SUNIL KUMAR PAL v.

PHOTA SHEIKH & Ors

[AIR 1984 SC 1591]

SUBMITTED BY
NAME : LAKSHMI SURESH
BATCH : 7 TH B.Com
ROLL NO : 30

SUBMITTED TO
ADV. ARSHA DHARMAPALAN

CSI COLLEGE FOR LEGAL STUDIES ,

KANAKKARY , KOTTAYAM
DATE : 29.07.2020
 SUNIL KUMAR PAL v.
PHOTA SHEIKH & Ors
[AIR 1984 SC 1591]

PETITIONER : SUNIL KUMAR PAL

RESPONDENT : PHOTA SHEIKH & Ors
DATE OF JUDGEMENT : 13 AUGUST 1984
BENCH : P BHAGAWATHI , V B ERADI
EQUIVALENT CITATIONS:
AIR 1984 SC 1591, 1984 (2) SCALE 184, (1984) 4
SCC 533

FACT
In this case the Supreme Court was presented with a peculiar
situation. In this case, some miscreants murdered the
appellant’s brother and there were virtually no
subsequent proceedings against the accused for quite
some time. The appellant was not present in India to
pursue the case vigorously. When he came to India, he
approached the state government to expedite things.
Due to his persistence, one lawyer was appointed as a
special public prosecutor. He approached the session
court judge trying for an adjournment, as he had no
records with him. He was granted only a day and he
returned the briefs, as he did not have sufficient time to
prepare for the case. Then the junior of the public
prosecutor in the area was appointed as special public
prosecutor for this case. He was also given a day for
preparation before the commencement of the trial, in
which it was astonishing to find that the nine accused
were represented by the public prosecutor of the area!
The trial was a farce. Supporters of the Communist
Party of India (Marxist) assembled around the court and
shouted slogans against the prosecution. Witnesses
were intimidated and several did not turn up. Some
turned hostile. The accused were acquitted. The
appellant’s prayer for leave to appeal was rejected. The
Calcutta High Court also rejected his appeal under
section 401. Then he approached the Supreme Court
with special leave. The court set aside the order of
acquittal after making a survey on the administration of
the lower court and in paragraph 10 observed thus:
The order passed by the learned
additional sessions judge acquitting respondent nos. 1 to
9 obviously suffers from a serious infirmity and we do
not think it is possible to sustain it on any view of the
matter. There can be little doubt that the trial
culminating in the acquittal of respondent nos. 1 to 9
was appallingly unfair so far as the prosecutions is
concerned and was heavily loaded in favour of
respondent nos. 1 to 9. It is difficult to understand how
consistently with ethics of the legal profession and fair
play in the administration of justice, the public
prosecutor of Nadia could appear on behalf of
respondent nos. 1 to 9. The appearance of the public
prosecutor, Nadia on behalf of the defence does lent
support to the allegation of the appellant that respondent
nos. 1 to 9 were supported by the Communist Party of
India (Marxist) which was at the material time the
ruling party in the State of West Bengal and this would
naturally give rise to apprehension in the minds of the
witnesses that in giving evidence against respondent
nos. 1 to 9, they would be not only incurring the
displeasure of the government but would also be
fighting against it. Moreover, it cannot be disputed that
when the trial was going on and the witnesses were
giving evidence, there were a large number of
supporters of the Communist Party (Marxist) who were
allowed to assemble in the court compound and who
created a hostile atmosphere by shouting against the
prosecution and in favour of the accused. Though the
appellant and the complainant as also the witnesses
were intimated, no steps were taken for according
protection to them so that they may be able to give
evidence truly and fearlessly in proper atmosphere
consistent with the sanctity of the court. It is significant
to note that quite a few witnesses turned hostile and that
obviously must have been due to the fact that they
apprehended danger to their life at the hands of
respondent nos. 1 to 9 and their supporters. It is also
regrettable that though at the time when the trial
commenced on 22nd May, 1978, Shri S. N. Ganguly,
who was appointed special public prosecutor to conduct
the prosecution, asked for an adjournment of the trial in
order to enable him to prepare the case particularly
since he was appointed on 20th May, 1978, the trial
was adjourned only for one day, with the result that S.
N. Ganguly had to return the relief. Then late in the
evening of 22nd May 1978 Shri S. S. Sen, additional
public prosecutor was asked to conduct the prosecution
and he had to begin the case on the very next morning
on 23rd May 1971 without practically any time for
effective preparation.

