BECHU SEKH Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) Recently, a practice has developed at the Bar in arguing the case taking upon which is neither pleaded nor could be ascertained from the statement of facts narrated in the petition for bail. The purpose and object of a pleading has been given a go-by and it becomes difficult for the Court when a new point is taken for foundation whereof, is conspicuously absent in the pleading. The importance of pleading has been whittled down considerably and the facts which are narrated in the petition is completely different than the point which is agitated at the time of the hearing of the said application. Ordinarily, the Court should not travel beyond the pleading and confine its consideration within the four corners thereof and the reliefs claimed therein. It is more disturbing when a new point is taken which cannot be ascertained from the meaningful reading of the pleadings and inviting the Court to determine the same. This is one of the example where there is no pleading laying foundation for the point agitated at the time of hearing of the instant application and the judgments of the Supreme Court rendered on such point are cited as the case involves such points. There must be a sense of responsibility to be inculcated in the filing lawyer that the point which is projected at the time of an argument must have a foundation in the pleading as the court shall not be taken surprise nor the other side should be put in the same position. The aforesaid course of action augments the delayed disposal of the case as the other side seeks adjournment to consider such point in order to get prepared to meet such argument the importance of pleading has gradually diminished which we experienced in the recent past more particularly, when a Senior Counsels are engaged who thought it fit that the clinching issue is something else than what has been pleaded in the application. We could have dismissed the application for the lack of a requisite pleading but the point, which is projected before us being a pure question of law, we permitted the Counsel to argue such point and also provided reasonable time to the other side to prepare and meet such point on the next day.

(2.) The point is based upon the record more particularly, the order passed by the Special Judge under NDPS Act and the High Court being the court of record, we permitted the certified copy of the order-sheet to be produced to ascertain the veracity of the facts argued by the learned Senior Advocate appearing for the petitioner. The certified copy of the entire order-sheet has been filed and the case needs to be considered on the basis thereof. Since it is a pure question of law based on the record, we decided to dilute the rigour of the importance of the pleading bearing in mind the Constitutional right of an individual towards the personal liberty enshrined under Article 21 of the Constitution of India.

(3.) Before we proceed to deal with the points urged before us by the learned Senior Advocate for the petitioner the facts pleaded in the instant application are required to be adumbrated as under: