Shri Protik Prokash Banerjee, Additional Judge, Hon'ble High Court of Judicature at Calcutta, passed away on 03/07/2020, less than a week after this post was first published. He is the 'Counsel' mentioned herein.
Upon reading this blog post he commented on Facebook "Anshul! Shades of a man I know, making a submission he was hauled over coals for having made! Besides, the Judge in question is not merely a Chief Justice designate, but he is brilliantly adorning that chair."
This post is now a fond reminiscience of his memory.
As an Advocate, the best thing that you hope for is an understanding and encouraging judge, who listens to your point patiently and gives a reasonable explanation even if he rejects your argument. The worst thing you can get is a hostile bench bent upon cutting short your sentences and dismissing your plea. However, in between these two extremes, are exchanges which begin reasonably and then, due to one off the cuff remark or another, descend into a hostile exchange. It is at this point that the Advocate has to display his tact, his nerves of steel and his ability to think on his feet so as to salvage the situation and prevent an adverse order being passed against his client. Most importantly, the Advocate must not get intimidated by the bench.
I had the good fortune of witnessing such an exchange first hand. I immediately wrote down the transcript of the exchange upon exiting the court realizing it to be of immense value for my growth as an Advocate. I am sharing it with you, dear reader, in the hope that you too will learn something from it.
In the Court of Hon'ble Justice [Distinguished Personality]
Dramatis Personae
Counsel
Mr. XYZ
Mr. ABC
All three of them Advocates.
Bench = One very prominent Justice of the concerned HC who is now the Chief Justice designate of another very prestigious HC.
Counsel begins to speak.
"Your Lordship will please refer to Section 24(4) and 24(6)"
"24(4).... "
".. and 24(6) your lordship"
"Yes"
*Reads Section 24(4) and 24(6)*
"Yes"
"Your Lordship will see that the word used is 'consultation', which is of quite controversial nature with regards to its interpretation... "
"Show me the document where it says the District Judge was consulted... "
"Your Lordship will refer to Section... "
"No, you show me the document... "
*hands over the document to the Bench*
"Your Lordship will see the date and please refer to Para 6"
*Bench reads Paragraph No. 6*
"Where does it say consultation?"
"May I refer your lordship to the Proviso of the said section?"
"Yes"
*Reads Proviso*
"Does service mean the same thing as consultation?"
"Your lordship will allow me... "
"The meaning is not the same... "
"But this is the Section my learned friends are relying upon in their memo!"
"Which memo?"
"The original one"
*Motions for copy of the memo*
*Copy of the original memo handed to the Bench*
"Your Lordship will see the appointments to the post of Public Prosecutor in 2011 have been made without consultation with the District Judge... "
"Counsel, the state has not followed the proper procedure for the appointment of the public prosecutors. I am not going to invalidate those appointments in this proceeding."
"Does your lordship accept that the appointments were illegal?"
"Yes, they were illegal."
*Bench to the opposite party*
"Mr. XYZ, any intervention at this point?"
"Your Lordship, we would like to submit that the appointments made since 2011 were made according to the procedure."
"I am not going into that. What has been done is done. I cannot invalidate appointments made in 2011."
*Counsel intervenes*
"Your Lordship, if I may refer you to the latest memo"
"Yes"
"Your Lordship will see that the original memo has 9 names"
"... Yes"
"And the latest memo has a lot more names"
"... Yes"
"The opposite party is seeking a writ of mandamus, without specifying whether these appointments were made in consultation with the District Judge."
"Read the memo."
"Your Lordship I have only one copy of the memo."
"Then take it from me and read it."
*Reads the Memo*
"It says Judicial Magistrate."
"Judicial Magistrate is not the same as District Judge."
"I know your Lordship. But my learned friends..."
"I cannot go into those appointments. They will continue on an ad-hoc basis until the law relating to their appointments is followed. Mr. XYZ, how much time do you require?"
"Your Lordship, I cannot say. Please grant us the time which your Lordship feels is appropriate."
"Mr. ABC, any submissions?"
"Your Lordship would look at the names mentioned in the writ..."
"Have you made them parties to this proceeding?"
"No, Your Lordship. But a number of them do not have requisite experience required for appointment to the panel."
"Have you made them parties?"
"No, your Lordship. But Your Lordship, one of them even has an FIR under Section 302 pending against him."
"I am not going to pass any remark against any person unless you have made them parties to the proceeding."
(Mr. XYZ) "Your Lordship we have an email from the District Judge which we would like to show you regarding the appointment of Mr. [One Particular Public Prosecutor]."
*Hands over email printout to the Bench*
(Counsel) "It looks like the District Judge is interested in the continuance of the Writ Proceeding."
"Mr. Counsel! That is a very serious accusation that you are levelling against one of our judicial officers! Do you have any evidence?"
"What is the evidence that the opposite party is relying on?"
"This email!"
*Bench passes printed copy of email to the Counsel*
"Is your Lordship seriously relying on an email from gmail.com as primary evidence of consultation for appointment? The little knowledge I have, and it is very little, regarding Cyber Law, says that you cannot rely on an email as evidence without verifying the server and the receiver!"
"Are you disputing the evidence?"
"Yes!"
"Mr. XYZ, 17th, 18th, 19th of the next month, whichever is a Friday, come back prepared. In the meantime, the appointments will continue on an ad-hoc basis. Until February 28 or until further orders."
*Order passed accordingly*
As is evident, an off the cuff remark against the District Judge led to a hostile exchange with the Bench, which was salvaged by the counsel by disputing the evidece using, by his own admission, his 'very little' knowledge of Cyber Law.
Learn, dear reader, to buy time for your client, when the waters become choppy, rather than making any submission which would sink his ship.
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