ISSUES RAISED

1.Whether the Public Prosecutor has committed

professional misconduct or not?
2. Whether Section 35 of Advocates Act 1961 is
violated ?
3. Is the judiciary has committed any form of injustice
or bias ?

LEGAL PROVISIONS

Section 401 in The Code Of Criminal Procedure,

1973
401. High Court' s Powers of revisions.
(1) In the case of any proceeding the record of which
has been called for by itself or Which otherwise comes
to its knowledge, the High Court may, in its discretion,
exercise any of the powers conferred on a Court of
Appeal by sections 386, 389, 390 and 391 or on a Court
of Session by section 307 and, when the Judges
composing the Court of revision are equally divided in
opinion, the case shall be disposed of in the manner
provided by section 392.

(2) No order under this section shall be made to the

prejudice of the accused or other person unless he has
had an opportunity of being heard either personally or
by pleader in his own defence.

(3) Nothing in this section shall be deemed to authorise

a High Court to convert a finding of acquittal into one
of conviction.

(4) Where under this Code an appeal lies and no appeal

is brought, no proceeding by way of revision shall be
entertained at the instance of the party who could have
appealed.

(5) Where under this Code tan appeal lies but an

application for revision has been made to the High
Court by any person and the High Court Is satisfied that
such application was made under the erroneous belief
that no appeal lies thereto and that it is necessary in the
interests of justice
so to do, the High Court may treat the application for
revision as a petition of appeal and deal with the same
accordingly.

Section 35 in THE ADVOCATES ACT, 1961

35. Punishment of advocates for misconduct.—

(1) Where on receipt of a complaint or otherwise a State

Bar Council has reason to believe that any advocate on
its roll has been guilty of professional or other
misconduct, it shall refer the case for disposal to its
disciplinary committee. 1[(1A) The State Bar Council
may, either of its own motion or on application made to
it by any person interested, withdraw a proceeding
pending before its disciplinary committee and direct the
inquiry to be made by any other disciplinary committee
of that State Bar Council.]

(2) The disciplinary committee of a State Bar Council

 2 shall fix a date for the hearing of the case and shall
cause a notice thereof to be given to the advocate
concerned and to the Advocate-General of the State.

(3) The disciplinary committee of a State Bar Council

after giving the advocate concerned and the Advocate-
General an opportunity of being heard, may make any
of the following orders, namely:—

(a) dismiss the complaint or, where the proceedings

were initiated at the instance of the State Bar Council,
direct that the proceedings be filed;

(b) reprimand the advocate;

(c) suspend the advocate from practice for such period

as it may deem fit;

(d) remove the name of the advocate from the State roll
of advocates.

(4) Where an advocate is suspended from practice under

clause (c) of sub-section (3), he shall, during the period
of suspension, be debarred from practising in any court
or before any authority or person in India.
(5) Where any notice is issued to the Advocate-General
under sub-section (2), the Advocate-General may
appear before the disciplinary committee of the State
Bar Council either in person or through any advocate
appearing on his behalf. 3[Explanation.—In this
section, 4[section 37 and section 38], the expressions
“Advocate-General” and Advocate-General of the
State” shall, in relation to the Union territory of Delhi,
mean the Additional Solicitor General of India

