# Shivanshu Mudgal v. State of U.P. & Anr

- **Citation:** (2023) 8 ILRA 33
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-06-12
- **Case number:** Application U/S 482 No. 15925 of 2023
- **Bench:** Saurabh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shivanshu-mudgal-v-state-of-u-p-anr-50629
- **Pages:** 7

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections 147, 148, 149, 302, 307 & 506 -
The U.P. Advocates Welfare Fund Act,
1974 - Section 9(1) - Welfare stamp on
Vakalatnama - In case the Welfare Stamp
referred to in sub-section (1) is not affixed
on the Vakalatnama or is not filed by any
Advocate, the Court shall not permit such
Advocate for further proceeding in that
case.(Para - 23)

Vakalatnama filed by Opposite party no.2 -
Advocate Welfare Ticket with required stamp
not affixed to the Vakalatnama - Advocate not
provided with any case documents or instructed
to appear on behalf of the opposing party
during trial - did not oppose accused's bail
application or present arguments on behalf of
opposing party - application for withdrawal of
Vakalatnama
-
claiming
it
defective
and
incomplete -
 applicant filed an application in
Court - counsel he hired had submitted an
application that had not been decided - opposite
party filed a Vakalatnama, misleading the
Advocates by not affixing the Advocate Welfare
Ticket - application was kept pending without
any orders - trial court failed to recognize the
U.P. Advocates Welfare Fund Act, 1974 - which
mandates Advocates to affix a Welfare Stamp of
ten rupees to their Vakalatnama - no court or
authority
can
receive
it
without
this
stamp.(Para -2 to 12)

HELD:- In absence of Advocate Welfare Stamp
from
the
Vakalatnama
which
has
been
submitted by the opposite party no.2 before the
learned trial court, no counsel who put his
signatures over the same, is permitted to
proceed in the matter. Trial court had limited
time to comment on the conduct of an Advocate
during
the
application
for
withdrawal
of
Vakalatnama, as the same application had
already been approved by the Bar Council of
U.P., making the matter out of the judge's
jurisdiction. Order passed by trial court quashed
and set aside. (Para -23,27,28)

Application u/s 482 Cr.P.C. allowed. (E-7)

List of Cases cited:-

S.C.B.A. Vs U.O.I. & anr. , Writ Petition (Civil)
200 of 1995

## Text

8 All. Shivanshu Mudgal Vs. State of U.P. & Anr.
33
same do not disclose the commission of any
offence and make out a case against the
accused.

(4) Where, the allegations in the
FIR do not constitute a cognizable offence
but constitute only a non-cognizable
offence, no investigation is permitted by a
police officer without an order of a
Magistrate as contemplated under Section
155(2) of the Code.

(5) Where the allegations made in
the FIR or complaint are so absurd and
inherently improbable on the basis of which
no prudent person can ever reach a just
conclusion that there is sufficient ground for
proceeding against the accused.

(6) Where there is an express legal
bar engrafted in any of the provisions of the
Code or the concerned Act (under which a
criminal proceeding is instituted) to the
institution
and
continuance
of
the
proceedings and/or where there is a specific
provision in the Code or the concerned Act,
providing
efficacious
redress
for
the
grievance of the aggrieved party.

(7) Where a criminal proceeding is
manifestly attended with mala fide and/or
where the proceeding is maliciously instituted
with an ulterior motive for wreaking
vengeance on the accused and with a view to
spite him due to private and personal
grudge."

40. I am of the considered view that the
present case does not fall in any of the
aforesaid categories. Moreover, the Hon'ble
Supreme Court had added a note of caution in
Bhajan Lal (Supra) in the following words:

"103. We also give a note of
caution to the effect that the power of
quashing a criminal proceeding should be
exercised
very
sparingly
and
with
circumspection and that too in the rarest of
rare cases; that the court will not be justified
in embarking upon an enquiry as to the
reliability or genuineness or otherwise of the
allegations made in the FIR or the complaint
and that the extraordinary or inherent powers
do not confer an arbitrary jurisdiction on the
court to act according to its whim or
caprice."

