression of facts exposes the intention of the party concerned in preventing the course of justice. Anyone, who may be a client or a counsel, who makes an attempt to impede or undermine or obstruct the free flow of the holy stream of justice by resorting to the filing of these petitions, would cause serious damage to the institution.
28. The counsel is endowed with noble duties. He has not only got duty towards his client, but also to his colleague. He has not only got duty towards the Court, but also towards society. Therefore, he should see the case of his client conducted fairly and honestly. The Advocates are responsible to the Court for the fair and honest conduct of the case. In matters of this kind, they are bound to exercise an independent judgment and to conduct themselves with a sense of personal responsibility.
29. According to the Supreme Court in Hari Shankar Rastogi v. Girdhari Sharma, AIR 1978 SC 1019 : (1978 Cri LJ 778), the Bar is not different from the Bench. They are the two sides of the same coin. Bar is an extension of the system of justice; lawyer is an officer of the Court. He is a master of an expertise, but more than that, kindful to the Court and governed by high ethics. The success of judicial process often depends on the service of the legal profession.
30. Normally, in dealing with the application for quashing, etc., while interim orders, the Court naturally takes the facts and grounds contained in the petition at their face value and the oral submission made by the counsel before this Court. Therefore, it may not be fair and proper on the part of the counsel to betray the confidence of the Court by making statements which are misleading.
31. Mr. N. R. Elango, the learned Government Advocate, who was asked to assist in this matter as Amicus Curiae, has cited the judgment of the Supreme Court in P. D. Khandekar v. Bar Council of Maharashtra, AIR 1984 SC 110, wherein it has been held that the members of the legal profession should stand free from suspicion and that nothing should be done by any member of the legal fraternity which might tend to lessen any decree of confidence of the public in the fidelity, honesty and integrity of the profession.
32. As the Apex Court would point out, giving a wrong legal advice cannot be said to be unethical, but giving an improper legal advice cannot be said to be ethical. When a client consults with a lawyer for his advice, the client relies upon his requisite experience, skill and knowledge as a counsel. In such a situation, the counsel is expected to give proper and dispassionate legal advice to the client for the protection of his interests.
33. ............. non-mentioning in this Court of the pendency of the Revision before the Sessions Court, and non-mentioning of the stay order passed by this Court before the Sessions Court and the trial Court would definitely be considered to be an improper legal advice.
34. However, the learned counsel for the petitioner filed an affidavit dated 3-2-1999 before this Court tendering unconditional apology for what are all he had committed in this matter earlier. He would give various circumstances in the said affidavit as to how he was not able to give those details to the respective Courts.
35. One portion of the affidavit filed by the counsel is quite relevant, which is as follows :-
"I
regret to say that I am standing as an accused before this Hon'ble Court as
said by Thiruvalluvar
(Vernacular
matter omitted ....Ed.)
I humbly
submit that I submit my unconditional apology for my act and I undertake that I
would be very careful in touching the provision of law and assure that I would
not commit such error or mistake and never do any illegal act which amounts to
criminal or civil contempts in future."
36. The
above portion of the affidavit really touches my heart and this would clearly
reveal as to what extent the counsel for the petitioner felt sad and sorry for
the happenings referred to above. There is a popular saying :
"To
err is human;
To forgive
is divine."
I may add
one more sentence to it :
"To
realise and to reform, is also divine."
37. The
great Tamil Saint Thiruvalluvar says :
(Vernacular
matter omitted ....Ed.)
Wield fast
the rod, but gently lay. This strict mildness prolongs the sway.
38. Therefore, once the counsel for the petitioner
realises his mistake, then this Court would consider the act of the counsel
sympathetically without resorting to any other action against the counsel.
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