Indexing  Sheo Narayan Jafa v Judge Allahabad H.C. AIR 1953 SC 368 – Page 2  In re; A an Advocate AIR 1962 SC 1337 – Page 5  In re; Lalit Mohan Das AIR 1957 SC 250 – Page 9  In re; M an Advocate AIR 1957 SC 149 – Page 18  In re; Mr G a Senior Advocate of SC AIR 1954 SC 557 – Page 33  In re: V C Mishra AIR 1995 SC 2348 – Page  41  John D'Souza vs Edward Ani 1994 (2) SCC 64 ‐  Page 72  L D Jaisingham Vs Narain Das N Punjabi 1976 (1) ACC 354 – Page 75  Rajendra V Pai vs Alex Fernandes AIR 2002 SC 1808 ‐ Page ‐ 79 

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Shiv Narain Jafa vs The Hon'Ble Judges Of The High ... on 15 May, 1953

Equivalent citations: AIR 1953 SC 368, (1953) IIMLJ 238 SC

Author: G Hasan

Bench: Mahajan, B Mukherjea, G Hasan, Bhagwati, J Das

JUDGMENT

Ghulam Hasan, J.

1. Mr. Shiva Narain Jafa, an Advocate practising at Budaun, has appealed against the decision of a Pull

Bench of the Allahabad High Court suspending him from practice as an Advocate for a period of six

months under the provisions of the Indian Bar Councils Act.

2. It appears that in 1942 one Ganesh was prosecuted before Mr. N. P. Sanyal, Assistant Sessions Judge,

Budaun, under Section 376, Penal Code, read with Section 511, Penal Code, for an attempt to commit rape

upon a Chamar woman called Himman. His defence was a denial of the offence and the improbability of

his attempting such an offence owing to his physical defect. He attributed his implication in the offence to

his enemies. Ganesh was convicted and sentenced to 5 years' rigorous imprisonment, but his sentence was

reduced on appeal by the High Court to one year's rigorous imprisonment. Mr. Jafa represented Ganesh

at the trial. It was in connection with his conduct as an Advocate in the trial that Mr. Sanyal complained to

the High Courts for taking disciplinary action against Mr. Jafa for professional misconduct. The High

Court directed the District Judge, Budaun, under Section 10(2), Bar Councils Act to hold an inquiry into

the conduct of Mr. Jafa with reference to the allegations made in Mr. Sanyal's complaint. The District

Judge framed several charges and reported as a result of his findings that Mr. Jafa should not be allowed

to continue as a member of tile Bar.

3. The main charges are stated to be three. Under the first charge there are eleven subsidiary charges

indicated by letters A to K of which seven refer to the Advocate's conduct in connection with the trial of

Ganesh in the Court of Mr. Sanyal. The second charge is to the effect that the Advocate was in the habit of

putting scandalous and obscene questions to women witnesses and is based partly upon questions put to

Himman in the witness box and to a witness in another case in which action proposed to be taken against

the Advocate was subsequently dropped. The third charge is that he deliberately raised groundless

personal issues between himself and his clients on the one side and the presiding officers of courts on the

other so as to pick up quarrels with them with the object of bullying and brow-beating them. The High

Court acquitted the Advocate of all the charges, save two, described as I-A & I-F.

4. The subsidiary charge I-A is that the Advocate made an application before the Assistant Sessions Judge

asking for copies of the statements of certain witnesses examined by the Police under Section 162,

Criminal P. C. Six of these had been produced before the Committing Magistrate and they were cited as

witnesses to be produced by the prosecution at the Sessions trial. The seventh was Hulasi, the husband of

Himman. Hulasi had been produced before the Committing Magistrate, but the prosecution did not

propose to examine him in the Court of Session. In the application at No. 6 Himman was mentioned and

Hulasi was also added as a witness, but was not separately numbered. The application in the opening

paragraph stated that the statements of the 'undermentioned witnesses' were required. The copies were

supplied under the order of the Court. The charge against the Advocate was that Hulasi was not a witness

who was called for the prosecution at the Sessions trial and therefore a copy of his statement could not

under Section 162, Criminal P. C. be asked for or supplied but by misleading the Court into thinking that

Hulasi was such a witness, the Advocate succeeded in getting a copy of his statement. This action of the

Advocate is characterised by the High Court as a piece of sharp practice which was entirely unworthy of a

member of the Bar and amounted to professional misconduct. The second subsidiary charge (I-F) which

was held established by the High Court is that the Advocate had put a question to Babu Shiv Pershad, the

Investigating Inspector in cross-examination in that case, whether he had been alone with Himman in her

field till mid-night or till a late hour in the night. The Advocate denied having put the question but the

Court held that he did put it and it was a most improper question. They held that the question was

irrelevant as the charge had already been made before the Sub-Inspector began investigation and the

suggestion that the Sub-Inspector was guilty of misbehavior with the woman was a scandalous allegation

put forward in the form of a question without any real justification. They took the view that the Advocate's

conduct was reprehensible and that it amounted to professional misconduct which would justify

disciplinary action against him. The other subsidiary charges were held not proved. One of the subsidiary

charges (I-C) referred to certain questions which the Advocate attempted to put to Himman in the course

of cross-examination which were disallowed by the Court as being indecent and unnecessary. These

questions related 'inter alia' to the physical condition and physical characteristics of the accused Ganesh.

The learned Judges held that the attempt to put such questions reflected in some measure upon the

Advocate's capacity as a lawyer but there was no sufficient reason for holding that he deliberately

intended to put indecent questions to the witness merely to embarrass and annoy her.

5. As regards the first charge, it is true that under Section 162, Criminal P. C. the Advocate could not apply

for and obtain a copy of the statement of Hulasi recorded by the Police as he was not called for the

prosecution to give evidence in the Court of Sessions. His action was either due to his ignorance of the

provisions of Section 162, a fact which is scarcely credible in view of his standing at the Bar for over 30

years, or it was a deliberate act on his part to obtain the copy with a view to using it, as he thought, for

contradicting Hulasi in the witness box with reference to his previous statement and to make it conflict

with the other prosecution evidence, should he be called at any stage of the trial. In the latter case he may

well have acted in good faith believing, however erroneously, that he was serving the best interests of his

client.

6. Regardless of the motive of the Advocate, it is clear that the Court failed to exercise its jurisdiction in

not refusing the application in view of the express provisions of Section 162, which permits the furnishing

of a copy to the accused only of a witness who is called for the prosecution at the trial. On the other hand,

Mr. Sanyal ordered on the application 'Comply' whereupon the Court Moharrir issued the copy. Mr.

Sanyal subsequently held the Court Moharrir guilty of gross negligence in issuing the copy but failed to

realise that it was he who was to blame for neglecting to do his obvious duty. We do not think that the

Advocate's conduct in obtaining the copy can be called a piece of sharp practice justifying suspension from

practice.

7. The second charge does not in our opinion merit any serious notice. The question no doubt carried a

veiled insinuation about the Sub-Inspector's misbehavior but the Sub-Inspector did not object to the

question being asked and the Court did not disallow it as it had ample jurisdiction to do if it regarded the

question as being in decent or scandalous. The question was intended, as pointed out by the Advocate, to

impeach the credit of the Sub-Inspector in the conduct of the investigation. The question was not

intended to show that the Sub-Inspector was responsible for instituting a false charge against the accused

but it could well be taken to impeach the credit of the Investigating Inspector in other respects such as

employing questionable methods to obtain the conviction of the accused on the ground of his partiality

towards the woman. The First Information Report was made on 29-1-1942, soon after the occurrence

which took place at 11 a.m. The Sub- Inspector went to the village for investigation on February 1. The

Sub-Inspector while denying that he remained with the woman for a long time in the night in the field,

made conflicting statements about the time of his return. He said he did not remember that he had noted

the time of his return in the diary at 11 p.m. but it was possible that the time may be correct. This lends

some colour to the insinuation made in the question. At another place he stated that he returned at 7 p.m.

In this state of the evidence it is not possible to say that the question which was intended to shake his

credit was improper.

8. Having regard to all the circumstances of the case, we are not satisfied on the materials before us that

the case is one which deserves severe disciplinary action such as suspension of practice for six months as

has been imposed by the High Court. We think the ends of justice will be served by letting off the

Advocate with a warning. We cannot, however, part with the case without expressing our disapprobation

of the conduct of the Advocate in not exercising proper discretion in putting certain questions to Himman.

