# Noor Alam v. State of U.P. Opp. Party

- **Citation:** (2023) 12 ILRA 769
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-29
- **Case number:** Criminal Misc. Third Bail Application No. 53159 of 2021
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/noor-alam-v-state-of-u-p-opp-party-49528
- **Pages:** 11

## Headnote

G.A.

Counsel of the Bar Council of Uttar
Pradesh:
Sri Ashok Kumar Tiwari

Civil Law - Constitution of India - Articles
14, 21 - Code of Criminal Procedure, 1973
- Section 309 - Advocates Act, 1961 -
Section 35 - Right to Speedy Trial - Bail
Jurisdiction - Lawyers' Strikes - Professional
Misconduct - Contempt of Court - Disciplinary
Action by Bar Council
The applicant, Noor Alam, filed a third bail
application in Case Crime No. 1223 of 2017
under Sections 147, 148, 120-B, 307 IPC, after
prolonged
incarceration
since
23.12.2017,
alleging violation of his right to a speedy trial
due to delays caused by repeated lawyers'
strikes, which prevented witness examination
despite court directions to expedite the trial.
The Bar Council of Uttar Pradesh condemned
such strikes as illegal. Held: (1) The bail
application was allowed due to inordinate trial
delays not attributable to the applicant, violating
his Article 21 right to a speedy trial, as no
prosecution witnesses were examined despite
multiple court dates. (2) Lawyers' strikes
impeding
witness
examination
constitute
professional misconduct under Section 35 of the
Advocates Act, 1961, and contempt of court,
impairing the criminal justice system and public
faith in courts, per Ex-Capt. Harish Uppal Vs
U.O.I.. (3) The court issued directions for trial
courts to report striking lawyers who prevent
witness examination to the Bar Council of Uttar
Pradesh for disciplinary action and to the High
Court for contempt proceedings. (4) The Bar
Council's stand against strikes, as per its
affidavit and letter dated 13.02.2023, was
upheld,
and
it
was
directed
to
ensure
compliance by Bar Associations. (5) The High
Court, as a constitutional court, exercises
composite
statutory
and
constitutional
jurisdiction in bail matters, ensuring fair justice
and protecting fundamental rights, per Ajeet
Chaudhary Vs St. of U.P.. (6) No separate
eviction proceedings were required, as judicial
adjudication in the writ satisfied due process,
per Thomas Cook (India) Limited Vs Hotel
Imperial. (7) The applicant, with no criminal
history and not a flight risk, was granted bail
with conditions to prevent evidence tampering
and ensure trial cooperation.

Case Law cited:

## Text

12 All. Nooor Alam Vs. State of U.P.
769
things, the nature of the weapon used and the
severity of the blows inflicted can be considered
to infer intent."

25. In Sumersinbh Umedsinh Rajput vs.
State of Gujarat reported in [(2007) 13 SCC
83] has held as under:-

"7. Dr. Deepak Kumar examined
himself as PW-5. He in his evidence proved the
medical report. In his deposition for all intent
and purport, he conceded the deficiencies in the
prosecution case vis-`-vis the report prepared
by him, stating;

"It is true that I have written history in
certificate, that history was recorded in Yaadi. If
vest has hole then shirt worn on that should have
hole on it or if Bushirt is torn then shirt also
should have hole on it or Bushirt worn is found
torn. It is true that looking at trouser. I say that one
circle is made on it with pencil. That is not torn
with bullet. It is true that looking at the trouser I
say that, it is not entry cut. It is true that if vest has
hole then two holes should have found, one is
entry and other exit hole. Otherwise, in case of
scratch, vest is found in similar torn manner. It is
true that I have not mentioned fire arm's marks. It
is true that if any injury is caused with fire arm or
bullet then the edge has burn mark. In present
case no burn injury is found. It is true that if
shooter fires from point blank range then black
colour is found near wound. When I saw injury of
patient, it did not have such black mark on that.
Shirt had black mark. It is true that scratch mark
can occur due to rubbing on rough substance."

10. According to PW-8, he came to
know about the firing on hearing of sound of fire.
He had immediately put his finger in the trigger of
the revolver and caught the appellant from his
wrist. If the finger of the complainant himself was
on the trigger of the revolver, it is difficult to
believe that the appellant was responsible for the
act complained of. According to him, seizure took
place at the place of occurrence but panch
witnesses contradicted him as according to them,
they were made to sign the seizure list only at the
police station.......

14. Even assuming that PW-8
received a fire arm injury which in the facts and
circumstances of the case does not appear to be
plausible, having regard to the positive
evidence of the prosecution as has been stated
by PW-4 Neelabhai it seems certain that a
scuffle had ensued. A case of Section 307 of the
Indian Penal Code, therefore, has not been
made out. .........."

26. Thus, in peculiar facts of this case, this
Court is of the opinion that prosecution has failed
to prove its case beyond reasonable doubt. For the
reasons aforesaid, the judgment and order dated
03.01.2000 passed by Special/Additional Sessions
Judge, Rae Bareli in S.T. No.181 of 1998 and 182
of 1998 arising out of Case Crime No.255 of
1997, Police Station Bachhrawan, District Rae
Bareli is set aside.

26. Appeal stands allowed. Bail bonds, if
any, are discharged. Accused is set free.
----------
(2023) 12 ILRA 769
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.11.2023

BEFORE

THE HON'BLE AJAY BHANOT, J.

Criminal Misc. Third Bail Application No.
53159 of 2021
With
Criminal Misc. Bail Application No. 14553 of
2022
With
Criminal Misc. Bail Application No. 49915 of
2022

Noor Alam ...Applicant
Versus
State of U.P. ...Opp. Party

Counsel for the Applicant:
770 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Irshad Ahmad, Sri Abhishek Kumar
Saroj, Sri Kumar Parikshit, Sri Nagendra
Bahadur Singh, Rageeni, Sri Rajesh Mishra,
Sri Ajay Kumar

Counsel for the Opp. Party:
G.A.

Counsel of the Bar Council of Uttar
Pradesh:
Sri Ashok Kumar Tiwari

Civil Law - Constitution of India - Articles
14, 21 - Code of Criminal Procedure, 1973
- Section 309 - Advocates Act, 1961 -
Section 35 - Right to Speedy Trial - Bail
Jurisdiction - Lawyers' Strikes - Professional
Misconduct - Contempt of Court - Disciplinary
Action by Bar Council
The applicant, Noor Alam, filed a third bail
application in Case Crime No. 1223 of 2017
under Sections 147, 148, 120-B, 307 IPC, after
prolonged
incarceration
since
23.12.2017,
alleging violation of his right to a speedy trial
due to delays caused by repeated lawyers'
strikes, which prevented witness examination
despite court directions to expedite the trial.
The Bar Council of Uttar Pradesh condemned
such strikes as illegal. Held: (1) The bail
application was allowed due to inordinate trial
delays not attributable to the applicant, violating
his Article 21 right to a speedy trial, as no
prosecution witnesses were examined despite
multiple court dates. (2) Lawyers' strikes
impeding
witness
examination
constitute
professional misconduct under Section 35 of the
Advocates Act, 1961, and contempt of court,
impairing the criminal justice system and public
faith in courts, per Ex-Capt. Harish Uppal Vs
U.O.I.. (3) The court issued directions for trial
courts to report striking lawyers who prevent
witness examination to the Bar Council of Uttar
Pradesh for disciplinary action and to the High
Court for contempt proceedings. (4) The Bar
Council's stand against strikes, as per its
affidavit and letter dated 13.02.2023, was
upheld,
and
it
was
directed
to
ensure
compliance by Bar Associations. (5) The High
Court, as a constitutional court, exercises
composite
statutory
and
constitutional
jurisdiction in bail matters, ensuring fair justice
and protecting fundamental rights, per Ajeet
Chaudhary Vs St. of U.P.. (6) No separate
eviction proceedings were required, as judicial
adjudication in the writ satisfied due process,
per Thomas Cook (India) Limited Vs Hotel
Imperial. (7) The applicant, with no criminal
history and not a flight risk, was granted bail
with conditions to prevent evidence tampering
and ensure trial cooperation.

