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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CRL.) No.9967 OF 2011  

Sanjay Kumar                 … Petitioner

        Versus

The State of Bihar & Anr.                 …Respondents

O R D E R

1. This special leave petition has been filed against the impugned  

judgment  and  order  dated  22.7.2011,  passed  by  the  High  Court  of  

Judicature at Patna in Criminal Misc. No.13116 of 2009 quashing the  

criminal proceedings against  the respondent no.2 while allowing the  

application under Section 482 of the Code of Criminal Procedure, 1973  

(hereinafter referred to as ‘Cr.P.C.’).

2. Facts and circumstances giving rise to this petition are that:

A. The petitioner claimed to have been appointed by the private  

respondent  no.2 in  a  fake  dental  college as  a  Senior  Lecturer  for  a  

period of one year and issued 12 post dated cheques for payment of his

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salary  out  of  which  9  cheques  had  bounced.   The  complainant-

petitioner sent legal notice to the respondent no.2 but without giving  

them  sufficient  time  to  file  a  reply,  filed  a  complaint  before  the  

Magistrate at Danapur, Patna under Sections 34, 403, 404, 406, 408,  

418, 420 and 504 of the Indian Penal Code, 1860 (hereinafter referred  

to as ‘IPC’) and under Section 138 of Negotiable Instrument Act, 1881  

(hereinafter referred to as ‘NI Act’).

B. Learned  Magistrate,  Danapur  vide  an  order  dated  12.5.2008  

summoned the private respondent for appearance on 12.6.2008, being  

prima facie of the view that a case under Sections 406, 420 IPC and  

under Section 138 of  NI Act was made out by the petitioner.   The  

private  respondent  challenged  the  said  order  by  filing  the  petition  

before  the  High  Court  which  has  been  allowed  vide  impugned  

judgment and order on various grounds,  inter-alia that there was an  

agreement between the parties for service for one year and one of the  

conditions in the agreement was that the petitioner would not resign  

from the institute till the completion of 3 years.  More so, the petitioner  

did not even give sufficient time to the accused to respond to the legal  

notice as he filed the complaint within the close proximity of the date  

of the notice.  The High Court also concluded that there was nothing on  

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record to show that the notice had ever been served upon the private  

respondent and ultimately allowed the said petition on the ground that  

it was a case of civil nature as it was a matter of recovery of salary.

C. Aggrieved,  the  petitioner  approached  this  Court  making  the  

averment in the petition that accused persons had been running a fake  

institution  and  offered  the  appointment  to  the  petitioner  on  certain  

terms and in spite of working therein, he was not paid the salary.   

Hence, this petition.

3. In the instant case the counsel appearing in the court for the  

petitioner  designated  himself  merely  has  a  proxy  counsel.   The  

Advocate-on-record (for short ‘AOR’) had no courtesy to send, at least,  

a slip mentioning the name of the counsel who has to appear in the  

court. Thus, in such a fact-situation, we had no advantage even to know  

the name of the counsel who was appearing in the court.

4.   Earlier, this Court had issued notice to the petitioner himself to  

show cause that in case it was a fake institution, what was the reason or  

rationale for the petitioner to join the same and to continue to serve  

there for one year.  In reply to the said show cause notice, the petitioner  

submitted that such pleadings be ignored and may not be taken into  

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account for the purpose of disposal of the instant petition.  We do not  

see any reason to allow a party to make a pleading in the petition and  

then make a submission to the court to ignore it as such an issue has no  

bearing on the merits of the case being totally irrelevant.  Pleadings  

have to be true to the knowledge of the parties and in case a person  

takes such misleading pleadings, he can be refused not only any kind of  

indulgence by the court but can also be tried for perjury.  In case, the  

pleading taken by the petitioner is true, he cannot ask for ignoring the  

same.  In case, it is false and as such statement had been made on oath,  

he is liable to be tried for perjury.  More so, whether such a pleading is  

relevant or not is a matter to be decided by the court and under Section  

165 of the Indian Evidence Act, 1872, court has a right to ask the party  

even relevant or irrelevant questions and the parties or their counsel  

cannot raise any objection to any such question.

5. In such a fact-situation, words fail us to condemn the audacity  

of  the  petitioner  to  tell  the  highest  court  of  the  land  to  ignore  the  

pleadings taken by him.

Be that as it may, this Court had insisted at the time of first  

round of hearing of this case that AOR, Shri Manu Shanker Mishra  

should remain present in the Court at the time of arguments and also  

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passed over the matter for his appearance.  In the second round, it was  

informed to us that the AOR refused to come to the court.  We take a  

very serious note of the conduct of this AOR, particularly, in view of  

the judgment of this Court In Re: Rameshwar Prasad Goyal, (2014)  

1  SCC 572, wherein this Court has categorically held that in case the  

AOR does  not  appear  in  the  court,  his  conduct  may tantamount  to  

criminal contempt of the court.  In fact, a very few AsOR have spoiled  

the working system of the institution of AsOR who simply lend their  

signatures for petty amount.  The AOR involved herein is living in a  

fool’s paradise if he thinks that he can play hide and seek with any  

court of law.   

             In such a chaotic situation, any “Arzi”, “Farzi”, half-baked  

lawyer under the label of “proxy counsel”, a phrase not traceable under  

the Advocates Act, 1961 or under the Supreme Court Rules, 1966 etc.,  

cannot be allowed to abuse and misuse the process of the court under a  

false impression that he has a right to waste public time without any  

authority to appear in the court,  either  from the litigant  or  from the  

AOR, as in the instant case.  The AOR, with impunity was disdainful  

towards the order of this Court directing him to appear in the court.  He  

had also not filed any appearance for the counsel who had appeared, nor  

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the said counsel disclosed his name. The Court takes serious note of the  

conduct  of  the  AOR,  Shri  Manu Shanker  Mishra  and warns  him to  

behave in an appropriate manner befitting the conduct of an advocate  

and an AOR otherwise this Court will not hesitate to take action against  

him.  His conduct will be under close watch of this Court.  

6. With the aforesaid observations, the petition stands dismissed.

                                      …………......................J.                           (Dr. B.S. CHAUHAN)

             ……….........................J.                                     (J. CHELAMESWAR)

             ……….........................J.                            (M.Y. EQBAL)

NEW DELHI JANUARY  28, 2014.

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