The subject-matter of the questions and the manner in which they were put do suggest that the Advocate

exceeded the legitimate bounds of his privilege to some extent. We hope that the warning we have issued

to him will serve to make him more careful in future.

9. Accordingly we set aside the order of the High Court suspending the appellant from practice and

content ourselves with issuing a warning to him. We make no order as to costs.

 

In re A an advocate air 1962 SC 1337 25/09/1961 SINHA, BHUVNESHWAR P.(CJ) SINHA, BHUVNESHWAR P.(CJ) SUBBARAO, K. SHAH, J.C. DAYAL, RAGHUBAR MUDHOLKAR, J.R. CITATION: 1962 AIR 1337 1962 SCR Supl. (1) 288 ACT: Professional Misconduct-Advocate on Record writing letters soliciting briefs-If guilty of professional misconduct Untruthful conduct is, court-Defect of character-Punishment-Supreme Court Rules, 1950 (as amended), O. IVA, r. 2. HEADNOTE: Mr. A, an Advocate on Record of this Court, wrote letters soliciting clients. One of such letters, a post-card was addressed to the Law Minister of Maharashtra and ended as follows,- "You might have got an Advocate on Record in this Court but I would like to place my services at your disposal is you so wish and agree". To the Registrar of this Court he admitted having written the post-card, but before the Tribunal stoutly denied having done so. The Tribunal found on evidence that the Advocate had written the post-card. When the matter came up before the court, the Advocate at first denied having written the post-card but on being pressed by the court to make a true statement admitted that he had written the postcard and had admitted that before the Registrar. ^ Held, that it is against the etiquette of the Bar and its professional ethics to solicit briefs from clients and an Advocate who does so must be guilty of grossly unprofessional conduct. There can be no doubt in the instant case that the Advocate concerned had written the post- card soliciting briefs. It makes no difference whether he did so in ignorance of this elementary rule of the profession or in disregard of it, since his conduct in court showed that he had no regard for truth and, consequently, he deserved no sympathy of the court and must be suspended. 289 DISCIPLINARY JURISDICTION: In the matter of Mr. 'A' an Advocate. The Advocate in person. H. N. Sanyal, Additional Solicitor-General of India and T. M. Sen, for the Attorney-General of India. 1916. September 25 and November 2. The Judgment of the Court was delivered by SINHA, C. J.-The Advocate proceeded against for professional misconduct was enrolled as an advocate of the Allahabad High Court in December 1958. In January 1961, he was enrolled as an advocate of this Court. The proceedings against him were taken in accordance with the procedure laid down in O. IV-A of the Supreme Court Rules. In March this year the Registrar of this Court received a letter, marked 'Secret', from Secretary to the Government of Maharashtra, in the Department of law & Judiciary, to the effect that the "Advocate on Record" of the Supreme Court had addressed a post-card, dated January 1, 1961, to the Minister of Law of the State of Maharashtra, which "constitutes a gross case of advertisement and solicitation for work." The original post-card was enclosed with the letter, with the request that the matter may be placed before the Chief Justice and the other Judges of the Supreme Court for such action as to their Lordships may seem fit and proper. The post-card, which was marked as Ex. A in the proceedings which followed, is in these terms: Mr. 'A'.

Advocate on Record. Supreme Court, Office and Residence B.9, Model Town, Delhi-9. Dated 19-1-61. 290 Dear Sir, Jai Hind. Your attention is drawn to the rule 20 of order IV of the Supreme Court Rules 1950 (as amended upto date) to appoint an Advocate on Record in the Supreme Court as according to this rule 'no advocate other than an advocate on Record shall appear and plead in any matter unless he is instructed by an Advocate on Record.' You might have got an Advocate on Record in this court but I would like to place my services at your disposal if you so wish and agree. Hoping to be favoured. Thanks, Yours sincerely, Sd: 'A' To The Minister of Law, Government of Maharashtra, Bombay." When the matter was placed before the Chief Justice, he directed the Registrar informally to enquire from the Advocate concerned whether the post-card in question had been written by him and bore his rubber stamp and signature. The Registrar called him, and in answer to his queries, the Advocate admitted that the post-card bore his rubber stamp and signature and that it bad in fact been dispatched by him. He also informed the Registrar that he had addressed similar post-cards to other parties. The Advocate added that he did not realise that in addressing those post-cards he was committing any wrong or breach of etiquette. The Chief Justice, on receiving the aforesaid information, placed the matter before a Committee of three Judges of this Court, under r. 2, O. IV- A. The Committee considered the matter referred to it, and 291 on receiving its opinion, the Chief Justice constituted a Tribunal of three members of the Bar, Shri Bishan Narain and Shri A. Ranganadham Chetty, Senior Advocates, and Shri I. N. Shroff, Advocate, with Shri Bishan Narain as its President, for holding the necessary enquiry into the alleged conduct of the Advocate proceeded against. In reply to the notice served on the Advocate, he chose to behave in a most irresponsible way by alleging that the complaint in question by the Government of Maharashtra "is false, mala fide and misconceived". He denied that he had written the letter in question, which he characterised as "the work of any miscreant". He added further that even if it were proved that the letter in question had been written by him, a mere perusal of it would show that there was nothing unprofessional or otherwise objectionable in it, and he added further that certainly it is not solicitation of work if one inquires from any person whether it requires or wishes and agrees to have the services of another advocate". The Advocate was examined as witness on his own behalf and the Tribunal put the post-card to him. The following questions by the Tribunal and answers by the Advocate will show the determined way in which he denied what he had admitted to the Registrar. "Tribunal: This post-card which has been brought to the notice of the court purports to be from you. Is this the post-card which you have written ? Witness: No. Tribunal: Has it not gone from your office ? Witness: No. There is no doubt it bears the seal of my office, but it has not been affixed by me. 292 Tribunal: You say it does bear your name and that the rubber stamp which appears is of your office but that it has not been affixed by you. Witness: Yes. Tribunal: Is the hand-writing which one find on this Postcard your hand-writing ? Witness: No. Tribunal: And the signature which is at the foot of the letter, you say, is not your signature. Witness: No, it is not mine" The Tribunal pursued the matter further to find out as to how the post-card had purported to emanate from his office, and then certain documents, marked Exs.B

to E, were brought on the record with a view to comparing his admitted hand- writing in those documents with that of the post- card in question. The Tribunal also made him write a letter in the very terms in which the postcard is written, with a view to making a comparison of the handwriting on the post-card with his admitted writing in identical terms, given by him in Court. The Tribunal then confronted him with his admissions made to the Registrar, as aforesaid, before the proceedings started. The following questions and answers will further indicate his attitude; "Tribunal: In what respects do you find any difference between your normal signature and this signature (signature on the post-card is shown to him). Witness: It appears to be like my signature, but it is not my signature. Signature on Ex. A is not my signature. 293 Tribunal: In connection with this post- card did you see the Registrar (Supreme Court) ? Witness: Yes, he called me. Tribunal: When? Do you know the date ? Witness: I do not remember. Tribunal: Did you say anything to him ? Witness: I did not make any statement. He showed me the post-card. I told him, as I said here, that I held not written it; somebody else might have written it. Tribunal: Did you admit before the Registrar that this letter was written by you ? Witness: I did not admit it, but he told me that if I admitted it, the matter might be hushed up. Tribunal: Did you say to the Registrar that you did not realise that in so doing you were doing any thing wrong ? Witness: No. I did not say anything. Tribunal: Do you want to produce any evidence ? Witness: No, because I have not done anything; so, I do not want to produce any evidence. Even if it is found that I have written the post-card, even then on merits, there is nothing in this Case". Finding that the Advocate was adamant in his denial that he wrote the post-card or that he had made any statement before the Registrar, the Tribunal called the Registrar as a witness and examined him on solemn affirmation. The Registrar are his evidence and fully supported his previous 294 report that the Advocate had made those admissions before him. After recording the evidence, oral and documentary, the tribunal made the report that inspite of stout denial by the Advocate concerned, the Tribunal was satisfied that the post-card in question had been written by him. The Tribunal was also of opinion that the Advocate did not realise that in writing the post-card he was committing a breach of professional etiquette and of professional ethics. It also remarked that it was unfortunate that the Advocate chose to deny the authorship of the post-card. The findings of the Tribunal, along with the evidence and record of the case, have been placed before us. 'the Advocate, on notice, has appeared before us and we have heard him. Before us also the Advocate first took up the same attitude as he had adopted before the Tribunal, but on being pressed by the Court to make a true statement as to whether he had written the post-card and had admitted before the Registrar that he had done so, he answered in the affirmative. It is clear beyond any shadow of doubt that the Advocate had addressed the letter aforesaid to the Government of Maharashtra, soliciting their briefs; that he had admitted to the Registrar of` this Court that he had written the post-card and other such post-cards to other parties, and that he did so in utter disregard of his position as an Advocate of this Court. It is equally clear that his denial of having written the post-card, and of having subsequently admitted it to the Registrar, was again in utter disregard of truth. He has, in this Court, condemned himself as a liar and as one who is either ignorant of the elementary rules of professional ethics or has no regard for them. In our opinion, the Advocate has mischosen his profession. Apparently he is a man of very weak

