A Calcutta High Court Bench of Justice Bibek Chaudhuri has held that judicial restraint and discipline do not indicate that a Judicial Officer is not entitled to take exception against the non-conforming acts of an Advocate representing a party even in an extreme case.

In that context, the Court observed that "It is not expected that a judge should be a mute spectator. He must take active participation in judicial proceeding. While taking active participation if the learned Judge finds that the learned Counsel on behalf of any of the parties is trying to disturb judicial function of a Court, he has every right to pass an order by caution to the learned Advocate".

Counsel Bijoy Adhikary, among others, appeared for the petitioner.

In this case, a petition was filed seeking the revision of an order refusing an early hearing to the petitioner. The petitioner suffers from octogenarian cancer and sought further investigation in his criminal case, alleging forgery and cheating. The petitioner's application was refused due to the heavy board of the trial judge.

The main issue was whether the hearing date could be fixed earlier, given the failing health of the petitioner.

The Court noted that "The petitioner is severely ill as he is a cancer patient and is of 85 years and he has to take care of his ailing wife of 76 years. Given his old age and health condition the Court, on humanitarian grounds the court 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".

Perusing the Magistrate's order sheet, the Court observed that on the other hand, "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. The order sheet further reflects that the learned Magistrate requested the concerned learned Advocates not to disturb her judicial function, but they did not pay any heed to her request".

Subsequently, the High Court took the considered view that the Magistrate only observed that such demeanor on behalf of the learned Senior Advocates appearing for the defacto complainant was unwarranted, and they were cautioned not to repeat such act and cause an unnecessary ruckus in the Court room. This observation allegedly caused serious humiliation to the Advocates, and they spent more time before the High Court to prove their dishonour and humiliation and little time to move the petitioner's cause.

In light of the same, the High Court recorded that "judicial restraint and judicial discipline does not mean that even in extreme cases the Judicial Officer is not entitled to take exception against an act of an Advocate representing a party. There are catena of instances where the learned Advocates even faced contempt for causing serious disturbance in course of discharging judicial function".

Finding no reason to alter the findings recorded by the Magistrate, the Court observed that "it is clearly found that the learned Magistrate was over burdened with additional charges of two more courts therefore he expressed his inability to prepone the date of hearing of the application under Section 173(8) of the Cr.P.C filed by the petitioner. Since the situation of the court aggravated due to repeated instances by the learned Advocates they were cautioned but the learned Magistrate did not take any step against them for which they might be seriously prejudice".

However, the High Court accounted for the failing health of the petitioner, and directed the Magistrate to hear out the application within one week.

Cause Title: Atindra Nath Mondal v. The State of West Bengal & Ors.

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