Case Law cited:

1. Ajeet Chaudhary Vs St. of U.P. & anr., 2023
SCC OnLine All 135

2. Junaid Vs St. of U.P. & anr., 2023 SCC OnLine
All 156

3. Monish Vs St. of U.P. & ors., 2023 SCC
OnLine All 178

4. Anil Gaur @ Sonu Tomar Vs St. of U.P., 2023
SCC OnLine All 201

5. Maneesh Pathak Vs St. of U.P., 2023 SCC
OnLine All 223

6. Hussainara Khatoon & ors. (I) Vs Home
Secretary, St. of Bihar, (1980) 1 SCC 81

7. Satender Kumar Antil Vs Central Bureau of
Investigation & anr., (2022) 10 SCC 51

8. Ex-Capt. Harish Uppal Vs U.O.I.& anr., (2003)
2 SCC 45

(Delivered by Hon'ble Ajay Bhanot, J.)

1. The judgment is being structured in
the following conceptual framework to
facilitate the discussion:

I
Facts
II
Submissions of counsels
III
Bail Jurisdiction & Legal Issues
IV
Right to Speedy Trial and Bails
V
Strikes & the Law
VI
Role of lawyers, Courts and Bar
Council
VII
Directions
12 All. Nooor Alam Vs. State of U.P.
771
VIII
Order in Bail Application

2. Heard Shri Kumar Parikshit,
learned counsel assisted by Shri Ajay
Kumar, learned counsel for the applicant,
Shri Ashok Kumar Tiwari, learned counsel
for the Bar Council of Uttar Pradesh and
Shri Paritosh Kumar Malviya, learned
A.G.A.-I.

I. Facts

3. Affidavit filed by Shri Ashok
Kumar Tiwari, learned counsel for the Bar
Council of Uttar Pradesh on 15.02.2023 is
taken in the record.

4. This is the third bail application.
While rejecting the first bail application
being Criminal Misc. Bail Application
No.23828 of 2018 on 27.06.2018, this
Court issued the following directions:

"It is expected from the learned
trial court to gear up the trial and made
necessary endeavour to conclude the trial
within a period of one year from the
production of certified copy of this order.
Provided the applicant would render fullest
co-operation in early conclusion of trial.

Office is directed to transmit the
copy of this order to concern Court within
month from the production of certified copy
of
this
order
for
the
necessary
compliance."

While
rejecting
the
second
bail
application being Criminal Misc. Bail
Application
No.27291
of
2019
on
02.09.2020 the learned trial court was
directed to give priority to the matter. The
trial has not concluded and is dragging on
despite directions of this Court. The
applicant was in jail since 23.12.2017.

5. The status report sent by the
learned trial court states that the lawyers
repeatedly struck work. The striking
lawyers prevented the examination of
witnesses who had appeared before the
learned trial court on the dates fixed. Nonexamination of the said witnesses on
various dates derailed the court process and
delayed the trial. Consequently the order of
this Court was not complied with.

6. Similarly the trial courts in the
other connected bail applications and also
in
Criminal
Misc.
Bail
Application
No.9077
of
2023
(Amitabh
Kumar
Srivastava @ Amitabh Srivastava v. State
of U.P.) have also sent status reports which
record that the trials have been delayed
since the witnesses could not be examined
as the lawyers had struck work on a regular
basis. Consequently the orders of this Court
to conclude the trials in expeditious time
frame also could not be complied with.

II. Submissions of counsels:

7. Shri Kumar Parikshit, learned
counsel assisted by Shri Ajay Kumar,
learned counsel, Shri Ajay Kumar Pathak,
learned counsel and Shri Ray Sahab Yadav,
learned counsels for the applicants made
the following submissions on the common
issue
arising
in
the
connected
bail
applications:

I. The report sent by the learned
trial courts respectively disclose that the
delays in the trials are occasioned by
repeated strikes by lawyers. The striking
lawyers have declined to examine or
prevented the examination of witnesses.

II. The applicants have been
cooperating in the trial proceedings.

III. As a result of the strikes by
lawyers
the
applicants
are
suffering
772 INDIAN LAW REPORTS ALLAHABAD SERIES
prolonged incarceration and their right to
speedy trial too has been violated.

IV. The Constitutional Courts
have consistently held that strikes are
illegal and have also outlined the duties and
obligations of counsels towards their clients
.

8. Shri Ashok Kumar Tiwari, learned
counsel for the Bar Council of Uttar
Pradesh does not dispute the fact that
Constitutional Courts have held that
lawyers strikes are illegal. Bar Council of
Uttar Pradesh has taken a stand which is
consistent with the holdings of the
Constitutional Courts.