moral fibre. If he is ignorant of the elementary 295 rules of professional. ethics, he has demonstrated the inadequacy of his training and education befitting a member of the profession of law. If he M knew that it was highly improper to solicit a brief and even then wrote the post-card in question, he is a very unworthy member of the learned profession. In any view of the matter, he does not appear to be possessed of a high moral calibre, which is essential for a member of the legal profession. If anything, by adopting the attitude of denial which has been demonstrated to he false in the course of the proceedings before the Tribunal, he has not deserved well of the Court even in the matter of amount of punishment to be meted to him for his proved misconduct. In our opinion, he fully deserves the punishment of suspension from practice for five years. This punishment will give him enough time and opportunity for deciding for himself, after deep deliberation and introspection, whether he is fit to continue to be a member of the legal profession. In our view he is not. Let him learn that a lawyer must never be a liar.

Lalit Mohan Das vs Advocate-General, Orissa on 29 November, 1956 Equivalent citations: 1957 AIR 250, 1957 SCR 167 Bench: Das, S.K.

PETITIONER:

LALIT MOHAN DAS

Vs.

RESPONDENT:

ADVOCATE-GENERAL, ORISSA

DATE OF JUDGMENT:

29/11/1956

BENCH:

DAS, S.K.

BENCH:

DAS, S.K.

DAS, SUDHI RANJAN (CJ)

BHAGWATI, NATWARLAL H.

AIYYAR, T.L. VENKATARAMA

SINHA, BHUVNESHWAR P.

CITATION:

1957 AIR 250 1957 SCR 167

ACT:

Legal Practitioner-Report--Procedure-Not open to District judge to send back report to the Subordinate civil judge- Report once made Proceedings can terminate by- Final Order of the High Court only--Member of the Bar-Officer of the Court-Duty to client and Court-Dignity and decorum of the Court must be upheld-Conduct-Not a matter between individual member of Bar and a member of Judicial Service-Disciplinary action-Punishment-Mitigating circumstances-Interference by Supreme Court-Legal Practitioners Act (XVIII of 1879), s.

14.

HEADNOTE:

The appellant pleader who already had strained relation with the Munsif made certain objectionable remarks in open Court, suggesting partiality and unfairness on the part of the Munsif.

The Munsif drew up a proceeding under ss. 13, 14 Of the Legal Practitioners Act, 1879, against the pleader and submitted a report to the High Court through the District judge.

An application to the Additional District judge was filed by the pleader, for time to move the High Court to get an order to have the matter heard by some judicial Officer other than the

168

Munsif who had made the report. One month's time was accordingly granted, and for some reason which is not very apparent, the Additional District judge sent the record back to the Munsif. The Additional District judge made an effort to settle the trouble. It was arranged that the pleader should apologise and a resolution should be passed by the members of the local Bar Association. Accordingly, the pleader appeared in the Court of the Munsif and filed a written apology and expressed his regret, and the Munsif dropped the proceeding. It was later found that the resolution was not passed in the terms suggested by the Additional District judge, and the terms of settlement suggested by the latter were not fully carried out. Accordingly, the proceeding was re-opened and the report was re-submitted to the District judge who with his opinion forwarded the same to the High Court. The High Court suspended the pleader for 5 years.

It was contended on behalf of the appellant that there was no valid reason for reviving the proceeding, after it had once been dropped on the submission of an apology and expression of regret.

Held, that the report under s. 14 of the Legal Practitioners Act is a report which is submitted to the High Court. When a report is made to the High Court by any Civil judge subordinate to the District judge, the report shall be made through the District judge and the report must be accompanied by the opinion of such judge. Once the report has been made, it is not open to the District judge to send back the record to the Subordinate Civil judge, and no order passed by the Subordinate Civil judge can have the effect of terminating or bringing to an end the proceeding. The High Court alone is competent to pass final orders on the report. A member of the Bar is an officer of the Court, and though he owes a duty to his client and must place before the Court all that can fairly and reasonably be submitted on behalf of his client, he also owes a duty to the Court and must uphold the dignity and decorum of the Court in which he is appearing. Making amputations of partiality and unfairness against the subordinate Civil judge in open Court is scandalizing the Court in such a way as to pollute the very fount of justice ; such conduct is not a matter between an individual member of the Bar and a member of the judicial Service.

With regard to disciplinary action against a member of the Bar, the Supreme Court would be reluctant to interfere with the order of the High Court unless there are clear mitigating circumstances.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 176 of 1956 and Petition No. 165 of 1955.

Appeal by special leave from the judgment and order dated March 15/23,1955 of the Orissa High Court, in Civil Reference No, 4 of 1954,

169

N. C. Chatterji, D. -N. Mukherjee and R. Patinaik, for the appellant.

Porus A. Mehta and R. H. Dhebar, for respondent No. 1. 1956. November 29. The Judgment of the Court was delivered by

S.K. DAS J.-The appellant is Shri Lalit Mohan Das, a pleader of about 25 years' standing. who ordinarily practiced in the Courts at Anandapur in the district of Mayur bhanj in Orissa. The Munsif of Anandapur, one Shri L. B. N. S. Deo' drew up a proceeding under ss. 13 and 14 of the Legal Practitioners Act, 1879, against the pleader for grossly improper conduct in the discharge of his professional duty and submitted a report to the High Court through the District Judge of Mayurbhanj on December 12, 1953. The District Judge forwarded the report, accompanied by his opinion, to the High Court of Orissa on March 9, 1954. The recommendation of the Munsif was that the pleader should be suspended from practice for one year. The reference was heard by the High Court of Orissa' and by its order dated March 15, 1955, the High Court came to the conclusion that the pleader was guilty of grave professional misconduct and suspended him from practice for a period of five years with. effect from March 15,1955,

Shri Lalit Mohan Das then obtained special leave from this Court to appeal against the judgment and order of the Orissa High Court dated March 15 /23, 1955. He also filed a petition under Art. 32 of the Constitution. Learned counsel for the petitioner has not pressed the petition under Art. 32 and nothing more need be said about it. We proceed now to deal with the appeal which has been brought to this Court on special leave.

The charges against the appellant were the following On July 15, 1953, the appellant was appearing on behalf of the defendant in Suit No. 81 of 1952 pending before the Munsif of Anandapur. On that date, there were two other suits pending before the same Munsif. There were petitions for time in all the three suits.

22

170

The Munsif wanted to take up the oldest suit for hearing, and the oldest suit being Suit No. 54 of 1952, it was taken up first and five witnesses for the plaintiff were examined. Suit No. 81 of 1952 was postponed to August 18, 1953. The appellant, who appeared for the defendant in that suit, was informed of the postponement. When so informed, the appellant made a-remark in open Court and within the hearing of the Munsif to this effect: " If the Peshkar is gained over, he can do everything." He then left the Court. The Munsif was surprised at the remark made and asked the appellant to explain his conduct, by means of a letter sent the same day. As the appellant sent no reply, the Munsif wrote again to the appellant on July 18, 1953. To this letter the appellant sent the following reply: "Dear Sir,

I am painfully constrained to receive memo after memo for some imaginary act of mine not in any way connected with my affairs for which if any explanation is at all warranted officiallv.

For your second memo I felt it desirable as a gentleman to reply.

Further I may request you to be more polite while addressing letters to lawyers.

Yours faithfully,

Sd. L. M. Das. Pleader."

