S.Jayapal vs I.Periyasamy on 13 October, 2009

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

 

34. The cases in A.R.Antulay v. Ramdas Sriniwas Nayak and Another, [(1984)2 Supreme Court Cases 500] and K.Chinnaswamy Reddy v. State of Andhra Pradesh and another, [AIR 1962 Supreme Court 1788] as rightly contended by Mr.R.Shanmugasundaram, learned senior counsel, respectively deal with the question of who could set the criminal law in motion and the power of the High Court in revision against the order of acquittal. While on this, it may not be out of place to notice the Bar Council of India Rules. Rule 9 in Section I – Duty to the Court in Chapter II – Standards of Professional Conduct and Etiquette in Part VI, Rules Governing Advocates:

"9.An advocate should not act or plead in any manner in which he is himself peculiarly interested.

Illustration:

I. He should not act in a bankruptcy petition when he himself is also a creditor of the bankrupt.

II. He should not accept a brief from a company of which he is Director". From a reading of the illustration, I am inclined to think that the words intended in Rule 9 would be "pecuniarily interested" and not "peculiarly interested". However, for the purposes of this case, the matter may be left there, since there can be no doubt that the conduct of the petitioners is one of fomenting litigation and of stepping into the shoes of the litigants thereby blurring the distinction between counsel and client.

35. The various decisions relied upon by the learned senior counsel for the revision petitioners do not really apply to the question before us. In K.Chinnachamy Reddy v. State of Andhra Pradesh and another, [AIR 1962 Supreme Court 1788], the Court primarily was seized with the powers of the High Court in a revision against acquittal. In Nadhir Khan v. The State (Delhi Administration), [(1975) 2 Supreme Court Cases 406], what the Hon’ble Apex Court holds in effect that it is left to the discretion of the High Court as to what is an appropriate case for exercise of revisional jurisdiction. The cases of A.R.Antulay v. Ramdas Sriniwas Nayak and Another, [(1984)2 Supreme Court Cases 500] and N.Natarajan v. B.K.Subba Rao, [(2003) 2 Supreme Court Cases 76] are basically on the now accepted norm that any one can set the criminal law in motion. The case of Sheo Nandan Paswan v. State of Bihar and others, [AIR 1987 Supreme Court 877] also follows the decision in A.R.Antulay v. Ramdas Sriniwas Nayak and Another, [(1984)2 Supreme Court Cases 500] on the aspect of setting the criminal law in motion and passes on to hold that one, who set the criminal law in motion has the right to prefer revision against withdrawal of such case which had been initiated on his instance. The case of K.Pandurangan v. S.S.R.Velusamy and Another, [(2003)8 Supreme Court Cases 625] relates to the exercise of powers of revision at the instance of the complainant in the case. In K.Anbhazhagan v. Superintendent of Police and others, [2004 Supreme Court Cases (Cri) 882] as rightly contended by Mr.R.Shanmugasundaram, learned senior counsel, the person involved from the stage of trial was the one who was before the Hon’ble Apex Court and what was really discussed therein was the powers of transfer exercisable by the Hon’ble Supreme Court under Section 406 Cr.P.C. and also the power of transfer in the Hon’ble Apex Court under Article 139-A, which speaks of the power of transfer by the Hon’ble Apex Court, when such Court is satisfied on its motion or in application by the Attorney General or by a party to any such case. Thus in all the above cases, it is seen that none of them addressed the question of the exercise of powers of revision at the instance of private parties and against orders of discharg

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