Gujarat High Court Imposes Costs On Lawyer For Attempting To 'Harass' Accused Through Frivolous Proceedings

The Gujarat High Court imposed cost of Rs. 5,000 on a lawyer who had sought addition of offences under Rights of Persons with Disabilities Act to the FIR after the chargesheet was filed, in absence of any material.

The Court noting that proceedings were frivolous and appeared to have been initiated to harass the accused and prolong the trial.

The petitioner filed a complaint against the accused for offences under Sections 504, 294(KH), 506(2) and 114 IPC. Upon completion of the investigation after the charge-sheet was filed, the petitioner filed an application seeking  addition of the charge for offence punishable under Section 92 of the Rights of Persons with Disabilities Act (PwDs), 2016 before the trial court. Trial Court rejected the application against which petitioner moved the Sessions Court which also rejected the plea. 

Section 92 punishes atrocities against persons with disabilities. 

Justice JC Doshi referred to the provision and said that it contemplates intentional insult or intimidation of a person with disability, with the intent to humiliate such person in any place within public view, or assault or use of force against a person with disability with the intent to dishonour such person or outrage the modesty of a woman with disability.

The court said that the essential ingredients for attracting the provisions of Sections 92(a) and 92(b) of the Act, 2016, as the case may be, must be borne out from the material available on record. Insofar as Section 92(a) is concerned, the element of the act having been committed in a place within public view is of significance. Further, the requisite intention to humiliate or dishonour a person on account of his disability is also a material consideration for invoking the said provision.

Referring to the FIR the court said, "Plain reading of the FIR lodged by the petitioner, who is himself a practicing advocate, does not disclose the necessary ingredients so as to attract the provisions of Section 92 of the Act, 2016".

The court said that while court has power to alter or add any charge at any stage before the pronouncement of judgment however, the existence of such power does not confer upon the de facto complainant any vested right to compel the Court to exercise the same in a particular manner or to steer the proceedings for addition of a particular charge.

It dsaid:

"Apt to note, learned APP, who is incharge of the trial before learned Trial Court did not support plea of petitioner to add charge of Section 92 of the Act of 2016. In absence thereof complainant cannot insist to frame charge of particular offence. What further appears that learned APP either at Revision stage or even in this petition support the plea of petitioner. In the facts of the present case, the petitioner, who is a practicing advocate, has failed to demonstrate the existence of the necessary ingredients for attracting offence under Section 92 of the Act, 2016. The material on record does not justify the addition of the proposed charge. The manner in which the proceedings have been pursued also indicates an attempt to unnecessary protract the criminal proceedings and subject the accused to further litigation. Proceedings at all the stage carried by petitioner being practicing advocate unquestionably demonstrate that, he by raising frivolous plea intend to entangle to accused.

Fact of petitioner being practising advocate gives presumption about awareness of provision of law, he must have knowledge that the FIR lacks charge of Section 92 of the Act of 2016, on receiving the copy of FIR but he did not raise any plea at earlier period during investigation but he came out with Application at Ex.6, no sooner criminal cases registered. This approach decipher that he by filling application (Ex.6) attempted to derail proceeding of criminal case with a view to harass the accused. In these circumstances, this Court is of the view that the present petition deserves to be dismissed with costs".

The court said that it cannot permit its judicial process to be employed as an instrument of oppression or as a device to secure an advantage having no legitimate nexus with the adjudication of the proceedings. Further, unmeritorious proceedings consume valuable judicial time, which is inherently limited, and thereby have the potential to delay the adjudication of matters involving genuine disputes it added.

The court thus dismissed the plea with costs of Rs.5,000/-, to be deposited by the petitioner-original complainant with the District Legal Services Authority, Patan.