9. Learned counsel for the Bar
Council of Uttar Pradesh reiterated the
stand of the Bar Council of Uttar Pradesh
as asserted in its affidavit, that the Bar
Council of Uttar Pradesh does not support
the acts of lawyers to prevent examination
of witnesses at trials on the pretext of
strikes.

10. Shri Paritosh Kumar Malviya,
learned AGA-I for the State of U.P.
submits that the actions of striking lawyers
who prevent examination of witnesses is
not supported by the State Government.
Infact such lawyers impair the criminal
justice system and the cause of the
prosecution by delaying the trial.

III. Bail Jurisdiction & Legal Issues:

11.

While
sitting
in
bail
determination, this Court is not denuded of
its constitutional status. The High Court is
a court of record and a constitutional court
irrespective of the nomenclature of the
jurisdiction it is exercising. Needless to add
that the High Court always exercises its
jurisdiction as per law. The right of bail has
statutory origins but can never be isolated
from its constitutional moorings. The right
of bail is irretrievably embedded in the
fundamental right of liberty enshrined
under Article 21 of the Constitution of
India by holdings of constitutional courts.

The High Court always possesses the
necessary powers to pass appropriate orders
for
dispensing
fair
justice
in
bail
jurisdiction and to realize the fundamental
rights of an accused. While deciding bail
applications the High Court exercises a
composite jurisdiction of statutory powers
and constitutional obligations. At times
while hearing bails various legal issues
which
directly
impact
the
fair
administration of justice in bail jurisdiction
arise for determination before this Court.
The Court cannot neglect consideration of
such issues when they arise in the bail
jurisdiction. Refusal to decide such issues
which are essential for fair administration
of justice in bail jurisdiction would amount
to abdication of constitutional obligations
of this Court in the facts of these cases.
[See: Ajeet Chaudhary v. State of U.P.
and another1, Junaid v. State of U.P. and
another2, Monish v.State of U.P. and
others3, Anil Gaur @ Sonu Tomar v.
State of U.P.4 & Maneesh Pathak v.
State of U.P.5 for right of bail & scope of
bail jurisdiction]

IV. Right to Speedy Trial & Bails

12. The right to a speedy trial has
been exalted as a fundamental right in
constitutional law. Hussainara Khatoon
and others (I) v. Home Secretary, State
of Bihar6 recognized the right of speedy
trial of a prisoners flowing from Article 21
of the Constitution of India "to be implicit
in the broad sweep" of Article 21 of the
Constitution. The Courts while deciding
12 All. Nooor Alam Vs. State of U.P.
773
bail applications are also factor in the
period spent in the jail and status of the
trial. [See:Satender Kumar Antil v.
Central Bureau of Investigation and
another7]

13. The legislature was also cognizant
of the need to continue the trial proceedings
if necessary on a day to day basis until all
witnesses in attendance has been examined.
Section 309 of the Cr.P.C. may be
extracted with profit:

"309. Power to postpone or
adjourn proceedings-(1) In every inquiry
or trial, the proceedings shall be held as
expeditiously as possible, and in particular,
when the examination of witnesses has
once begun, the same shall be continued
from day to day until all the witnesses in
attendance have been examined, unless the
Court finds the adjournment of the same
beyond the following day to be necessary
for reasons to be recorded.

(2). If the Court, after taking
cognizance
of
an
offence,
or
commencement of trial, finds it necessary
or
advisable
to
postpone
the
commencement of, or adjourn, any inquiry
or trial, it may, from time to time, for
reasons to be recorded, postpone or adjourn
the same on such terms as it thinks fit, for
such time as it considers reasonable, and
may by a warrant remand the accused if in
custody: Provided that no Magistrate shall
remand an accused person to custody under
this section for a term exceeding fifteen
days at a time: Provided further that when
witnesses
are
in
attendance,
no
adjournment or postponement shall be
granted, without examining them, except
for special reasons to be recorded in
writing:

Provided
also
that
no
adjournment shall be granted for the
purpose only of enabling the accused
person to show cause against the sentence
proposed to be imposed on him.]

Explanation
1.-
If
sufficient
evidence has been obtained to raise a
suspicion that the accused may have
committed an offence, and it appears likely
that further evidence may be obtained by a
remand, this is a reasonable cause for a
remand.