It is obvious that the letter of the appellant was couched in very improper terms and considerably strained the relation between the Munsif and the appellant. The appellant, it may be stated here, was at that time the President of the Anandapur Sub Divisional Bar Association which consisted of about 14 legal practitioners. On July 21, 1953, Shri B. Raghava Rao, who was the predecessor in office of Shri Deo, came to Anandapur. He was the guest of Shri A. V. Ranga Rao, the Sub- Divisional Officer. One Shri N. C. Mohanty, a pleader of. Anandapur and who was related to the appellant, -came -to invite the two Munsifs to a luncheon on the occasion of a housewarming ceremony. On hearing about the trouble between Shri Deo 171

and the appellant, Shri B. Raghava Rao interceded and it appears that the appellant was persuaded to come to the house of the Sub-Divisional officer and to ,say that he was sorry for what had happened in court on July 15, 1953, and that- he did not happean to insult Shri Deo; Shri Deo, it appears, accepted the apology and for the time being. the trouble between the two was smoothed over. A second incident, however, took place on September 25, 1953. The appellant was appearing for a defendant in another suit before the Munsif It was Suit No. 101 of 1952. This suit was fixed for hearing on September 21, 1953. As that date was a holiday, the suit was taken up 'on September 22, 1953. Another suit, Suit No. 86 of 1952, was also fixed for hearing on that date but Shri N. C. Mohanty, pleader for the defendants in that suit, took time on the ground of the illness of one -of the defendants, which ground was supported by a medical certificate. In Suit No. 101 of 1952 also, the defendants applied for time. on the ground of illness of their witnesses; but there being no medical certificate in support of the allegation of illness and no witnesses having been summoned in that suit, the learned Munsif refused to grant time, and one Shri P. N. Patnaik who also represented the defendants agreed to go on with the suit. The suit was then heard for two days, i. e., on September 22 and 23, 1953, and at the request of the defendants' lawyers the hearing of arguments was postponed to September 25, 1953. On that

date the appellant came to Court accompanied by his junior Shri P. N. Patnaik, for the purpose of arguing the case on behalf of the defendants. At the very outset of his arguments the appellant made the follwing remarks:The Court is unfair to me, while the Court was fair to Mr. Misra (meaning Shri Bhagabat Prasad Misra who was appearing for the plaintiffs in that suit). The Court is accommodating and granting adjournments to Mr. Misra while it was not accommodating me.". The Munsif took objection to these remarks but nothing untoward happened. The appellant concluded his arguments.

172

A third incident brought matters to a climax, and this incident took place on September 29, 1953. The appellant was appearing for the defendants in Suit No. 6 of 1951. In that suit a preliminary point of jurisdiction and sufficiency of court fees was raised and Shri B. Raghava Rao, the predecessor in office of Shri Deo, had dealt with the point and decided it against the appellant's client. A Civil Revision taken to the High Court was also rejected. 'The appellant, however, again pressed the same preliminary point and on September. 29, 1953, Shri Deo passed an order dismissing the preliminary objection. When this order was shown to the appellant, he stood up and shouted at the top of his voice-I'I on behalf of the Bar Association, Anandapur, challenge the order of the Court,. The Court has no principle as it is passing one kind of order in one suit and another kind of order in another suit." The Munsif, it appears, was disgusted at the conduct of the appellant and he stood up and, left the Court room, directing the bench clerk to send a telegram to the District Judge., A telegram was accordingly sent to the District Judge asking him to come to Anandapur. The District Judge asked for a detailed report which was sent on October 1, 1953. On October 5, 1953, the Munsif drew up a proceeding against the appellant on a charge under s. 13 of the Legal Practitioners Act referring therein to the three incidents mentioned above. The appellant was asked to show cause by October 26, 1953. On November 3, 1953, the appellant denied the allegations made and took up the attitude that the Munsif was not competent to hold the enquiry on the ground that the Munsif was in the position of a complainant. The appellant gave a different version of what happened on the three dates in question. With regard to the incident of July 15, 1953, the appellant's plea was that some other client had come to him. in connection with a criminal case pending in another Court and to that client the appellant had said that an enquiry should be made from the Peshkar as to the date fixed. With regard to the incident, on September 25, 1953, the plea of the appellant was^ total denial, and with regard to the last incident, the appellant said

173

that the Munsif behaved rudely- and wanted to' assault the appellant, for which the appellant appears, to have filed a petition to the Governor of Orissa on September 30, 1953, for according sanction for the prosecution of the Munsif. It may be stated here that on October 8, 1953, a resolution was passed, numbered Resolution 6, which purported to be a resolution on behalf of the Bar Association, Anandapur. The resolution was in these termis:

"Resolved that on September 29, 1953, the Court's (Munsif) action on the. dais in rising from the chair, thumping on the table, shouting at the top of his voice, and using the words 'shut up' against one honourable member (President) of this Bar Association is quite unprecedented.,

undesirable and affecting the prestige of the Bar and may cause apprehension in the mind of the litigant public to get fair justice."

It may be stated that some other members of the Bar dissociated themselves from the a id resolution at a later date. The proceeding against the appellant under the Legal Practitioners Act stated, as we have said earlier, on October 5, 1953, and the appellant filed his written statement on November 3, 1953. On November 5, 1953, the Munsif sent the record to the District Judge in connection with the plea of the appellant that the enquiry should be made by some other judicial officer. The District Judge, however, took the view that under the provisions of ss. 13 and 14 of the Legal Practitioners Act the enquiry should be made by the Munsif himself and the records were accordingly sent back to the Munsif. Thereafter, the appellant non-co- operated and did not appear at the enquiry though more than one communication was sent to ham The enquiry was concluded on December 11, 1953, and the Munsif submitted his report. to,. the High Court through the District Judge on December 12, 1953. On December 22, 1953, the appellant filed an application to the Additional District Judge for time to move the High Court to get an order to have the matter heard by some other judicial officer. One month's time was 174

accordingly granted and the Additional District Judge, for some reason which is not very apparent, sent the record back to the learned Munsif In the meantime, the Additional District Judge, it appears, made an effort to settle the trouble. On December 23, 1953, he met the members of the Bar Association and the Munsif at the inspection bungalow at Anandapur on his way to Mayurbhanj. At a -meeting held there, a copy of a draft resolution to be passed by the members of the Bar Association, Anandapur, was made over. This draft resolution was in these terms:

"This Association re rets very much that an incident relating to the bench clerk of the Civil Court. should have led to the subsequent unhappy differences between the Bench and the members of the Bar. As in the interest of the litigant public it is felt not desirable to allow these strained feelings to continue further, this Association unanimously resolves to withdraw Resolution No. 6 dated October 8, 1953, passed against the Court and communicate copies of the same to the addressees previously communicated. It is further resolved to request the Court to see to the desirability of withdrawing the proceedings that had been started against the various members of the Bar and their registered clerks on their expressing regret to the Court individually in connection with those proceedings. It is further resolved that the members of the Bar involved in the proceedings be requested to take immediate steps in this direction. The Association hopes that the bench clerk who has -to some extent been the cause for this friction between the Bench and the Bar would be replaced by a person from a different place at an earlier date." On January 8, 1954, the appellant appeared in the Court of the Munsif and filed a written apology and expressed his regret. His signature wag taken on the order-sheet and the order of that date reads:

"Sri L. M. Das, pleader, appears and expresses his regret. So the proceeding No. 2 of 1952 is dropped. Intimate Additional District Judge."

No resolution, however, was passed in the terms 175

suggested by the Additional District Judge. On January 19, 1954, two resolution,% were passed in the following terms: "No. 1. In - view of the fact that past misunderstandings between the Munsif and members of the Bar caused by an incident relating to the bench clerk of the Civil Court, have been removed by amicable settlement of differences existing between both parties, it is unanimously resolved that resolution No. 6 dated October 8, 1953, stands withdrawn.

No. 2. It is further resolved that the copies of the above resolution be sent to the addressees previously communicated of resolution No. 6 of October 8, 1953."

The learned Munsif, it appears, wanted to see the minute book of the Bar Association, presumably to find out in what terms the proposed resolution was passed. There was again trouble between the Munsif and the appellant over the production. of the -minute book. Ultimately, the minute book was produced, and on February 2,1954, the Munsif expressed the view that the resolution passed did not fully carry out the terms of settlement suggested by the Additional District Judge. Accordingly, the proceeding was re-opened and the record was re-submitted to the District fudge. The District Judge thereupon sent the report of the Munsif to the High Court accompanied by his opinion. The High Court dealt with the report with the result which we have already indicated.