41. In view of the foregoing discussion,
I find no merit in the application under
Section 482 Cr.P.C. filed by the applicants.
Accordingly, the application is dismissed.

42. Before parting with the case, I deem
it appropriate to observe that the date
mentioned by the Presiding Officer of the
Revisional Court in the revisional order is
12.05.2022 whereas the date printed on the
order is 12.05.2023. The entries made by the
copying official on the certified copy filed
with the application shows the application for
obtaining a certified copy of the order was
filed on 15.05.2023 but the Head Copyist has
signed the certified copy on 12.05.2023, i.e.
three days prior to filing of the application for
obtaining a certified copy of the order. This
order should be communicated to the District
Judge, Pratapgarh so that he may look into by
the matter and take appropriate steps to avoid
recurrence of such mistakes.
----------
(2023) 8 ILRA 33
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.06.2023

BEFORE

THE HON'BLE SAURABH SRIVASTAVA, J.

Application U/S 482 No. 15925 of 2023

Shivanshu Mudgal ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
34 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Ajay Kumar Pandey, Sri Satish Trivedi,
Senior Counsel

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections 147, 148, 149, 302, 307 & 506 -
The U.P. Advocates Welfare Fund Act,
1974 - Section 9(1) - Welfare stamp on
Vakalatnama - In case the Welfare Stamp
referred to in sub-section (1) is not affixed
on the Vakalatnama or is not filed by any
Advocate, the Court shall not permit such
Advocate for further proceeding in that
case.(Para - 23)

Vakalatnama filed by Opposite party no.2 -
Advocate Welfare Ticket with required stamp
not affixed to the Vakalatnama - Advocate not
provided with any case documents or instructed
to appear on behalf of the opposing party
during trial - did not oppose accused's bail
application or present arguments on behalf of
opposing party - application for withdrawal of
Vakalatnama
-
claiming
it
defective
and
incomplete -
 applicant filed an application in
Court - counsel he hired had submitted an
application that had not been decided - opposite
party filed a Vakalatnama, misleading the
Advocates by not affixing the Advocate Welfare
Ticket - application was kept pending without
any orders - trial court failed to recognize the
U.P. Advocates Welfare Fund Act, 1974 - which
mandates Advocates to affix a Welfare Stamp of
ten rupees to their Vakalatnama - no court or
authority
can
receive
it
without
this
stamp.(Para -2 to 12)

HELD:- In absence of Advocate Welfare Stamp
from
the
Vakalatnama
which
has
been
submitted by the opposite party no.2 before the
learned trial court, no counsel who put his
signatures over the same, is permitted to
proceed in the matter. Trial court had limited
time to comment on the conduct of an Advocate
during
the
application
for
withdrawal
of
Vakalatnama, as the same application had
already been approved by the Bar Council of
U.P., making the matter out of the judge's
jurisdiction. Order passed by trial court quashed
and set aside. (Para -23,27,28)

Application u/s 482 Cr.P.C. allowed. (E-7)

List of Cases cited:-

S.C.B.A. Vs U.O.I. & anr. , Writ Petition (Civil)
200 of 1995

(Delivered by Hon'ble Saurabh Srivastava, J.)

1. Heard Sri Satish Trivedi, learned
Senior Counsel assisted by Sri Ajay Kumar
Pandey, learned counsel for the applicant
and Sri Karunakar Singh, learned AGA.

2. The present application under
Section 482 Cr.P.C. has been filed with a
prayer to quash the impugned order dated
05.04.2023 passed by the learned Sessions
Judge, Agra in Sessions Trial No.235 of
2022 (State vs. Shivanshu Mudgal and
others), arising out of Case Crime No.478
of 2021, under Sections 147, 148, 149, 302,
307, 506 IPC at Police Station Shahganj,
District Agra.