Explanation 2.- The terms on
which an adjournment or postponement
may be granted include, in appropriate
cases, the payment of costs by the
prosecution or the accused."(emphasis
supplied)

14. In the facts of this case (including
connected bails), the administration of fair
justice in bail jurisdiction is being impeded
on account of delay in trials caused by
repeated strikes by lawyers. The striking
lawyers either declined or prevented the
examination of witnesses thus throwing the
trial process off the rails. All this even as
the accused remains incarcerated in jail
after rejection of his bail application. In
these facts a response was called from the
Bar Council of Uttar Pradesh to deal with
the persisting problem of non examination
of
witnesses
and
consequent
delays
occasioned by strike calls made by various
lawyers groups.

V. Strikes & the Law

15. Strikes by lawyers have emerged
as a major menace in the judicial system.
Striking lawyers impede the process of the
courts and threaten the rule of law.
Common man bears the brunt as usual.
Witnesses are harassed as they have to
repeatedly attend the court proceedings
with no end in sight. Strikes by lawyers
delay trials indefinitely and denude the
774 INDIAN LAW REPORTS ALLAHABAD SERIES
capacity of the courts to administer fair
justice in bail jurisdiction. Besides they
also violate FRs of accused persons to a
speedy trial. In summation strikes by
lawyers impair the credibility of the
process of the court and shake the faith of
the common man in the judicial system to
uphold the law and dispense justice.

16. The issue of strikes by lawyers
with boycotts by the Bar Associations or
the Bar Councils has often engaged the
attention of constitutional courts. The law
has set its face against the strikes by
advocates and Bar Associations or the Bar
Councils. Holdings of constitutional courts
explicitly prohibit strikes by lawyers, and
unequivocally pronounce that the strikes
interfere with administration of justice.

17. The discussion has the benefit of
good authorities in point. The duties of
advocates and the issue of strikes which
interfere with trial proceedings arose for
consideration in Ex-Capt. Harish Uppal v.
Union of India and another8. The
Supreme Court in Ex-Capt. Harish Uppal
(supra) while holding that a lawyer who
has accepted a brief cannot decline to
attend court even when there is a call for
strike by the Bar Associations or the Bar
Councils laid down the law in following
terms:

"20...... It is also settled law that
a lawyer who has accepted a brief cannot
refuse to attend Court because a boycott
call is given by the Bar Association. It is
settled law that it is unprofessional as well
as unbecoming for a lawyer who has
accepted a brief to refuse to attend Court
even in pursuance of a call for strike or
boycott by the Bar Association or the Bar
Council. It is settled law that Courts are
under an obligation to hear and decide
cases brought before it and cannot adjourn
matters merely because lawyers are on
strike. The law is that it is the duty and
obligation of Courts to go on with matters
or otherwise it would tantamount to
becoming a privy to the strike."

18. Ex-Capt. Harish Uppal (supra)
further cautioned that the strikes interfere
with the administration of justice by stating
:

"21. It must also be remembered
that an Advocate is an officer of the Court
and enjoys special status in society.
Advocates have obligations and duties to
ensure smooth functioning of the Court.
They owe a duty to their client. Strikes
interfere with administration of justice.
They cannot thus disrupt Court proceedings
and put interest of their clients in
jeopardy."

19. Examining the right of an
advocate of appearance in courts and the
supervisory power of constitutional courts
over such rights in Ex-Capt. Harish Uppal
(supra) the Supreme Court set forth the
law as under:

"34. One last thing which must be
mentioned is that the right of appearance in
Courts is still within the control and
jurisdiction of Courts. Section 30 of the
Advocates Act has not been brought into
force and rightly so. Control of conduct in
Court can only be within the domain of
Courts.
Thus Article
145
of
the
Constitution of India gives to the Supreme
Court and Section 34 of the Advocates Act
gives to the High Court power to frame
rules including rules regarding condition on
which a person (including an Advocate)
can practice in the Supreme Court and/or in
the High Court and Courts subordinate
12 All. Nooor Alam Vs. State of U.P.
775
thereto. Many Courts have framed rules in
this behalf. Such a rule would be valid and
binding on all. Let the Bar take note that
unless self restraint is exercised, Courts
may now have to consider framing specific
rules
debarring
Advocates,
guilty
of
contempt
and/or
unprofessional
or
unbecoming
conduct,
from
appearing
before the Courts. Such a rule if framed
would not have anything to do with the
disciplinary jurisdiction of Bar Councils.
But the right to appear and conduct cases in
the Court is a matter on which the Court
must and does have major supervisory and
controlling power. Hence Courts cannot be
and are not divested of control or
supervision of conduct in Court merely
because it may involve the right of an
advocate. A rule can stipulate that a person
who has committed contempt of Court or
has behaved unprofessionally and in an
unbecoming manner will not have the right
to continue to appear and plead and
conduct cases in Courts."

