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petition

All material details to be fully disclosed before the court: Bombay High Court

The disclosure of all facts which play an important role in securing justice in a case must be revealed before the court and not facts which are a half-truth with the intent of subverting the administration of justice. This was decreed by Hon’ble Justice Rohit B. Deo in the case of Shubham @ Bhaiyyalal vs. State of Maharashtra [CRIMINAL WRIT PETITION 393 OF 2021] on the 17th of July, 2021 before the Hon’ble High Court of Bombay at Nagpur.

The brief facts of the case are, the applicant is arraigned as an accused for offences punishable under sections 302, 307, 326, 143, 145, 147, 148, 149, 504, 506, 120-B of Indian Penal Code read with section 135 of Maharashtra Police Act. The applicant and the co-accused allegedly brutally killed Mr. Nikhil Lokhande. A criminal application seeking bail was preferred before the additional sessions Judge. The learned Sessions Judge rejected the application, after minutely scrutinizing the material in the charge sheet. The order of rejection of bail dated 20.6.2020 notes the uncontroverted position that the applicant is a history-sheeter and is facing as many as six prosecutions involving serious offences. The rejection order further notes that there is overwhelming evidence to link the applicant with the brutal killing and that a weapon is also recovered at the instance of the applicant. In apprehension that the prosecution witness may be influenced, the bail application was rejected. However, two days after the rejected, an application for bail was applied before the current bench which was approved. However, the bail was later cancelled since the applicant had concealed material facts. The present petition has been filed to question such a cancellation.

The counsel for the applicant submitted that the second bail application is filed since there is no prospects of early trial due to COVID-19 apart from merits of present case. He also argued that, strict rules of pleadings are not applicable to bail application and the degree of disclosure is not absolute. The counsel for the respondent submitted that, the applicant secured the bail by hoodwinking the system and merrily walked out of the prison a free man. Fortunately, due to the intervention of the complainant, the prosecution was obligated to move an application seeking cancellation of bail. It was also submitted that, the details of the first application, which was rejected, were not disclosed, much less, the fact that the rejection was on merits and hardly 48 hours had elapsed therefrom, nor was the rejection order placed on record. The learned judge heard the contentions of both the parties and observed that, the first rejection order rendered by the learned judge, was not produced on record. In the note appended, the statement made was a mendacious and mischievous half-truth. The prosecutor was silent, and the learned Judge failed to hear the alarm bells, which the conveniently and deceptively worded “disclosure” ought to have set ringing.

The judge decreed that, “The duty is to make a true and faithful disclosure, and not a half-truth with the intent of subverting the administration of justice. Not only the applicant, the learned counsel, who appeared in both the bail proceedings, must share the blame for the attempt to take the judicial process for a ride.” The petition was dismissed with exemplary costs and the judge also moral policed the counsel for the petitioner citing the observation made by the Hon’ble Supreme court in, R.Muthukrishnan Vs. The Registrar General of High Court at Madras, AIR 2019 SC 849, wherein, it was held that, “It is the ethical duty of lawyers not to expect any favour from a Judge. He must rely on the precedents, read them carefully and avoid corruption and collusion of any kind, not to make false pleadings and avoid twisting of facts. In a profession, everything cannot be said to be fair even in the struggle for survival. The ethical standard is uncompromisable. Honest, dedication and hard work is the only source towards perfection. An advocate’s conduct is supposed to be exemplary. In case an advocate causes disrepute of the Judges or his colleagues or involves himself in misconduct, that is the most sinister and damaging act which can be done to the entire legal system. Such a person is definitely deadwood and deserves to be chopped of”.

Click here to read the judgement.

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