The main contention of Mr. N. C. Chatterji, who has appeared on behalf of the appellant is this. He has submitted that there was no valid reason for reviving the proceeding against the appellant, after the proceeding had been dropped on January 8, 1954, on the submission of an apology and expression of regret by his client; because, in substance and effect, the terms of the settlement suggested by the Additional District Judge had been complied with. According to Mr. Chatterji an expression of regret having been made earlier than the passing of the resolutions on January 19, 1954, by the Anandapur Bar Association and the bench clerk having already been transferred from

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Anandapur, the resolutions could not be in the same terms as were suggested by the Additional District Judge; but the two resolutions passed on January 19, 1954 coupled with the expression of individual regret made on January 8, 1954, complied in substance with the essential terms of the draft resolution which the Additional District Judge had made over on December 23, 1953. Mr. Chatterji has contended that this view of the matter has not been properly considered by the High Court. He has submitted that in view of the order passed by the learned Munsif himself on January 8, 1954, the proceeding against the appellant should be treated as having been dropped and concluded on that date.

Mr. Chatterji has also drawn our attention to ground No. VI in the petition for special leave dated May 9, 1955, in which the appellant said that he was " willing and prepared to submit before this Court expressions of unreserved regret and apology for his error of judament and indiscretion, if any, in the discharge of his professional duties." We cannot accept the contention of Mr. Chatterji that the order passed by the learned Munsif on January 8, 1954, had the effect of terminating and bringing to an end the proceeding against - the appellant. The learned Judges of the High Court rightly pointed out that the report of the Munsif dated December 12, 1953, was a

report which was submitted to the High Court. Under the provisions of s. 14 of the Legal Practitioners Act, such a report had to be forwarded to the High Court by the District Judge accompanied by his opinion. It was not open to. the Additional District Judge to send back the record to the Munsif The efforts of the Additional District Judge were, indeed, well-intentioned; but at that stage, after the Munsif had made his report to the High Court, the High Court alone Was competent to pass final orders in the matter. Apart, however, from that difficulty, we are not satisfied that the terms of settlement suggested by the Additional District Judge were fully complied with in this case. It is true, that the appellant did express his

177

regret and to that extent the settlement suggested by the Additional District Judge was carried out. It is also true that by the resolutions passed on January 19, 1954, the earlier resolution of October 8, 1953, was cancelled, but one essential and important part of the terms of settlement suggested by the Additional District Judge was that the Association should express regret at what had happened. Resolution No. I dated January 19, 1954, was so worded as to give the impression that the misunderstanding between the Munsif and the appellant was all due to the bench clerk and that misunderstanding having been removed Resolution No. 6 dated October,$, 1953, should be withdrawn. There is nothing in the resolution to show that the appellant was in any way at fault, a fault which he had expiated I by an expression of regret. It may be pointed out that the earlier ,resolution, Resolution No. 6 dated October 8, 1953, had been communicated to a large number of persons and authorities and the later resolution dated January 19, 1,954, passed in the diluted form in which it was passed, could hardly undo the damage which had been made by the earlier resolution.

On merits we agree with the High Court that the appellant was undoubtedly guilty of grave professional, misconduct. A member of the Bar undoubtedly owes a duty, to his client and must place before the Court all that can fairly and reasonably be submitted on behalf of his client. He may -even submit that a particular order is not correct land may ask for a review of that order. At the same time, a member of the 'Bar is an officer of the Court and owes a duty to the Court in which- he is appearing. He -must phold the dignity and decorum of the Court and must not do any thing to. bring the Court itself into disrepute. The appellant before us grossly' overstepped the limits of proprieety when he made imputation$; of partiality and unfairiness against the Munsif in open Court. In suggesting that the Munsif followed no principle -in his orders the appellant was adding insult to- injury, because the 'Munsif -had merely up held an order of his predecessor on the preliminary point of jurisdiction and Court fees,

23

178

which order had been upheld by the High Court in s revision. Scandalising the Court in such manner is really polluting the very fount of justice; such conduct as the appellant indulged in was not a matter between an individual member of the Bar and a member of the judicial service; it brought into disrepute the whole administration of justice. From -that point of view, the conduct-

of the appellant was highly reprehensible. The appellant gave no evidence in support of his version of the incidents, though he had an opportunity of doingso, if he so desired.

The only point left for consideration, is the question of punishment. On a matter of this nature, this Court would be reluctant to interfere with the order of the High Court as respects the disciplinary action to be taken against a member of the Bar who has been guilty of professional misconduct. There are, however, two mitigating circumstances. One is that the learned Munsif himself recommended suspension of practice for one year only. The appellant was suspended from practice with affect, from March 15,1955. The order of suspension has now lasted for a little more than a year and eight months. The second mitigating circumstance is that the appellant did file la written apology and expressed regret to the learned Munsif onJanuary 8, 1954. It is unfortunate that the appellantdid not take up a more contrite attitude in the High Court. In this Court, the appellant tried to make out that the proceeding against him should not have been revived; he however showed his willingness to offer an apology and ex pression of regret Having regard to all the circumstances, we think that the punishment imposed errs -on the side of excess. We -would accordingly reduece the period of susppusion to, two years only.

In the result, the petition, under Art. 32 is dismissed and the appeal is,also dismissed subject to the reduction of the period of suspension as indicated above. In the circumstances of this case, there will be, no 'order for costs.

Appeal dismissed

179

In Re: Shri 'M', An Advocate Of The ... vs Unknown on 17 October, 1956

Equivalent citations: AIR 1957 SC 149, 1957 CriLJ 300, 1956 1 SCR 811

Author: Jagannadhadas

Bench: Jagannadhadas, B Sinha, V Ayyar

JUDGMENT

Jagannadhadas, J.

1. These proceedings before us arise out of a summons under Order IV, rule 30 of the Supreme Court

Rules, 1950, (as amended) issued to Shri 'M', who was originally an Agent of this Court and became an

"Advocate on record" under the new rules of this Court which came into force on January 26, 1954. The

summons issued calls upon him to show cause why disciplinary action should not be taken against him. It

arises on a complaint against him made to the Registrar of this Court by one Attar Singh on December 5,

1955. The substance of that complaint is as follows. The complainant was the appellate in Criminal Appeal

No. 12 of 1950 in this Court. Shri 'M' acted for him in connection with the appeal. A sum of Rs. 750 was

supplied to Shri 'M' for the printing charges therein. This sum was deposited in due course in the Punjab

High Court from whose judgment the appeal arose. There remained an unspent balance of Rs. 242-1-9 out

of it. Shri 'M' withdrew that money from the High Court without the authority and the knowledge of the

complainant. When, later on, the complainant became aware of it, he demanded refund of the same. Shri

'M' first denied receipt of the money, and thereafter refused to refund it (claiming, as appears later in the

evidence, to have appropriated it towards the balance of fees said to be due to him). This complaint was in

the usual course put up before his Lordship the Chief Justice who directed the Chamber-Judge, our

learned brother, Bhagwati, J., to enquire into it. Notices were issued thereupon both to Shri 'M' and the

complainant as well as to three other Advocates of this Court who happened to be associated with that

appeal. The enquiry before the learned Judge was fairly elaborate. Thereat, certain conclusions were

reached on the basis of which charges were framed against Shri 'M'. The present summons to Shri 'M' is

with reference to those charges and this Bench has been constituted as a Special Bench under Order IV,

rule 30 of the Supreme Court Rules to deal with this matter. The learned Attorney-General has appeared,

on notice, to assist the Court.