3. It is the case of the applicant that a
first information report has been lodged on
03.11.2021, under Sections 147, 148, 149,
302, 307 IPC at Police Station Shahganj,
District Agra in Case Crime No.478 of
2021 by the first informant against 11
accused persons pertaining to the alleged
occurrence dated 02.11.2021.

4. On dated 07.01.2022, the opposite
party no.2 filed his Vakalatnama to
privately oppose the defense in the sessions
trial by engaging five Advocates, who are
all leading Senior Advocates of the District
Court at Agra, two Vakalatnama were filed
on the same date wherein a total of ten
Advocates were shown to be engaged by
the
opposite
party
no.2,
again
on
8 All. Shivanshu Mudgal Vs. State of U.P. & Anr.
35
22.04.2022 and 20.05.2022, two more
Vakalatnama were filed on behalf of the
opposite
party
no.2
showing
the
engagement of Sri Ashok Kumar Gupta, Sri
Shishupal Singh Yadav and Sri Naresh Pal
Singh Yadav as his Advocates, opposite
party no.2 had virtually engaged the entire
Criminal Bar of the District Court at Agra,
most of the said Advocates being the
leading criminal law practitioner of the
District Court at Agra.

5. The very relevant aspect as
highlighted
by
the
Senior
Counsel
appearing on behalf of the applicant that in
the
aforesaid
Vakalatnama
dated
07.01.2022, the Advocate Welfare Ticket
with the required stamp was not affixed, in
which out the five Advocates, the name of
Sri Arvind Kumar Sharma, Advocate was
also there.

6. The Vakalatnama as submitted by
the opposite party no.2 only got the
signatures
of
the
Advocate
on
the
Vakalatnama but sofar as Sri Arvind Kumar
Sharma,
Advocate
is
concerned,
no
documents pertaining to the case were
provided to him by the opposite party no.2
and neither he was ever instructed to appear
on behalf of the opposite party no.2 during
the trial.

7.

In
absence
of
complete
instructions, Sri Arvind Kumar Sharma,
Advocate
neither
opposed
the
bail
application of the accused and nor did he
advanced any arguments on behalf of the
opposite party no.2, moreover, Sri Arvind
Kumar Sharma, Advocate never got any
instructions from the opposite party no.2
inasmuch as neither the facts of the case
was discussed by the opposite party no.2
with the aforesaid Advocate, nor any
documents pertaining to the case were
given by the opposite party no.2 and as
such, Sri Arvind Kumar Sharma, Advocate
who never appeared on behalf of the
opposite party no.2 on any date fixed by the
learned court concerned at the time of
hearing of the trial, only he was engaged on
dated 13.02.2023 through Vakalatnama
numbered as 47-B on behalf of the
applicant by Sri Arvind Kumar Sharma,
Advocate
and
Sri
Manish
Pathak,
Advocate.

8. The co-accused person, namely,
Syed Zafar Rizvi @ Shanu also engaged
Sri Arvind Kumar Sharma, Advocate along
with Sri Manish Pathak, Advocate as their
counsels before the Sessions Trial No.235
of
2022
through
Vakalatnama
dated
03.03.2023 and the said Vakalatnama was
numbered as 56-B.

9. The Vakalatnama dated 07.01.2021
as filed by the opposite party no.2 was not
only defective but also Sri Arvind Kumar
Sharma, Advocate was not being given
complete instructions by way of any
documents relevant to the case by the
opposite party no.2, Sri Arvind Kumar
Sharma, Advocate submitted an application
on 06.03.2023 before the learned District
and Sessions Judge, Agra and the same was
numbered as Application No.58-B with the
prayer for withdrawal of his Vakalatnama
earlier preferred in Sessions Trial No.235
of 2022 on behalf of the opposite party
no.2.

