Trial Courts Not Mute Spectators, Judicial Restraint Doesn't Disentitle Them From Taking Exception To Advocate's Extreme Conduct: Calcutta High Court

The Calcutta High Court has observed that "judicial restraint and discipline" does not mean that even in extreme cases a Judicial Officer is not entitled to take exception against non-conforming acts of an Advocate representing a party.

A single-judge bench of Justice Bibek Chaudhuri observed that where the Counsel of any of the parties disturbs judicial function of a Court, the Judge has every right to pass an order by caution to the Advocate concerned.

"It is not expected that a judge should be a mute spectator. He must take active participation in judicial proceeding...There are catena of instances where the learned Advocates even faced contempt for causing serious disturbance in course of discharging judicial function," it remarked. 

The observations were made while dealing with a petition seeking revision of an order refusing early hearing to the petitioner, an octogenarian cancer patient seeking further investigation in his criminal case alleging forgery and cheating. The reason for refusing early hearing was heavy board of the trial judge.

High Court held that since the Petitioner is an octogenarian cancer patient, he should not have to suffer due to the burden of cases on the Trial Judge. It thus directed that the petitioner's 173(8) CrPC application be heard and if required, recording of statement under 164 CrPC be done within one week.

“Given his old age and health condition the Court, on humanitarian grounds might prepone the date of hearing of the petition under Section 173(8) of the Cr.P.C. This Court sees no harm in preponing the date by a few days if it benefits the petitioner, given his serious health condition. He should not suffer because of administrative problems of the Court.”

However, Justice Chaudhuri expressed his displeasure at the conduct of the petitioner's advocate before the Trial court.

“When the learned Magistrate expressed his inability to prepone the date of hearing of the application under Section 173(8) of the Cr.P.C along with petitioner’s prayer for recording his statement under Section 164 of the Cr.P.C, the learned Advocates appearing on behalf of the petitioner could not control their excitement and they insisted time and again on acceding to their prayer on behalf of the complainant…….Moreover, the learned advocates did not allow to take up other cases fixed for hearing on 06.03.2023. The valuable judicial hours of the Court got wasted due to the disruptions by the learned Advocates.”

The trial court had warned the advocate that their conduct was unwarranted and they were asked to not repeat such a ruckus in the trial court, failing which stern action would be taken against them.

Apparently offended by the observations of the Trial judge, the advocates approached the High Court and complained of the ‘disgraceful’ observations of the trial judge.

Justice Chaudhuri noted that, during the revision petition, the advocates for the petitioner spent little time arguing the petitioner’s case but focused most of their energy on the observations of the Trial judge against him.

The bench remarked that the tenets of judicial restraint and discipline do not mean that even in extreme cases, a judicial officer cannot take exception to the acts of an advocate. It ended the matter by quoting Justice Hidayatullah in the case of Vishwanathan Vs. Abdul Wahid reported in 1963 Supreme Court 1 (V 50 C 1)

“If every remark of a Judge made from the Bench is to be construed `as indicating prejudice, I am afraid most Judges will fail to pass the exacting test. In the course of arguments, Judges express opinions tentatively formed, sometimes even strongly; but that does not always mean that the case has been prejudged. An argument in Court can never be effective if C.J., the Judges do not sometimes point out what appears to be the underlying fallacy in the apparent plausibility thereof, and any lawyer or litigant, who forms an apprehension on that score, cannot be said to be reasonably doing so. It has frequently been noticed that the objection of a Judge breaks down on a closer examination, and often enough, some Judges acknowledge publicly that they were mistaken. Of course, if the Judge unreasonably obstructs the flow of an argument or, does not allow it to be raised, it may be said that there has been no fair hearing.”

Coram: Justice Bibek Chaudhuri

Case: Atindra Nath Mondal v State of WB and ors CRR 919 of 2023

Citation: 2023 LiveLaw (Cal) 156

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