Abhay Shreeniwas Oka; CJ.
1. Heard learned counsel appearing for the petitioners, learned Additional Advocate General for the first to third respondents.
2. The resolution passed by the Bar Association (R), Hubli, led to the filing of this writ petition by the petitioners who are the members of the Bar. Three students from Kashmir were arrested in connection with FIR registered in Crime No. 10/2020 in Gokul Police Station. The Special Executive Committee of the Bar Association passed a resolution on 15th February 2020 condemning heinous crime committed by the accused who were described in the resolution as anti-national and it was resolved that no members of the Bar Association should file vakalath on behalf of such anti-national criminals.
3. There is already a prima facie finding recorded in the order dated 20th February 2020 that in the light of the law laid down in paragraphs 10 and 24 of the decision of the Apex Court in the case of A.S. Mohammed Rafi v. State of Tamil Nadu represented by Home Department and Others (2011) 1 SCC 688 [LQ/SC/2010/1338] , the resolution was wholly illegal. This resolution led this Court to pass a drastic order of granting police protection to those members of the Bar who wished to represent the accused in the said case. The orders passed by this Court show that notwithstanding the order dated 20th February 2020 and notwithstanding the fact that protection was granted to the members of the Bar who were desirous of representing the accused, the said members of the Bar met with lot of resistance at the hands of some of the members of the local Bar. In the order dated 20th February 2020, this Court took a note of the situation and passed further orders for again protecting the members of the Bar who were representing the accused.
4. It is only because of the timely intervention by the learned Advocate General that by passing a resolution dated 24th February 2020, the Bar Association moved one step in the right direction. It is also to be noted that notwithstanding the act of protests by some members of the Bar, office bearers of the Bar Association co-operated with the members of the Bar who wished to represent the accused. Ultimately, after the two orders of this Court granting police protection, bail application was filed, was entertained and was decided.
5. Notwithstanding the observation made in paragraph 10 of the order dated 27th February 2020, none of the members of the local Bar came forward to represent the accused.
6. In the orders of this Court, an indication was given that the issue whether passing of such resolutions would amount to criminal contempt is an issue which will have to be dealt with.
7. Today, the learned AAG tendered across the Bar along with a memo, a copy of the resolution of the Governing Council of the Bar Association (R) Hubli passed on 5th March 2020 in the special Governing Council meeting which records that in view of the modification made by resolution dated 24th February 2020, the resolution dated 15th February 2020, in fact, stands revoked and withdrawn.
8. It is an admitted position that notwithstanding that the scene created by some of the members of the Bar after the first order of this Court was passed, the office bearers of the Bar Association co-operated with the lawyers representing the accused. Secondly, now the resolution dated 15th February 2020 stands revoked.
9. These are the two reasons due to which we do not wish to go into the controversy whether passing of the resolution dated 15th February 2020 and the effect thereof will amount of criminal contempt of the Court.
10. However, before we close the chapter, we must put on record certain disturbing features of the case. In the resolution dated 15th February 2020, the Special Executive Council has condemned the heinous crime of the three Kashmir students by describing them as anti-nationals. Perhaps this resolution forgets that three Kashmiri students were recently arrested in connection with the first information report and there was no adjudication made about their guilt. But the resolution records that the accused are anti nationals who have committed heinous crime.
11. As far as the criminal justice delivery system in our country is concerned, one can proudly say that Kangaroo trials are not conducted and even foreign nationals, against whom there is an allegation of commission of a serious offence, are given a fair trial. Only by way of example, we may refer to the case of Ajmal Kasab.
12. The minimum which we expect is that considering the presumption of innocence which still exists (barring exceptional cases where negative burden is on the accused), at least the members of the Bar should not be branding the persons who are named as accused in FIR as criminals and anti-nationals though the charges against them are not proved in the Court. The law requires that the three accused against whom serious charges have been levied should be given a fair trial.
13. The second disturbing feature is that so far none of the local lawyers have come forward to represent the accused. If such a situation is created and if lawyers practicing outside the district do not come forward to represent the accused, even the Courts will find it difficult to give legal aid by appointing local lawyers. This situation is not conducive for a healthy justice delivery system. Such a situation will have to be avoided. Ultimately it is the duty and responsibility of every stake holder in the legal system to ensure that the accused gets fair trial and his rights under the Constitution of India are not violated.
14. While we dispose of the petition, we hope and trust that no Bar Association in the State will create such a situation which will require intervention by the High Court. Every Bar Association will realize its responsibilities and obligation to ensure that a right of fair trial is extended to every accused.
15. As regards the incident of violence, first information report is already registered as stated by the learned Advocate General. We are not issuing any specific direction as investigation is in progress. However, we trust that considering the fact that the alleged offence has occurred in the precincts of the Court or near the precincts of the Court, investigation will be carried meticulously with all seriousness. Therefore, we are not granting any relief in terms of the first three prayers.
16. As far as the fourth prayer is concerned, we hope and trust that in the light of the orders which we have passed and in the light of the latest resolution of the Bar Association dated 5th March 2020, the Advocates who wish to represent the accused in trial will not require police protection. But unfortunately, later on, if a situation arises which compels them to seek police protection, it is always open to them to seek police protection. In the event they are denied police protection, they can always take recourse to a remedy by way of a writ petition.
17. Insofar as the fifth prayer is concerned, we are not considering the said prayer on merits and if an occasion arises in future, the Competent Court can always consider the said prayer on merits.
18. We have already recorded our appreciation for the timely intervention of the learned Advocate General which ensured that the Bar Association revokes the earlier resolution dated 15th February 2020.
19. The learned counsel representing the petitioners who are members of the Bar states that the police machinery in the District very efficiently implemented the orders of this Court. In view of the said statement, we record our appreciation for the service rendered by the police which will go a long way to help the administration of justice.
20. With the above observations and subject to what we have said above, the petition is disposed of.
