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  • Writer's pictureMihir Govilkar

Indian Judiciary: 'Settlement', Lawyers & Expectations

On 21 September 2021, the Hon’ble Bombay High Court in Criminal Bail Application No. 920 of 2021 passed an order which is of tremendous import.

In this application, it appears that one lady, whose son was in prison, was introduced to the Applicant and was informed that the Applicant’s father was a well-known lawyer and that he would guarantee that the bail for the lady’s son would be secured within 15 days. In a moment of desperation, the lady paid that Applicant with an amount of ₹ 16,50,000/-in total, sometimes in cash and sometimes by way of cheques. However, when the lady’s son could not secure the bail and when she made enquiries with the Applicant, he gave evasive responses and therefore she lodged a criminal complaint against him of cheating.

In the order, it also appears that one witness has stated that when the lady gave an amount of ₹ 400,000 to the Applicant, he guaranteed that he would work out the settlement. Some chat messages were also placed on record, however, in the absence of a certificate under section 65 – B Of the Indian Evidence Act being obtained, they could not be relied upon.

The Hon’ble Court has noted that, though the offence, prima facie, is of cheating, it seemed that cheating was for the purpose of manipulation of the proceedings in the court and what had been assured was that the settlement would be worked out and that the term ‘settlement’ could very well be appreciated in the light of the nature of the proceedings. The Hon’ble Court has further gone on to note that it was not an uncommon feature that when the matter is pending before the particular court, parties indulge into transactions under the guise of ‘settlement’ and sometimes it so happens, even without the knowledge of the Counsel on record, who might have preferred to argue the case on its own merits. This tendency of guaranteeing the decision to come in favour of one party or the other, amounted to maligning a particular Judge and at large, the institution itself, by giving an impression that justice can be bought and that the Prosecutors and Judges can be sold. These vexatious attempts are rampant and this has to be nipped in the bud.

The final paragraph of the order states that though the offence punishable was under Section 420 of the IPC, the nature of the allegations levelled against the Applicant where the Complainant had been duped for a large amount on the assurance that the bail would be sought by effecting ‘settlement’, made the offence grave and this peculiar fact, disentitled the Applicant to be released on bail and therefore, the bail application was rejected.

This particular incident puts light on the general impression that I have encountered amongst the people about the Indian judiciary over the duration of my career as a litigation lawyer. Most people do not really know or even understand what goes on in the courts and yet, everybody surprisingly seems to have an opinion about the Indian Judiciary. Although it is no secret that there is corruption in India at times, even the Judiciary has noted the existence of corruption, I have not myself encountered any such instances of corruption. I have heard several times how somebody ‘must have managed’ or ‘settled the matter’ with the Judge. For me, after seeing the workings of the courts on a daily basis, it is difficult to understand how easily people think that corruption in the Indian judiciary is so rampant and all-pervasive. The understanding of the workings of the Indian Judiciary needs to improve among the common citizens.

Another challenge, that lawyers face is that of clients asking for guarantees about the outcome of a particular case. I have myself noted how clients are disappointed when I tell them that I could not guarantee the outcome, but I could only guarantee my best efforts. In this process, I have lost several clients who went to somebody else with their cases. I do not whether that somebody else offered them a guarantee but I have also had some clients come back to me with that same case because they were not happy with that other lawyer.

What people need to understand is that the court of law is a justice delivery system. Our system of justice delivery is based on the interpretation of the law which is in existence at a particular time. Lawyers of both sides argue their interpretation of the law and the merits of each case. And then, it is for the Judge to decide what is the correct interpretation of the law and in whose favour the law is, based on the merits of each case. Unfortunately, grapes become sour for the one who does not get a favourable decision from the Court and decides that the justice delivery system is unfair or that it is corrupt. Everyone believes that they are right and their case is the one that should get a favourable decision. If the truth is different from what they are saying, again the judiciary gets blamed.

It is everyone’s wish that there should not be more than one interpretation of the law and that laws should be straightforward and clear. I strongly believe that every attempt is made to make our laws clear and simple. However, as it is said that truth is stranger than fiction, such is the reality of the situation when it comes to applying the law to the facts of a case. Such facets of the law start to appear before you when you start to read the law and apply it to a case, which you had never thought of before.

It has been the experience of many lawyers who have spent several decades in this profession that even after so much time in the profession, there comes a case where some provision of law that they have dealt with several times, brings forth such an aspect of such an interpretation that they had not thought of before. Some of the most brilliant minds are lawyers and it would be unwise to say that if someone is intelligent, this should not happen. Law is a complicated subject. It is ever-evolving and by its inherent nature needs to adapt to the latest requirements of society.

I can only conclude by saying that if any lawyer guarantees you any particular outcome, you should be careful. The outcome of any case depends on several factors, many of which are outside the control of a lawyer.

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