20. Finally adverting to the right of
the High Courts to frame rules and
conditions on which an advocate shall be
permitted to practice in Courts, Ex-Capt.
Harish Uppal (supra) held:

"34.
....Courts
of
law
are
structured in such a design as to evoke
respect and reverence to the majesty of law
and justice. The machinery for dispensation
of justice according to law is operated by
the Court. Proceedings inside the Courts
are always expected to be held in a
dignified and orderly manner. The very
sight of an advocate, who is guilty of
contempt of Court or of unbecoming or
unprofessional conduct, standing in the
court would erode the dignity of the Court
and even corrode the majesty of it besides
impairing the confidence of the public in
the efficacy of the institution of the Courts.
The power to frame such rules should not
be confused with the right to practise law.
While the Bar Council can exercise control
over the latter, the Courts are in control of
the former. Similarly Section 34 of the
Advocates Act empowers High Courts to
frame
rules,
inter-alia
to
lay
down
conditions on which an Advocate shall be
permitted to practice in Courts. Article 145
of the Constitution of India and Section 34
of the Advocates Act clearly show that
there is no absolute right to an Advocate to
appear in a Court. An Advocate appears in
a Court subject to such conditions as are
laid down by the Court."

21. Relying on its observations in
Krishnakant Tamrakar v. The State of
Madhya Pradesh9the Supreme Court in
District
Bar
Association,
Dehradun
through
its
Secretary
v.
Ishwar
Shandilya and others10 observed that
strikes were a principal reason for delay in
trials and deny access to speedy justice and
expounded the law thus:

"4. While considering the issue of
delay/speedy
disposal,
in
case
of
Krishnakant Tamrakar (supra), this Court
had the occasion to consider how uncalled
for frequent strikes obstructs the access to
justice and what steps are required to
remedy the situation. In the aforesaid
decision, it is observed by this Court that
access to speedy justice is a part of the
fundamental rights under Articles 14 and
21 of the Constitution of India. This Court
was of the opinion that one of the
reasons/root cause for delay is uncalled for
strikes by the lawyers. In the aforesaid
decision, this Court also took note of 266
the Law Commission Report, in which
there was a reference to the strikes by the
lawyers in the Dehradun and Haridwar
776 INDIAN LAW REPORTS ALLAHABAD SERIES
districts itself. In the aforesaid decision,
this
Court
also
took
note
of
the
recommendations
made
by
the
Law
Commission. This Court further observed
that since the strikes are in violation of the
law laid down by this Court, the
same amounts to contempt and at least the
office bearers of the Associations who give
call for the strikes cannot disown their
liability for contempt. In paragraphs 41 to
50, this Court held as under:

"41. We may also deal with
another important aspect of speedy justice.
It is well known that at some places there
are frequent strikes, seriously obstructing
access to justice. Even cases of persons
languishing in custody are delayed on that
account. By every strike, irreversible
damage is suffered by the judicial system,
particularly consumers of justice. They are
denied access to justice. Taxpayers' money
is lost on account of judicial and public
time being lost. Nobody is accountable for
such loss and harassment."

VI. Role of lawyers, Courts and Bar
Council

22. Liberties assured to all citizens by
the Constitution are not self fulfilling and
rule of law is not self perpetuating.

23. Script of the Constitution alone
does not assure the survival of liberty.
Tireless vigilance by citizens and constant
activism by lawyers are the true guarantors
of the success of liberty and survival of rule
of law in the country.

24.

Liberty
assured
by
the
Constitution will endure only if justice
promised in the Constitution is secured.

25. Lawyers were at the frontline
ranks in the struggle for freedom, and had a
significant role in the drafting of the
Constitution. Lawyers are the foremost
sentinels of liberty guaranteed under the
Constitution.