10. The abovementioned application
was kept pending and no orders were
passed
thereupon.
Under
such
circumstances, an application was filed by
the applicant through his Pairokar Vineet
Sharma on 01.04.2023 in the Court of
learned District and Sessions Judge, Agra
stating therein that the counsel engaged and
36 INDIAN LAW REPORTS ALLAHABAD SERIES
authorized by him had submitted an
application dated 06.03.2023 which has not
yet been decided, it was also pointed out in
the application dated 01.04.2023 that the
opposite party no.2 had filed Vakalatnama
dated
07.01.2022
by
misleading
the
Advocates
through
engaging
them
inasmuch as the Advocate Welfare Ticket
had
not
been
affixed
in
the
said
Vakalatnama
and
therefore,
the
said
Vakalatnama, being defective, was liable to
be rejected.

11. While entertaining the Application
No.58-B, the same was rejected vide order
dated 05.04.2023 which impugned the
present application.

12. For substantiating the stand taken
up by the learned Senior Counsel, it has
been pointed out that the learned trial court
absolutely lost sight of the fact that the U.P.
Advocates Welfare Fund Act, 1974, interalia provides under Section 9(1) of the said
Act that every Advocate shall affix on the
Vakalatnama accepted by him a Welfare
Stamp of the value of ten rupees and no
court, tribunal, authority or person shall
receive any Vakalatnama in favour of such
Advocate unless it is so stamped in addition
to any stamp required under any other law
for the time being in force.

13. It has been further argued by Sri
Satish Trivedi, learned Senior Counsel that
Section 5 of the said Act provides that
wherein any case the Welfare Stamp referred
to in sub-section (1) is not affixed on the
Vakalatnama or is not filed by any Advocate,
the Court shall not permit such Advocate for
further proceeding in that case.

14. It has also been contended by
learned Senior Counsel that learned trial
court miserably failed to appreciate that
without
effective
and
genuine
representation by a counsel on his behalf,
the applicant could not be afforded a fair
trial.

15. As a corollary to the aforesaid, it
is submitted that engagement of Sri Arvind
Kumar Sharma, Advocate by the opposite
party no.2 was a farce, sham and was
illusory and he had not been genuinely and
effectively engaged by the opposite party
no.2.

16. With regard to the aforesaid
question, the matter was also deliberated
upon by the Bar Council of U.P. and it was
decided vide order dated 05.04.2023 that
under the circumstances, permission to
withdraw the Vakalatnama was granted to
Sri Arvind Kumar Sharma, Advocate and
he was further granted permission to appear
on behalf of the accused/applicant before
the Sessions Trial No.235 of 2022, the
order dated 05.04.2023 passed by the Bar
Council of U.P. is appended along with the
present applicant as Annexure-12 available
at Page No.139.

17. Even after considering all the vital
facts as narrated by learned Senior Counsel
appearing on behalf of the applicant,
learned court of District and Sessions
Judge, Agra rejected the prayer of the
applicant vide order dated 05.04.2023
which impugned the present application
under Section 482 Cr.P.C.

18. Per contra, Sri Karunakar Singh,
learned Additional Government Advocate-I
vehemently opposed the prayer as made in
the present application on the ground that
once the Vakalatnama has been executed by
learned counsel, the prayer for withdrawing
the same, was rightly rejected by the
learned District and Sessions Judge, Agra.
8 All. Shivanshu Mudgal Vs. State of U.P. & Anr.
37

19. Considering the prayer as made in
the application, after hearing the learned
counsels for rival parties at length, certain
questions available to be answered by this
Court pertaining to the instant matter are as
under:-

(i) Whether Sri Arvind Kumar
Sharma, Advocate was entitled to withdraw
his Vakalatnama which has already been
executed in favour of the opposite party
no.2?

(ii) The essential ingredient for
establishing a relation of an Advocate and
client is mere signing the Vakalatnama?

(iii) Effect of Section 9 of the
U.P. Advocates Welfare Fund Act, 1974 in
the instant matter?