2. The rules of this Court do not provide for the procedure to be adopted in such cases, except to say that

"the Court shall issue, in the first instance, a summons returnable before the Court or before a Special

Bench to be constituted by the Chief Justice to show cause against specified matters. " There have been no

precedents of this Court so far, to indicate the exact procedure to be adopted. The only previous case of

professional misconduct on summons under Order IV, rule 30 of the Supreme Court Rules which this

Court had occasion to deal with, was that reported in In the matter of Mr.'G', a Senior Advocate of the

Supreme Court . But that was a case in which action had been duly taken against the Advocate by the

Bombay High Court in connection with alleged misconduct arising within its jurisdiction. The summons

issued to the Advocate by this Court was with reference to the same matter but as regards his position as a

Supreme Court Advocate. (We understand that there were also two such cases in the Federal Court). In

the normal course, and in view of the rather elaborate enquiry which was held by our learned brother,

Bhagwati J., we should have been content to confine ourselves to a mere hearing of arguments on the

material recorded in that enquiry and come to our own conclusions with reference to the charges set out

in the summons. But at the outset, objection was taken to our adopting such a course. The validity of the

summons was questioned. It was said that under Order IV, rule 30 of the Supreme Court Rules, the

enquiry was to follow a summons which is contemplated as the first step therein. It was also said that the

enquiry having been in Chambers, the statements of witnesses were not on oath. The learned Attorney-

General was also inclined to think that there was force in the objections raised. After discussion in court

with the Advocates on both sides we felt it desirable to refrain from any decision on the preliminary

objection and to give the Agent complained against, the opportunity of a fresh enquiry in open Court on

formulated charges. We accordingly directed by our orders dated May 9, 1956, and September 13, 1956,

that evidence should be taken afresh before us and that procedure, substantially as in a warrant case,

should be adopted as far as possible under the amended section 251-A of the Criminal Procedure Code,

subject to such modifications therein as may appear to be just and expedient in the circumstances of this

case and without affecting the rules of natural justice. We treated the enquiry in Chambers as a

preliminary enquiry and heard arguments on both sides with reference to the matter of that enquiry. We

came to the conclusion that this was not a case for discharge at that stage. We accordingly reformed the

charges framed by our learned brother, Bhagwati J., and added a fresh charge. No objection has been

taken to this course. But it is as well to mention that, in our opinion, the terms of Order IV, rule 30 of the

Supreme Court Rules do not preclude us from adopting this course, including the reframing of, or adding

to, the charges specified in the original summons, where the material at the preliminary enquiry justifies

the same. The fresh enquiry before us in Court has proceeded with reference to the following charges as

reframed and added to by us.

"You, 'M', once an Agent of this Court and thereafter an Advocate on record of this Court, are guilty of

professional misconduct in that,

Firstly, you having deposited a sum of Rs. 750 in the Punjab High Court towards the printing charges of

the appeal paper book in Supreme Court Appeal No. 12 of 1950 on behalf of your client, Attar Singh, and

having the custody of the receipt issued by the Punjab High Court in respect of the same, applied for the

obtained from the Punjab High Court without the authority of your client Attar Singh the balance of Rs.

242-1-9 in the months of March, 1952.

Secondly, that after obtaining the said sum of Rs. 242-1-9 as above from the Punjab High Court you

retained that sum with you and did not return any part thereof to your client, Attar Singh, even though he

frequently called upon you to do so and even though you are not entitled to recover from him by way of

your professional charges anything beyond a sum of Rs. 72-15-6 by reason of your having agreed to

receive a sum of only Rs. 100 towards your fee and no more.

Thirdly, that you after receiving the sum of Rs. 242-1-9 in March 1952, retained the said sum, without any

intimation to your client Attar Singh and without claiming any amount as due from him by way of fees to

you and without lodging a bill for taxation against him for a period of over three years".

3. The undisputed facts are as follows. The complainant, Attar Singh, engaged a Senior Advocate of this

Court, Sardar Raghbir Singh, who associated with himself Shri M. K. Madan as the Junior Advocate and

Shri 'M' as the Agent in the case. Criminal Appeal No. 12 of 1950 was filed by all these three gentlemen

with reference to a Vakalatnama executed by the complainant, Attar Singh, in favour of the Agent, Shri

'M'. The complainant had to deposit a sum of Rs. 750 in the Punjab High Court for the preparation of the

printed record in the appeal. Shri 'M' was entrusted with a bank draft for the said amount. He deposited it

in the Punjab High Court. A receipt for the amount was issued in Shri 'M's name. The printed record in

the case was made ready and dispatched to the Supreme Court about the end of December, 1951.

Thereafter Shri 'M' applied to the High Court for refund of the unspent balance. He received from the

High Court in March, 1952, the sum of Rs. 242-1-9 as the unspent balance. This amount has not been paid

to the complainant by Shri 'M' who claims to have appropriated it towards fees said to be due to him.

4. Now the case of the complainant in this. When he filed the appeal he was impecunious as he had lost

his job by reason of his conviction. He approached Sardar Raghbir Singh, Senior Advocate, through a

relation of his and requested him to arrange for the conduct of the appeal on his behalf and to accept

therefore a fee of Rs. 600 and no more, for himself, a Junior Advocate to assist him as well a for an Agent

to be in charge, all taken together. It is the complainant's case that Sardar Raghbir Singh agreed to the

same and was paid the said amount of Rs. 600 at the very outset, i. e., a few days before the actual filing of

the appeal memorandum into this Court and that he (the complainant) was not directly concerned with

the fixing up of the Junior Advocate and of the Agent or with the internal distribution of the said sum of

Rs. 600 as between the three persons. His case accordingly is that Shri 'M' was not entitled to any further

amount by way of fees and that he unauthorisedly withdrew the amount and appropriated it towards

alleged fees. Attar Singh, the complainant, has been examined in support of his case. Sardar Raghbir

Singh and Shri Madan have also been examined to substantiate it. The evidence of Sardar Raghbir Singh

is that he was approached by Attar Singh through a common friend, that he was asked to accept a

consolidated fee of Rs. 600, that in consultation with a Junior Advocate, Shri Madan, whom he knew well,

he accepted the engagement, that Shri Madan brought in Shri 'M' as the Agent and that the amount of Rs.

600 was paid to him by Attar Singh and was shared by the three Rs. 300 for the Senior, Rs. 200 for the

Junior, and Rs. 100 for the Agent. His evidence is that Shri 'M' was not known to him previously but that

he was fixed by Shri Madan, that Shri Madan informed him about Shri 'M' having agreed to accept the

engagement for a fee of Rs. 100 without more and that in pursuance of this arrangement the said sum of

Rs. 100 was paid over to Shri 'M' and Rs. 200 to Shri Madan. The Junior Advocate, Shri Madan, has been

examined to substantiate that it was he who fixed Shri 'M' as the Agent in the case with the arrangement

that the Agent should charge only Rs. 100 as his fee. The evidence of these three persons, Attar Singh,

Sardar Raghbir Singh and Shri Madan, is that all the above took place a few days prior to the filing of the

appeal into Court. The appeal was admittedly filed on the 11th May, 1950. Shri 'M' has offered himself as a

witness on his own behalf. He admitted that he was fixed up as an Agent in the appeal through Shri

Madan at the request of Sardar Raghbir Singh, but he says that he is not aware of any arrangement

between the complainant and Sardar Raghbir Singh or about the payment of Rs. 600 by the complainant

to Sardar Raghbir Singh on the alleged arrangement. He says that, having been taken as an Agent into the

case by Sardar Raghbir Singh on the recommendation of Shri Madan, he was paid at the time of filing of

the appeal only a sum of Rs. 50 by Attar Singh himself as part payment of his fees and was promised that

reasonable fee would be paid later on. He denies that there was any understanding or arrangement that

only a sum of Rs. 100 was to be paid to him and also denies that he was paid by Sardar Raghbir Singh the

sum of Rs. 100. To substantiate that the alleged arrangement to accept only Rs. 100 could not be true, he

gives evidence that even the Junior, Shri Madan, sent to him in August, 1952, a bill for Rs. 320 which he

says he passed on to Attar Singh and of which he purports to produce a copy. But Shri Madan denies that

he ever sent such a bill and Attar Singh denies that he received any such.

5. The controversy on this part of the case is covered by charge number two. The two material facts which

have to be determined are (1) whether the Agent, Shri 'M', came into this case on a definite arrangement

that his entire fee for the case was to be Rs. 100, and (2) whether he was in fact paid the said sum of Rs.

