Jharkhand HC Fines Man Rs. 1 Lakh For Filing 'Misconceived' Application In Pending Plea Of BJP MP Nishikant Dubey In Alleged Fraud Case

Dismissing an application moved by a man alleging that the counsel appearing for BJP MP Nishikant Dubey in an ongoing criminal writ petition, had appeared for the former and their professional relationship had continued, the Jharkhand High Court imposed a cost of Rs 1 Lakh finding the plea to be "misconceived" and filed with an "ill motive" to obstruct judicial proceedings.

A single judge bench of Justice Sanjay Kumar Dwivedi, in its October 28 order said, “...the court finds that prima facie with ill motive so that this court cannot decide the case today, the respondent No. 2 has filed the aforesaid I.A., however, at the earlier point of time, two weeks time was taken by the learned counsel appearing for the respondent No. 2 to file counter affidavit and the counter affidavit has not been filed as yet and today itself, the aforesaid I.A. has been filed even the prayer is not made today for any time to file counter affidavit.”

“As such, the aforesaid I.A. is misconceived one and the same is dismissed with a cost of rupees one lakh. The cost shall be deposited before the Member Secretary, Jharkhand State Legal Services Authority, Ranchi within two weeks. Respondent No. 2 is directed to file the receipt of the same in the present case,” Justice Dwivedi added.

As per the facts, one M/s Paritran Medical College and Hospital obtained a loan of Rs. 93 crore from Punjab National Bank, which later became a non-performing asset (NPA). Consequently, the bank initiated recovery proceedings before the Debt Recovery Tribunal, which resulted in the issuance of a demand and recovery certificate against the hospital.

Following this, the property was auctioned, and a related civil writ petition had been previously dismissed by the court.

Anamika Gautam (petitioner no. 2), the wife of Nishikant Dubey (petitioner no. 1), serves as a trustee of the Baba Baidyanath Medical Trust, which purchased the property at auction. The petitioner no. 1–Dubey, said that he has no connection to the property; however, he was falsely named an accused in the FIR lodged by the Secretary of M/s Paritran Medical College and Hospital, who had in turn alleged that Dubey and his wife had fraudulently acquired the property.

The high court had in the previous hearing issued a notice to the man–one Shiv Dutt Sharma, who was added as a respondent then, requiring him to submit all the necessary documents within a week.

Sharma in his application had alleged that Advocate Prashant Pallav who was representing Dubey, had earlier represented Sharma in another matter, and in view of the same and in light of Section 132 of the Bharatiya Sakshya Adhiniyam, 2023, the professional relationship continued even if the case had ceased at the earlier point of time. On these grounds, he submitted that an appropriate order may kindly be passed.

Pallav appearing for the petitioners said that he had appeared for Sharma in a case arising out of The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 as a junior counsel of a senior advocate in a 2012 writ petition which was decided by a co-ordinate single judge bench of the high court in October 2014. He further submitted that apart from that  there is nothing to suggest that any material has been disclosed by him pertaining to Sharma. He then submitted that Gautam is the purchaser trustee and Dubey has nothing to do with the said trust.

However, Pallav clarified that Sharma “is in habit of making allegation against the counsels.” He further submitted that the I.A. was filed with an ulterior motive, as the matter was fixed for final hearing.

Expressing its concern over the allegations against Pallav, the high court said, “It is very unfortunate that this petition has been filed that too making allegation against a practicing advocate of this court. Many lawyers are appearing at one point of time for one petitioner and at another point of time for another.”

Upon reviewing the claims made in the writ petition, the Court observed that it was clear the reference pertained to a case arising from the Debt Recovery Tribunal, which was central to the writ petition and referenced in the accompanying I.A.

Expounding on Section 132 of the Bharatiya Sakshya Adhiniyam, 2023, the court said that the provision protects both the party and the counsel. It said, “This provision protects the party as well as the counsel. This protective umbrella also saves the counsel from unwanted and unnecessary proceedings. After all the counsel is only the carrying the brief of the client and he has no personal interest in the matter, being a member of a noble profession and the society considers him as indispensable. It is true that the lawyer has to show utmost care while dealing with the case of the clients. The lawyers cannot be said to be with the parties and similarly for the fault committed by the parties, the lawyers cannot be punished.”

The Court emphasized, “In case, proceedings are also taken against the lawyer for the acts or omission function without fear. This is an independent profession and as such, the lawyer should be permitted to discharge his function without any external pressure. The way, Mr. Abhishek Krishna Gupta, learned counsel has filed the present I.A. and as pointed out, which has been noted supra against one of the senior lawyer of this court, he has also made the same allegation in a W.P.(P.I.L), which was dismissed with a cost of rupees one lakh, which clearly suggests that with ulterior motive and maliciously the present I.A. has been filed, which is required to be dealt properly.”

The court warned against the casual filing of such applications, stating that it could open the floodgates for frivolous cases against lawyers if not addressed properly.

The court also directed Sharma to file a counter affidavit within two weeks, failing which the writ petition will be decided without it, with no further adjournments permitted. The interim order granted earlier is to remain in effect until the next hearing date. When Sharma's counsel said that the time of the filing of receipt of the fine amount may be extended, as the respondent would like to approach the Supreme Court, the high court permitted the same and asked Sharma to file the receipt of the fine amount in four weeks.

The matter is next listed on December 9.

Case Title: Dr. Nishikant Dubey And Anr vs State of Jharkhand and Anr

LL Citation: 2024 LiveLaw (Jha) 167

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