20. Sofar as regarding the first
question, it is crystal clear that in a random
and fashionable manner, signatures of so
many Advocates have been taken on
different Vakalatnama and the same have
already been submitted before the sessions
trial wherein one of the counsel was Sri
Arvind Kumar Sharma, Advocate, in
pursuance of the execution of Vakalatnama,
no brief has ever been given in shape of
relevant documents and papers by the
opposite party no.2 to Sri Arvind Kumar
Sharma, Advocate. More so, Sri Arvind
Kumar Sharma, Advocate never appeared
and argued the matter on behalf of the
opposite party no.2 before the learned trial
court and as such, the Vakalatnama cannot
be treated merely a piece of paper which
creates right of holding for certain
Advocates from appearing on behalf of the
opposite party, in absence of any specific
instructions, the counsel cannot be treated
as bonded and handcuffed to the client who
sought signatures over Vakalatnama, which
was itself defective in nature, since the
same was not having the Advocate Welfare
Ticket.

21. Answering the second question as
mentioned above, the essential ingredients
which are required for establishing the
relationship of client and Advocate are the
discussion of the matter for which the
Advocate is going to appear before any
court of law for protecting the interest of
his client by way of assisting the court on
the basis of relevant documents and the
correct proposition of law. In the instant
matter, it is admitted case of both the
parties that at no point of time, any brief or
documents has ever been handed over from
the opposite party no.2 to Sri Arvind
Kumar Sharma, Advocate and as such, only
by obtaining the signatures over the
defective piece of paper cannot establish a
relation between the client and his counsel.

22. Ultimately, the legal question
which involves the crux of the matter and
vital to be adjudicated in pursuant to the
controversy as raised through the instant
application preferred under Section 482 of
Cr.P.C., for ready reference, the extract of
the Section 9 of the U.P. Advocate Welfare
Fund
Act,
1974
are
reproduced
hereinbelow:-

"9.
Welfare
stamp
on
Vakalatnama. - (1) Every member of the
Scheme shall affix on the Vakalatnama
accepted by him a Welfare Stamp of the value
of five rupees in the case of Vakalatnama filed
in the High Court or a Tribunal or any other
authority or person and two rupees in any
other case and no court, tribunal, authority or
person shall receive any Vakalatnama in
favour of such member unless it is so stamped
in addition to any stamp required under any
other law for the time being in force.
38 INDIAN LAW REPORTS ALLAHABAD SERIES

(2) The value of the Welfare
Stamp shall neither be taxable cost in the
suit or proceeding nor be collected in any
event from a party to such suit or
proceeding.

(3) Any contravention of the
provisions of sub-section (2) by any
member shall disentitle him to the benefits
of the Scheme and shall be deemed to be a
misconduct and the Trustees Committee
shall report the matter to the State Bar
Council for appropriate action.

(4) Every Welfare Stamp affixed
on a Vakalatnama under sub- section (1)
shall be cancelled in the manner provided
in Section 30 of the Court Fees Act, 1870.

(5) wherein any case the Welfare
Stamp referred to in sub-section (1) is not
affixed on the Vakalatnama or is not filed
by any Advocate the Court shall not permit
such Advocate for further proceeding in
that case."

23. By bare perusal of the Section
9(5) of the said Act, it is crystal clear that in
case the Welfare Stamp referred to in subsection
(1)
is
not
affixed
on
the
Vakalatnama or is not filed by any
Advocate, the Court shall not permit such
Advocate for further proceeding in that
case, meaning thereby, if the Advocate
Welfare
Stamp
is
absent
from
the
Power/Vakalatnama submitted before the
court concerned, the Vakalatnama signed
by the concerned Advocate cannot be
permitted to proceed in the matter and as
such, in absence of Advocate Welfare
Stamp from the Vakalatnama which has
been submitted by the opposite party no.2
before the learned trial court, no counsel
who put his signatures over the same, is
permitted to proceed in the matter.

24. The abovementioned factual and
legal points were undiscussed by the
learned District and Sessions Judge, Agra
while passing the order dated 05.04.2023
which is under challenge in the instant
application.

