Law, and the order

Trial court knowhow helps lawyers understand basics of justice delivery

THE hands that help the courts to balance the scale of justice have to be experienced. The Bar Council of India’s proposal to make trial court experience mandatory for High Court practice, under the circumstances, will do justice to the judiciary and can only be dubbed as right.

editorial@tribune.com

THE hands that help the courts to balance the scale of justice have to be experienced. The Bar Council of India’s proposal to make trial court experience mandatory for High Court practice, under the circumstances, will do justice to the judiciary and can only be dubbed as right.

While there is no denying the fact that the laws are written in the law books to be used by those who find and understand them, the fact that a lawyer cannot address the Bench effectively till he speaks from experience is an actuality that is no more in the realm of debate.

In a setup where the judiciary is almost always hard-pressed for time with more cases on the judicial anvil than can suitably be handled by the Judges, the need for effective assistance by a lawyer in the court travels beyond the sphere of desirability. It is nothing but an essentiality.

The Punjab and Haryana High Court alone, as of now, has no less than 5,13237 cases waiting for the hammer of justice to fall. Statistics released by the National Judicial Data Grid reveal that 3,67,244 cases have been pending for more than a year.

The factors behind the ever-mounting pendency are in abundance and are arguable. But a lawyer’s role in helping the Bench deal with the matters before it effectively and expeditiously is beyond the arena of doubt.

The need for a lawyer to be himself clear for bringing about clarity before the Bench is a well-recognised fact. It is equally true that lucidity in the thought process and the ability to transform reflections into words comes more from experience than books that teach the lawyers the law, but not always the art of practical advocacy.

Veridical experience for a lawyer here has to be more than just long. It essentially has to be rich and of the right sort. Putting a stamp of approval on one genus of practice over the other can never be done without exposing oneself to the risk of acute criticism as the views on the subject are bound to be divergent and based on one’s own practice and understanding. Some of the best lawyers in the High Courts across the country have never practiced before the lower courts and yet are technically and theoretically strong.

But the fact that cannot be relegated to the field of debate is that the trial court has the capacity and capability of familiarising an advocate with the basic nuts and bolts that make the justice delivery mechanism work like a well-oiled machine.

It teaches technicalities. For a mechanism, almost any mechanism, to run smoothly, it is fundamental not just to stick to the mechanics of it, but also for a discerning mind handling the system to assimilate the finer technical aspects of it for its better functioning.

Trial court practice takes the lawyers on the path to justice meandering its way through technicalities. It means coming in direct contact with the exceedingly methodological and technical facets, including recording, supporting or assailing of evidence. It helps a lawyer develop understanding of the procedural law and legal procedures from the ground up.

The lawyer can then make use of his trial experience before the High Court that primarily deals in appellate litigation. The procedural aspects of a case remain as central as they initially were, but turn tough to comprehend before the High Court for someone without trial court experience and may eventually affect the quality of assistance.

Underscoring the importance of effectual assistance, the Supreme Court in “Ref versus Rameshwar Prasad Goyal” asserted rules have been framed to authorise a legally trained person with prescribed qualification to appear, plead and act on behalf of a litigant.

“Not only is his physical presence, but effective assistance in the court also required. He is not a guest artist, nor is his job of a service provider, nor is he in a professional business, nor can he claim to be a law tourist agent for taking litigants for a tour of the court premises.

“An advocate on record is a seeker of justice for the citizens of the country. Therefore, he cannot avoid court or be casual in operating and his presence in the court is necessary. There are times when pleadings and records have to be explained and, thus, he has to do a far more serious job and cannot claim that his role is merely a formal one or his responsibilities simply optional”.

BENCH MARK
Can’t declare NRI PO if not served with notice

by Saurabh Malik

Indians abroad, including husbands of estranged wives, need not worry about PO proceedings behind their back, In a major relief for NRIs and others settled in foreign lands, the Punjab and Haryana High Court has made it clear that the accused sought to be declared proclaimed offender should have been served with a notice, or at least the prosecution should have made sincere efforts to intimate him of pending proceedings. A person who shifted abroad before the issuance of proclamation and had no knowledge of it could not be declared a proclaimed offender. Referring to Section 82 of the Code of Criminal Procedure, the High Court asserted the procedure prescribed was required to be followed in letter and spirit before a person was proclaimed as absconder. Proclamation of offender as provided under Section 82 had serious consequences. As such, it was the duty of the magistrate concerned to ensure that accused sought to be declared proclaimed offender had been served with a notice, or at least the prosecution had made sincere efforts to intimate accused of pending criminal prosecution against him.

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