100 by Sardar Raghbir Singh at the outset. The complainant, Attar Singh, is not by himself a direct

witness either to the arrangement or to the fact of payment of Rs. 100. The only material fact which he

spoke to on this part of the case is as to his arrangement with Sardar Raghbir Singh. It was that he should

fix up, a Junior Advocate and an Agent of his own choice, and accept the sum of Rs. 600 as fees for all the

three of them together without claiming anything more. He says also that the said sum of Rs. 600 was

paid by him to Sardar Raghbir Singh at the very outset. Sardar Raghbir Singh admits the payment. There

is no reason to doubt that a sum of Rs. 600 was in fact paid by Attar Singh to Sardar Raghbir Singh a few

days before the actual filing of the appeal in May, 1950, though Shri 'M' denies knowledge of it. On the

evidence as given before us, Shri Madan is the only direct witness to the arrangement with Shri 'M' that a

sum of Rs. 100 is to be paid to him and that he should claim nothing more for the conduct of the entire

case. The arrangement itself was not made in the presence of Sardar Raghbir Singh but it is Sardar

Raghbir Singh's evidence that he was informed about it by Shri Madan. It is also Sardar Raghbir Singh's

evidence that in pursuance thereof Shri 'M' was paid by him Rs. 100. Thus on the evidence, as given, Shri

Madan is the direct witness for the arrangement and Sardar Raghbir Singh is the direct witness for the

payment and each became aware of the other fact from the conversations between them at the time and in

the course of events. The evidence of both these gentlemen has been commented upon and criticised by

the learned Advocate for Shri 'M'. It has been pointed out that these two gentlemen had, in these

proceedings, occasion to speak to the facts at three stages, first in answer to letters of enquiry written to

each of them by the Registrar of this Court after the complainant was filed and Shri 'M' filed his answer

thereto, next when they were examined formally before the learned Judge in Chambers, and now when

they are examined before us on oath. It is pointed out that there are substantial variations and

developments in their versions. The explanation given by both of them for the variations is that at the

earlier stages they did not desire to be more specific or categorical since they were given to understand

that the matter would somehow be adjusted, that they did not want to harm Shri 'M' and that the lines on

which they were to answer the enquiry from the Registrar, were discussed in a conference between

themselves and Shri 'M' with his Advocates. Shri 'M' also admits that there was such a conference. It is

urged by the learned Advocate appearing for Shri 'M' that this very explanation offered by these two

gentlemen shows that their word, even before us, is not to be taken at its face value. It is also pointed out

that neither of the Advocates could produce any accounts to substantiate the payments alleged to have

been made, nor any record or note as to the amount of fees fixed for each and the arrangement with Shri

'M' that has been spoken to. On the other hand, they admit that they maintain no accounts at all. It does

not also appear that they maintain any satisfactory diaries or other record which might have corroborated

their evidence. The learned Attorney-General while fairly conceding that there is good deal of room for

comment about the evidence of these two gentlemen, urges that we should attach greater value to their

present evidence given on oath particularly in view of the fact that both of them admit the complainant's

story that Rs. 600 was all that was intended to be paid for all the three together and they categorically

admit that they have themselves no further claim against the complainant for the work done by them. The

learned Attorney-General submits that it is unreasonable to suppose that while both of them accepted

comparatively small fees for the whole case, the Agent, Shri 'M', was promised 'a reasonable fee' without

any fixation. He urges further that on his own admission, Shri 'M' can point to nothing in the diaries or

registers said to have been maintained by him for his cases, which may substantiate his version. He also

urges that in view of the probabilities and the evidence we should accept not merely that there was a

definite arrangement with Shri 'M' to accept only Rs. 100 for the entire case but also that he was in fact

paid the said sum of Rs. 100 then and there. After having given our consideration to the entire evidence

on this part of the case, we are of the opinion that we should dispose of this case without coming to any

definite conclusion on the disputed facts, material for this issue. All the we need say is that we are not

quite happy about the evidence on both sides bearing on this matter. We are inclined to refrain from

recording a categorical finding on this issue, which if found against Shri 'M', may amount virtually to a

finding of criminal misappropriation. We are willing to dispose of this issue in favour of Shri 'M' by giving

him, so far as these proceedings are concerned, the benefit of doubt in respect of the disputed facts

material to this issue.

6. The matter arising under charge No. 1 may also be shortly disposed of. The question under that charge

is whether, for withdrawing the unspent balance from the Punjab High Court, Shri 'M' had the requisite

authority. In support of the alleged authority, he relies both on specific authority given to him orally or on

behalf of the complainant, Attar Singh, and also on the authority in his favour for the withdrawal as

implied from the wording of the Vakalatnama executed in his favour by Attar Singh. The evidence in

support of the specific oral authority is his sole statement before us on oath. He deposes that he was

authorised by the relation (or pairokar) of the complainant, Attar Singh, (who used to go to him in

connection with the appeal) to withdraw the unspent balance from the High Court. He stated that he was

unable to give the name of the Pairokar but that he was sitting in Court while he was giving evidence

before us. The alleged relation or pairokar has not been examined as a defence witness. In the proceedings

before our learned brother, Bhagwati J., his version on this part of the case is contained in paragraph 8 of

his affidavit dated the 5th March, 1956, which is as follows :

"I requested Attar Singh to remit funds for prosecuting appeal on 21-12-51 and with his permission wrote

to the High Court on 17-1-52 for refund of the balance out of Rs. 750. Thus I received Rs. 242-1-9 from

High Court in March, 1952".

7. This clearly indicates that his case then was that he had the permission of Attar Singh himself for

withdrawal of the balance. But when examined before our learned brother, Bhagwati J., he said as follows

:

"Somebody asked me to get the money from the High Court to meet the expenses. Subsequently I wrote to

the High Court".

8. In answer to the specific question who that somebody was he said "I do not remember exactly who it

was". He did not then say that he was the complainant's relation or pairokar. In his cross-examination

before us he says "His (Attar Singh's) relation came to me and told me that I should get the money from

the High Court". When further cross-examined with reference to his previous statements he said that

when he used the phrase "with his permission" in his affidavit he meant to indicate the agent or pairokar

of Attar Singh and when further pressed as to who that relation was and whether he knows his name he

was unable to give any satisfactory answers. His evidence on this part of the case is highly unsatisfactory

and cannot be accepted. We have no hesitation in coming to the conclusion that he has not proved the

specific oral authority, which he has pleaded, for the withdrawal of the balance amount.

9. What is next relied upon in support of the authority is the Vakalatnama executed by Attar Singh in his

favour. The Vakalatnama is in form No. 3 of the Fifth Schedule of the Supreme Court Rules, 1950, before

their amendment in 1954. What is relied upon is that this form authorises the Agent not only to deposit

moneys but also to draw moneys. It is also urged that an Agent has the power by virtue of the specific

wording of the vakalatnama "to do all things incidental to his acting" for his client in connection with the

appeal. It is urged that the deposit of printing charges and the withdrawal of the unspent balance of the

printing charges are all acts incidental to acting for a client in connection with his appeal. On the other

side it is pointed out that the form itself indicates that the acting is to be in connection with the work in

the Supreme Court since it is headed "in the Supreme Court of India" and that the authority arising under

this vakalatnama cannot extend to acts to be done in the Punjab High Court. We do not consider it

necessary to decide about the exact scope of the power exercisable under the vakalatnama with reference

to the form that has been employed. There is the outstanding fact in this case that the amount has been in

fact paid by Shri 'M' direct into the Punjab High Court on a letter issued by the High Court to him. There

is also the fact that the receipt for the said amount has been issued by the High Court to him and in his

name. There is the further fact that the unspent balance has been paid by the High Court directly to him

without requiring any further written power or authority, apparently because he was the depositor and

was therefore presumably entitled to withdraw the unspent balance. In view of these facts it would appear

that the High Court itself was under the impression that the withdrawal was within the scope of Shri 'M'

authority as an Agent for the appeal in the Supreme Court. This impression, if wrong, was one that may

well have been shared by Shri 'M' equally with the High Court. In these circumstances, while we definitely

hold that the specific oral authority set up has not been proved, it appears to us that no serious notice

need be taken of this charge.

10. What remains is charge No. 3 which is as follows :

"That you after receiving the sum of Rs. 242-1-9 in March 1952, retained the said sum, without any

intimation to your client Attar Singh and without claiming any amount as due from him by way of fees to

you and without lodging a bill for taxation against him for a period of over three years".

11. The questions which require consideration under this charge are (1) whether Shri 'M' intimated Attar

Singh about the withdrawal of the unspent balance of printing charges, (2) whether Shri 'M' intimated

Attar Singh that any fee remained due and made any demand in that behalf, and (3) whether Shri 'M' was

justified in retaining the amount towards fees without lodging a bill for taxation against his client.

