'Exposes Unfortunate & Deplorable Sharp Practices': Calcutta HC Raps Lawyer For Procuring Anticipatory Bail By Misleading Sessions Court

The Calcutta High Court on Monday came down heavily on a lawyer for having procured anticipatory bail before the concerned Sessions Court through 'fraud' and by making a 'brazen incorrect submission' that no such similar relief had been previously turned down by the same Sessions Court or the High Court. 

 A Bench comprising Justice Bivas Pattanayak and Justice Joymalya Bagchi expressed displeasure at the conduct of the lawyer by underscoring that members of the legal profession are expected to perform their duties with utmost honesty. 

"Legal profession is a noble profession. Its members are expected to perform their duties with responsibility and honesty and uphold the high and moral ideals of the profession. The present case is one which exposes the unfortunate and deplorable sharp practices resorted to by a member of the said profession to procure an order of anticipatory bail in favour of his client by misleading the Court by making false submissions that no earlier prayer to an anticipatory bail had been turned down earlier either by the session court or the high court", the Court averred. 

The Court was adjudicating upon an application for cancellation of anticipatory bail under Section 439(2) of the CrPC. The counsel appearing for the opposite party nos. 2 and 3 sought to support the impugned order dated November 18, 2020 granting anticipatory bail by contending that there had been no suppression of material fact as it had been mentioned in the affidavit accompanying the application for anticipatory bail that a prayer for anticipatory bail had been rejected in an earlier occasion. It was further argued that no such submission as recorded in the impugned order was made by the lawyer before the Sessions Court.

The Bench observed with disdain that the 'hollowness' of the submissions made has been exposed form the material on record. Opining that the conduct of the concerned counsel was motivated to avoid any judicial scrutiny, the Court enumerated further, 

"In fact subterfuge and/or sharp practice resolved to procure the impugned order of bail is evident from the fact that the pleadings regarding rejection of similar prayer has not been pleaded in the body of the application but is surreptitiously couched in the affidavit accompanying the application so as to avoid judicial scrutiny by the presiding judge."

It was further noted that during oral arguments before the Sessions Court the counsel had made a 'brazen incorrect submission' that no prayer for anticipatory bail had been turned down previously by the Sessions Court or the High Court. The Sessions Court had granted anticipatory bail on the basis of such an incorrect submission, the Court stated further. 

The Bench further dismissed the contention that the Sessions Judge had wrongly recorded the counsel's submissions by underscoring that if that had been the case then the litigant would have promptly made an application before the said court to correct the erroneous recording.

Opining further that the impugned order granting anticipatory bail had been obtained through 'fraud and sharp practice', the Court noted that a regular bail had also been obtained on the basis of the impugned order. 

"On the other hand, upon obtaining the order of pre- arrest bail on the strength of misleading and incorrect submission, the opposite party nos. 2 and 3 immediately proceeded to obtain regular bail on the strength of such order. These facts leave no doubt in our mind that the order impugned was procured through fraud and sharp practice. When the very foundation of an order is with fraud, the same is rendered void ab initio and ought to be set aside on such ground alone", the Court averred further. 

The Bench further underscored that the contention that necessary documents were not available and thus could not be presented before the Sessions Court cannot be a justification for entertaining a subsequent application for pre-arrest bail.

Accordingly, the Court set aside the impugned order granting anticipatory bail as well as the the consequential order of regular bail by observing that they had been procured through fraud and suppression of material facts and is thus void ab initio. 

Opposite party nos. 2 and 3 were directed to appear before the concerned Sessions Court within seven days and pray for regular bail in accordance with law. If they fail to do so, the investigating agency and the court below shall take all appropriate steps for apprehending the opposite party nos. 2 and 3 in accordance with law, the Court directed further. 

Advocate Sumanta Ganguly appeared for the petitioner. Advocates S Bardhan and Shiladitya Banerjee represented the State. Advocate Manas Kr. Barman appeared for opposite parties nos. 2&3. 

Case Title: In Re : Bhajagobinda Roy alias Bhajan Roy

Case Citation: 2022 LiveLaw (Cal) 79

Click Here To Read/Download Order