( 1 ) THIS petition under Section 482 Cr. P. C has been made by the petitioner for setting aside the order dated 17th April, 2006 passed by the Court of Metropolitan Magistrate.

( 2 ) BRIEF facts are that the petitioner filed a complaint under Section 138 of Negotiable instruments Act and the same was fixed on 17th April, 2006 before the court of metropolitan Magistrate. On that day the counsel for the petitioner, in whose favour 'vakalatnama', was signed by the petitioner did not appear before the Court on the ground that the advocates were on strike. The learned Court of Metropolitan Magistrate initially called the case in the morning, but when none appeared passed over the case. The case was recalled at 2. 25 p. m. , none appeared even at 2. 25 p. m. and the complaint was dismissed in default.

( 3 ) IN the petition, the plea taken by the petitioner's counsel is that the advocates were on strike and the advocate of the petitioner thought that attorney of the petitioner would appear in the Court and take adjournment. However, the attorney of the petitioner had left the services of the petitioner around the same time, so he did not appear before the Trial Court and he wrongly instructed the new incumbent about the next date of hearing as 26. 7. 2006. On 26. 7. 2006 when the new ar of the petitioner went to Court, he came to know that the case of the petitioner had been dismissed on 17. 4. 2006.

( 4 ) IT is obvious that the complaint of the petitioner was dismissed for non-appearance of the petitioner's counsel, who did not appear as he was on strike along with other advocates. An advocate cannot avoid appearing in the court on the ground of strike by Bar and cannot betray his client. In Ex-Capt. Harish Uppal Vs. Union of india 2003 (2) SCC 45 Supreme Court observed as under:

Thus the law is already well settled. It is the duty of every advocate who has accepted a brief to attend trial, even though it may go on day to day and for a prolonged period. It is also settled law that a lawyer who has accepted a brief cannot refuse to attend court because a boycott call is given by the Bar Association. It is settled law that it is unprofessional as well as unbecoming for a lawyer who has accepted a brief to refuse to attend court even in pursuance of a call for strike or boycott by the Bar association or the Bar Council. It is settled law that courts are under an obligation to hear and decide cases brought before them and cannot adjourn matters merely because lawyers are on strike. The law is that it is the duty and obligation of courts to go on with matters or otherwise it would tantamount to becoming a privy to the strike. It is also settled law that if a resolution is passed by bar Associations expressing want of confidence in judicial officers, it would amount to scandalising the courts to undermine its authority and thereby the advocates will have committed contempt of court. Lawyers have known, at least since Mahabir Singh's case 1998 VIII AD (S. C.) 297 = AIR 1999 SC 287 case that if they participate in a boycott or a strike, their action is ex facie bad in view of the declaration of law by this Court. A lawyer's duty is to boldly ignore a call for strike or boycott of court/s. Lawyers have also known, at least since Ramon Services 2001 (1) SCC 118 case that the advocates would be answerable for the consequences suffered by their clients if the non-appearance was solely on grounds of a strike call.

( 5 ) IN 2005 VIII AD (S. C.) 384 = AIR 2005 sc 4442 Society for Common Cause Vs. Union of India, Supreme Court again had occasion to consider issue of strike of advocates and Supreme Court reiterated the law already laid down in Harish Uppal case (supra) and reminded the obligations of advocates.

( 6 ) IN Ramon Services Pvt. Ltd. , Vs. Subhash Kapoor and Ors. AIR 2001 SC 207, Supreme Court observed as under: we put the profession to notice that in future the advocate would also be answerable for the consequence suffered by the pa

Click Here to Read the rest of this document