CONTENTION OF PETITIONER

Here in this case, the contention put forward by the

petitioner was the engagement of the public prosecutor
in this case were West Bengal was ruled by the
communist party of India at that time. The trial was a
farce supporters of the communist party of India
assembled around the court and shouted slogans against
the prosecution and supported the respondents who
were also a part of the ruling party.
There can be little doubt that the trial culminating in the
acquittal of respondent nos. 1 to 9 was appallingly
unfair so far as the prosecutions is concerned and was
heavily loaded in favour of respondent nos. 1 to 9. It is
difficult to understand how consistently with ethics of
the legal profession and fair play in the administration
of justice, the public prosecutor of Nadia could appear
on behalf of respondent nos. 1 to 9. The appearance of
the public prosecutor, Nadia on behalf of the defence
does lent support to the allegation of the appellant that
respondent nos. 1 to 9 were supported by the
Communist Party of India (Marxist) which was at the
material time the ruling party in the State of West
Bengal and this would naturally give rise to
apprehension in the minds of the witnesses that in
giving evidence against respondent nos. 1 to 9, they
would be not only incurring the displeasure of the
government but would also be fighting against it.
Moreover, it cannot be disputed that when the trial was
going on and the witnesses were giving evidence, there
were a large number of supporters of the Communist
Party (Marxist) who were allowed to assemble in the
court compound and who created a hostile atmosphere
by shouting against the prosecution and in favour of the
accused. Though the appellant and the complainant as
also the witnesses were intimated, no steps were taken
for according protection to them so that they may be
able to give evidence truly and fearlessly in proper
atmosphere consistent with the sanctity of the court.
The appellant argued that
the appearance of the public prosecutor as defence
lawyer was unprofessional and also the case was in
favour of the respondent proper trial was also not
conducted in the court and therefore the appellant filed
a petition to the high court regarding the unfair trial
conducted in the district court. And the high court
ordered the District court to handle the case properly
and since the witness where hostile and the accountant
where acquitted.

JUDGEMENT

The judgement is that , it is necessary in the interest of

justice that the trial should not be conducted in Krishna
Nagar because the atmosphere there appears to be
surcharged against the appellant and the complainant and
we would accordingly direct that the sessions case shall
stand transferred to the City Civil and Sessions Court,
Calcutta and it shall be tried by a City Civil and Sessions
Judge to be appointed by the Chief Judge of the City
Civil & Sessions Court. We would also direct that in
order that there should be fair yet effective prosecution,
the State Government should appoint a senior advocate
practising on the criminal side in the City Civil &
Sessions Court, Calcutta as Special Public Prosecutor in
consultation with the appellant and the complainant and
any suggestions made by the appellant or the
complainant shall be taken into consideration in making
such appointment. The trial shall commence within a
period of four months from today and as far as possible,
it shall be completed within a further period of three
months. Respondent Nos. 1 to 9 shall be arrested and
produced before the police before the Chief Judge of the
City Civil and Sessions Court and it will be for the
learned Chief Judge or any other Judge of the City Civil
& Sessions Court to whom the sessions case may be
assigned to decide whether bail should be granted to
respondent Nos. 1 to 9 or not..