26. The Bar Council of Uttar Pradesh
under the Advocates Act is the disciplinary
body which investigates the acts of
professional misconduct alleged against
lawyers and is duly authorized to inflict
appropriate punishment under the statute.
The Bar Council of Uttar Pradesh is also
the custodian of the ethics and morality of
the lawyers' fraternity.

27. Lawyers who strike work and
impede the process of court by failing to
examine or preventing the examination of a
witness who is present in the court commit
professional misconduct. The Bar Council
is duly empowered under Section 35 of the
Advocates Act to take appropriate action
for misconduct.

28. Section 35 of the Advocates Act
reads as under:

"Section 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
12 All. Nooor Alam Vs. State of U.P.
777
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 AdvocateGeneral 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.]"

29. The impediments caused by
striking lawyers in criminal trials is in fact
a constant feature in the State of Uttar
Pradesh. Lawyers who in support of strike
calls decline to examine or prevent the
examination of witnesses before the learned
trial court in criminal cases create a major
bottleneck which is a cause for delays in
criminal trials. Since the problem is of a
recurring nature this Court directed the Bar
Council of Uttar Pradesh to clear its stand
on the conduct of striking counsels who
prevent cross examination of the witnesses
when criminal trials are on foot.

30. The stand of the Bar Council of
Uttar Pradesh as depicted in the counter
affidavit is extracted hereunder:

"9. That in continuance of the
aforesaid resolution dated 21.01.2023, the
Chairman of Bar Council of Uttar Pradesh,
Prayagraj has written a letter dated
13.02.2023 to Adhyaksha/Mantri of all Bar
Association of Uttar Pradesh, directing the
office bearers that if on any protest day if in
any
case
the
witnesses
have
been
summoned by the Court, then concerned
advocates in the case may not be affected
by the protest day and the concerned
Advocate may not be prohibited from
adducing evidences of the witnesses or
cross examining any witness. Under the
circumstances, in any protest day the
evidence/cross-examination
may
be
permitted to be done, so that judicial may
not be interfered in the judicial work due to
protest organized by the Bar Association."

"सेिा में,

अध्यक्ष/मोंत्री,

समस्त बार एसोवसएशन,

उिर प्रदेश।

महोदय,

उिर प्रदेश की सभी वजला न्यायालय,
वजला कलेक्ट्रेि, कवमश्री, िैक्स, तहसील
न्यायालय एिों समस्त विरब्यूनल
के बार
एसोवसएशन
के
अध्यक्ष/सवचि
एिों
अन्य
पदावधकाररयोों को वनदेवशत वकया जाता है वक
778 INDIAN LAW REPORTS ALLAHABAD SERIES
विरोध वदिस के वदन वकसी भी िाद में अगर
कोई गिाह, गिाही/वजरह हेतु सम्मन वकया गया
है, तो उस िाद से सम्बस्ित अवधिक्ता को
गिाही हेतु न रोकें एिों न ही उक्त िाद में वकसी
भी विरोध वदिस का प्रभाि डालें। साथ ही साथ
यह भी वनदेवशत वकया जाता है वक उपरोक्त
वतवथ पर आये हुए गिाह का गिाही/वजरह वकसी
भी पररस्स्थवत में सम्पन्न करायें, तावक सम्बस्ित
िाद में वकसी भी प्रकार का न्यावयक अिरोध
उत्पन्न न हो।

वदनाोंक 13.02.2023

भिदीय

(पाोंचू राम मौयथ)

अध्यक्ष

31. The Bar Council of Uttar Pradesh
has acquitted itself with utmost credit by
taking an explicit stand in favour of
upholding the law and against striking
lawyers who prevent examination of
witnesses when the criminal trials are
underway. The Bar Council of Uttar
Pradesh has effectively restrained striking
lawyers from interfering in the examination
of witnesses in criminal trials. Proper
implementation of the stand of the Bar
Council of U.P. will save the criminal trial
process from the scourge of strikes.

VII. Directions:

32. In the wake of the pronouncements
of constitutional courts discussed above and
the stand of the Bar Council of Uttar Pradesh
reproduced earlier, this Court issues the
following directions:

(I). Any act of a counsel to prevent
examination of a witness or refusal of a
counsel to examine a witness before the
learned trial court on account of a strike call
is an act of professional misconduct and also
constitutes contempt of court.