25. The arguments as raised by
learned Senior Counsel appearing on behalf
of the applicant is also relied upon the
judgment passed by Hon'ble the Apex
Court in the case of Supreme Court Bar
Association Vs. Union of India and
another [Writ Petition (Civil) 200 of 1995,
decided on 17.04.1998] wherein it has been
held that this court cannot in exercise of its
jurisdiction under Article 142 read with
Article 129 of the Constitution, while
punishing a contemner for committing
contempt
of
court,
also
impose
a
punishment of suspending his licence to
practice, where the contemner happens to
be an Advocate. Such a punishment cannot
even be imposed by taking recourse to the
appellate powers under Section 38 of the
Act while dealing with a case of contempt
of court (and not an appeal relating to
professional misconduct as such). To that
extent, the law laid down in Re: Vinay
Chandra Mishra, (1995) 2 SCC 584 is not
good law and we overrule it.

26. An Advocate who is found guilty
of contempt of court may also, as already
noticed,
be
guilty
of
professional
misconduct in a given case but it is for the
Bar Council of the State of Bar Council of
India to punish that Advocate by either
debarring him from practice or suspending
his licence.

27. In the instant matter, there was
hardly any occasion available before the
learned District and Sessions Judge, Agra
to comment upon the conduct of an
Advocate
while
adjudicating
the
application for withdrawal of Vakalatnama
8 All. Mahesh & Ors. Vs. State of U.P. & Anr.
39
preferred by Sri Arvind Kumar Sharma,
Advocate, since the same application has
already been allowed by the Bar Council of
U.P. and as such, the matter was out of
judicial ambit of learned District and
Sessions Judge,

28. In view of the aforementioned
facts and circumstances, the order dated
05.04.2023 passed by the learned District
and Sessions Judge, Agra is hereby quashed
and set aside.

29. The present application stands
allowed accordingly.
----------
(2023) 8 ILRA 39
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.07.2023

BEFORE

THE HON'BLE GAJENDRA KUMAR, J.

Application U/S 482 No. 24499 of 2023

Mahesh & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Aishwarya Pratap Singh

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Section 155(4) - Where a case
relates to two or more offences of which
at least one is cognizable, the case shall
be deemed to be a cognizable case,
notwithstanding that the other offences
are non-cognizable - Indian Penal Code,
1860 - Sections 504 & 506 - an offence
under Section 506 IPC, if committed in the
State of U.P. is a cognizable offence.(Para
-14, 16)
Quashing of - charge sheet, cognizance as well
as summoning order - accused-applicants and
informant-opposite party no.2 are accused of
illegally grabbing a portion of land - belonging
to opposite party no.2 - despite a land mark set
by Sub Divisional Magistrate - opposite party no.
2 was allegedly abused and manhandled by
applicants - leading to FIR - Case involved an
offense under Section 504 and Section 506 IPC -
Section 506 was initially non-cognizable - Uttar
Pradesh Government issued Notification No.
777/VIII-9 4(2)-87 in 1989 - making Section
506 IPC cognizable and non-bailable - despite
non-cognizable status in the first schedule.
(Para -7)

HELD:-Accused, charged under Sections 504
and 506 IPC, must be tried in the manner
prescribed
for
for
trial
of
cognizable
offences.(Para -17)

Application u/s 482 Cr.P.C. rejected. (E-7)

List of Cases cited:-

1. Santosh Kumar & ors. Vs St. of U.P. & anr.,
2019:AHC:18156

2. Anurag Yadav & ors. Vs St. of U.P. & anr,
2020:AHC:39811

3. Rama Shankar Upadhayay & ors. Vs St. of
U.P. & anr., 2022:AHC:190995

4. Virendra Singh Vs St. of U.P., 2002 ILR Alld
Series , 653 2002 (2) UC 453

5. Meta Sewak Upadhyay Vs St. of U.P., 1995 CJ
(All) 1158

6. Aires Rodrigues Vs Vishwajeet P. Rane,
(2017) 11 SCC 62

(Delivered by Hon'ble Gajendra Kumar, J.)

1. Heard learned Counsel for the
applicants and learned AGA for the Staterespondents.

2. By means of the present application
under Section 482 of
the
Criminal