MY OPINION
In my opinion we have no doubt that under these
circumstances the trial could not be regarded as fair and
just so far as the prosecution was concerned. The entire
course of events shows that the conduct of the trial was
heavily loaded in favour of respondent Nos. 1 to 9. The
trial must in the circumstances be held to be vitiated and
the acquittal of respondent Nos. 1 to 9 as a result of such
trial must be set aside. It is imperative that in order that
people may not lose faith in the administration of
criminal justice, no one should be allowed to subvert the
legal process. No citizen should go away with the feeling
that he could not get justice from the court because the
other side was socially, economically or politically
powerful and could manipulate the legal process. That
would be subversive of the rule of law.
 And here in this case The decision
reflects on the poor administration of criminal justice in
India. A partisan government may cause a breakdown of
the constitutional order. It also shows that unless the state
has an independent prosecution agency, the
administration of justice might suffer irreparably.. He is
not expected to be impartial but only fair and truthful.
The public prosecutor in India does not seem to be an
advocate of the state in the sense that the prosecutor has
to seek conviction at any cost. The prosecutor has to be
impartial, fair and truthful, not only as a public executive
but also because the prosecutor belongs to the
honourable profession of law, the ethics of which
demand these qualities. The facts in Sunil Kumar
Pal makes us to open our eyes to the realities.
‘Being an officer of the court, the prosecutor
is believed to represent the public interest and as such not
to seek conviction of a party by hook or crook.’ The
prosecutor is supposed to lead evidence favourable to the
accused for the benefit of the court, not conceal it to
secure a conviction. It is also believed that in a case of
withdrawal of prosecution, if the prosecutor makes an
independent decision to withdraw a case then the court
should accept this and permit withdrawal under section
321 of the Criminal Procedure Code (CrPC).
Every counsel appearing in a case
before the court is expected to be fair and truthful. He
must of course, champion the cause of his client as
efficiently and effectively as possible, but fairly
truthful.
I did not agree with the order passed
by the additional sessions judge acquitting the
respondents as it suffers from serious infirmity. The trial
conducted in the court was unfair and it was heavily in
the favour of the respondents who where supported by
the communist party which was the ruling party of West
Bengal at that time and the appearance of the public
prosecutor as defence lawyer lent more support to the
accused.
A public prosecutor is the person who works
for the state and are really ministers of justice whose job
is none other than assisting the state in the administration
of justice. They are not representatives of any party.
Their job is to assist the court by placing before the court
all relevant aspects of the case. They are not there to use
the innocents go to the gallows. They are also not there
to see the culprits escape conviction. But the pleader
engaged by a private person who is a defacto
complainant cannot be expected to be so impartial. Not
only that, it will be his endeavour to get the conviction
even if a conviction may not be possible .In India, there
are some special professional code of conduct which
should be followed by every advocates and also small
mistake in this court of conduct leads to professional
misconduct. In this case the appellant repeatedly
requested the Govt and the appropriate officers to
appoint a special public prosecutor to conduct the
prosecution. But there was no immediate response from
the Govt or any of these officers. And the appellant has
Addressed a Registered letter to Shri.Umapada
Bhattacharya, Public Prosecutor, Nadia from London
enquiring about the trial and after coming to Krishna
Nagar he also made enquiries from Shri Umapada
Bhattacharya but no reply was received by him though
the trial was to commence from 19th May 1978. The
appellant thereupon tried to meet the District Magistrate,
Nadia to find out who was going to conduct the case on
hehalf of the prosecution but the District Magistrate
refused to meet the appellant and referred him to the
Superintendent of Police, Nadia. The Superintendent of
Police advised the appellant to meet him on 23rd May
1978 though he knew fully well that the trial had been
adjourned only upto 22nd May, 1978 and was to
commence on that date. Mean while, however, the
District Magistrate issued an order dated 20th May 1978
appointing Shri S.N. Ganguly, advocate, Krishna Nagar
as Special Public Prosecutor and advised the Public
Prosecutor, Nadia to direct Shri Nil Kamal Sarkar,
Additional Public Prosecutor to assist Shri S. N.
Ganguly.
Surprisingly, when the trial opened on 22nd
May, 1978 Shri Umapada Bhattacharya, Nadia appeared
to defend respondent Nos. 1 to 9, though he was the
Public Prosecutor of Nadia district. Shri S.N. Ganguly
who appeared for the Prosecution as special Public
Prosecutor requested for an adjournment of the case in
order to enable him to prepare and get ready for the case,
but the Additional Sessions Judge trying the case granted
adjournment only for a day and the time granted being
wholly insufficient, Shri S.N. Ganguly returned the brief.
On the same night, that is, the night of 22nd May, 1978,
the District Magistrate, Nadia hurriedly addressed a letter
to Shri S.S. Sen, Additional Public Prosecutor who was
the junior of Shri Umapada Bhattacharya to conduct the
prosecution in place of Shri. S N Ganguly
Here in this case, it is evident
that there an absolute misconduct, injustice and bias
from the part of the public prosecutor and Additional
Sessions judge. And the public prosecutor has committed
a major professional misconduct according to Section 35
of the Advocates Act 1961 and response from the
Additional Sessions judge was so inhuman.