(II). In case examination of a
witness is prevented by striking lawyers or
striking lawyers refuse to examine the
witness, the learned trial court shall make its
finding in that regard. The learned trial court
shall also record the names of the lawyers
who have declined to examine the witnesses
or have prevented the examination of
witnesses pursuant to the strike call. The
learned trial court shall send the report to the
Bar Council of Uttar Pradesh for initiation
of disciplinary action and to the Registrar
General of this Court for institution of
contempt
proceedings
against
erring
lawyers.

(III). Bar Council of Uttar Pradesh
shall
promptly
deal
with
the
reports/complaints sent by the learned trial
courts and take appropriate disciplinary
action against the erring lawyers as per law.

(IV). Copy of this order be
circulated in all courts of Uttar Pradesh, and
shall also be served upon the Bar Council of
Uttar Pradesh and to all Bar Associations in
the district judgeships for compliance.

(V). The Bar Council of Uttar
Pradesh shall also issue appropriate directions
to all Bar Associations in the State of Uttar
Pradesh for compliance of this judgement.

VIII. Order in Bail Application:

33. By means of the third bail
application, the applicant has prayed to be
enlarged on bail in Case Crime No.1223 of
2017 at Police Station-Mariyahun, DistrictJaunpur under Sections 147, 148, 120-B,
307 IPC.

34. The first and second bail
applications of the applicant was rejected
by
this
Court
on
27.06.2018
and
02.09.2020.
12 All. Bhawani Prasad Vs. Sheo Kumar & Ors.
779

35. The interim bail was granted to
the applicant by this Court on 01.03.2023.

36. The following arguments made by
Shri Kumar Parikshit, learned counsel
assisted by Shri Ajay Kumar, learned
counsel on behalf of the applicant, which
could not be satisfactorily refuted by Shri
Paritosh Kumar Malviya, learned A.G.A.-I
for the State from the record, entitle the
applicant for grant of bail:

(i). The applicant is in jail since
23.12.2017. The applicant is a law abiding
citizen who cooperated in the investigations
and has joined the trial proceedings.

(ii). The trial court in its report
records that the prosecution proposes to
examine seven witnesses. However, not a
single witness has been examined till date.

(iii). The P.W. 1 has not appeared
before the learned trial on various previous
dates including 08.12.2022, 21.12.2022,
10.01.2023, 24.01.2023 and 06.02.2023.

(iv). The warrants have been
issued against the prosecution witnesses to
ensure his presence before the learned trial
court.

(v). The trial is moving at a
snail's pace and shows no signs of an early
conclusion.

(vi). Inordinate delay in the trial
will lead to indefinite imprisonment of the
applicant.

(vii).
The
applicant
is
not
responsible for the delay in the trial.

(viii). Right of the applicant to a
speedy trial has been violated.

(ix). The applicant does not have
any criminal history apart from the instant
case.

(x). The applicant is not a flight
risk. The applicant being a law abiding
citizen has always cooperated with the
investigation and undertakes to cooperate
with the court proceedings. There is no
possibility of his influencing witnesses,
tampering
with
the
evidence
or
reoffending.

37. In the light of the preceding
discussion
and
without
making
any
observations on the merits of the case, the
bail is allowed.

38. Let the applicant-Noor Alam be
released on bail in the aforesaid case crime
number, on furnishing a personal bond and
two sureties each in the like amount to the
satisfaction of the court below. The
following conditions be imposed in the
interest of justice:-

(i) The applicant will not tamper
with the evidence or influence any witness
during the trial.

(ii) The applicant will appear
before the trial court on the date fixed,
unless personal presence is exempted.
----------
(2023) 12 ILRA 779
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.12.2023

BEFORE

THE HON'BLE JASPREET SINGH, J.

Second Appeal No. 132 of 1988

Bhawani Prasad ...Appellant
Versus
Sheo Kumar & Ors. ...Respondents

Counsel for the Appellant:
H.S. Sahai, A.S. Chaudhary, P.V. Chaudhary, U.S.
Sahai

Counsel for the Respondents:
S.K. Mehrotra, Arun Prakash Shukla, Ishwar Dutt
Shukla, Vijai Bahadur Verma