12. It is now necessary to recall the relevant facts and enumerate some further facts. Criminal Appeal No.

12 of 1950 was filed into this Court on May 11, 1950, by the Agent, Shri 'M', on the basis of a vakalatnama

signed by Attar Singh without date and accepted by Shri 'M' on May 11, 1950. Attar Singh says that when

he signed the vakalatnama there were blanks therein and that after signing, he gave the vakalatnama with

the blanks to Sardar Raghbir Singh. It is his evidence that having fixed the engagement with Sardar

Raghbir Singh and paid the money into his hands, he went away leaving the actual filing of the appeal, on

a later date, to Sardar Raghbir Singh. Shri 'M' who accepted the vakalatnama on May 11, 1950, and who

filed the appeal memorandum into Court on the same date with the signatures thereon, also of Sardar

Raghbir Singh and Shri Madan, admits that the blanks in the vakalatnama were filled in by him in his own

handwriting. But he says that Attar Singh was also present at the time of his acceptance of vakalatnama

and the filing of the appeal and that Attar Singh then paid him a sum of Rs. 50 without any settlement of

fees. He says further that when he accepted the engagement he was given to understand by Sardar

Raghbir Singh that he would be paid reasonable fee. This was at the time when the appeal was filed in

Court and presumably in the presence of Attar Singh according to him. Attar Singh denies that he was

present or paid Rs. 50 to Shri 'M' at the time filing the appeal or that he met Shri 'M' at all at the time. On

his evidence, if accepted, Shri 'M' could have no expectation of any further payment of fees. About an year

later there was the payment of Rs. 750, towards the printing charges. It is admitted that the amount was

supplied by means of a draft in favour of the Deputy Registrar of the High Court given to Sardar Raghbir

Singh, by the brother-in-law of Attar Singh. This was passed on to Shri 'M' who sent it on to the High

Court. A receipt dated July 19, 1951, was issued therefore by the High Court in Shri 'M's name. It is in

evidence that the printed record was received in the Supreme Court in December, 1951. Intimation of the

same was presumably given to the Agents concerned in due course. Shri 'M' applied to the High Court in

January, 1952, for refund of the unspent balance of the printing charges and received an amount of Rs.

242-1-9 in March, 1952. The appeal was set down for hearing in May 1952. It is the evidence of Attar

Singh that on receiving intimation that the appeal was coming up for hearing he came down to Delhi from

Bombay, where he was employed at the time, and found that Sardar Raghbir Singh had left for China and

was not available for arguing the appeal. His evidence is that he enquired from the wife of Sardar Raghbir

Singh who told him to meet Shri 'M' which he did. He says that they came to the conclusion that Shri

Umrigar, an Advocate of this Court, was to be engaged to argue the appeal. Thereupon Shri Umrigar was

fixed up. The appeal was not actually taken up in May, 1952, as expected. The engagements of both Sardar

Raghbir Singh and Shri Madan were terminated sometime in August, 1952, by Shri 'M' under instructions

of Attar Singh. The appeal came up for hearing, later on, in November, 1952. It was Shri Umrigar who

argued the appeal. Admittedly Shri 'M' was also present at the hearing and instructed Shri Umrigar. The

judgment in the appeal was delivered on the 5th December, 1952, allowing the appeal and remanding it

for further hearing by the Sessions Court, as an appellate court, on the evidence on record. It would

appear that nearly two years later, i. e., on November 24, 1954, Attar Singh applied to the Punjab High

Court stating that he had paid Rs. 750 for the printing charges of the record in his appeal and that some

balance was lying to his credit out of the said amount and requesting that the same may be remitted to

him. He received a reply thereto from the Deputy Registrar of the Punjab High Court dated October 17,

1955, intimating that the unspent balance of Rs. 242-1-9 was refunded to his counsel, Shri 'M' of the

Supreme Court, and advising him to contact him in this behalf. It is in view of this information that Attar

Singh ultimately filed on December 5, 1955, a complaint on which the present proceedings were initiated.

13. The evidence of Attar Singh on this part of the case is quite simple. He says that some time after the

appeal was filed, i. e., in or about January 1951, he went away to Bombay in connection with private

employment which he had obtained there and that he came to Delhi again only in May, 1952, on receiving

intimation that his appeal was expected to be taken up. He says further that since the appeal was not

taken up in May and went beyond the long vacation he got himself transferred to, and remained in, Delhi

since about May, 1952. He says that he came into direct contact with Shri 'M' only from May, 1952, and

that he had not met him till then. It is also his evidence that he was never told by Shri 'M' about the

unspent balance being available or of his having withdrawn the same. He was also not told that any fees

had yet to be paid. He was under the impression that no further fee was due to Shri 'M' and that his fees

must have been paid up at the outset by Sardar Raghbir Singh. There was no demand by Shri 'M' from

him at any time for balance of fees, not even at the time when his appeal was heard by this Court for two

or three days. Towards the end of 1954, he was greatly in need of money on account of the further

proceedings in his appeal consequent on the remand. He then felt that he might enquire from the High

Court about the availability of any unspent balance out of the printing charges deposited and get back the

same and meet his needs. He accordingly wrote a letter to the High Court in November, 1954. He had to

send a number of reminders. He ultimately received the reply dated October 17, 1955, from the High

Court nearly an year after his first enquiry. According to Attar Singh, before he wrote to the High Court

enquiring about the unspent balance, he approached Shri 'M' and enquired from him. It was on his advice

that he wrote to the High Court. His evidence further is that when he actually received the letter from the

Deputy Registrar of the High Court dated October 17, 1955, he again met Shri 'M' about the unspent

balance and enquired of him whether he had received the amount, but that Shri 'M' denied having

received any money. He says that thereafter he confronted him with the reply he had received from the

High Court and that on seeing it Shri 'M' was astonished and told him to come later on. He states that

when he went to him again, Shri 'M' told him that he will return the money after two days, but that

ultimately he evaded him. It was after this that at the suggestion of some friends, he lodged the complaint

with the Registrar of this Court.

14. As against this, Shri 'M's evidence is as follows. When the printed record was received from the High

Court, and he got intimation of the same, he wrote a letter dated December 21, 1951, to Attar Singh

intimating that the printed record had been received in the Supreme Court, that further steps have to be

taken and that he is to supply him with funds therefore. He says that thereafter Attar Singh's relation

came to him in January, 1952, and told him to write to the High Court to get a refund of the unspent

balance of the printing charges. He admits that he received the refund in March, 1952, and says that he

appropriated the same towards his fee. He also says that when in May, 1952, Attar Singh came in

connection with the expected hearing of the appeal, he told him about the unspent balance having been

received by him and that later on, i. e., after the hearing of the appeal was over, he told him that the bill

for the work done by him in connection with the appeal would be about Rs. 500. He denies the version of

Attar Singh that he was not aware of the unspent balance having been drawn and that for the first time he

contacted Shri 'M' in 1954 for the unspent balance and wrote to the High Court on his advice for refund of

the balance, if any. He denies specifically that Attar Singh met him in this connection a number of times

and wrote reminders to the High Court at his instance. He also denies categorically that he was

confronted by Attar Singh with the letter received by him from the High Court and that he then told him

all that had happened.

15. The question before us is which of these versions is to be accepted. Was there any intimation by Shri

'M' to Attar Singh that he withdrew the unspent balance and did he demand from him the alleged balance

of fees ? Admittedly, there was no written intimation and no specific written demand. The only writing

from himself to his client that Shri 'M' relies on, is a letter dated December 21, 1951. He produces an

alleged copy thereof which is as follows :

"S. Attar Singh C/o Gurdwara Sisganj, Delhi.

Dear Sir,

Your appeal pending in the Supreme Court No. 12 of 1950 is ripe for further steps as the record has been

printed and despatched by the High Court, Simla.

Now you have to supply me with funds for drafting petition of appeal, statement of case, affidavits of

service of notices and typing charges.

Since the record has reached the Supreme Court on 12th December 1951, you are to file petition within 30

days of receipt of this date.

Please treat this as very urgent, otherwise the appeal shall be dismissed for non-prosecution".

16. It may be noticed that the wording of this letter does not in terms state that what is being demanded is

his own fees. Paragraph 2 of the letter may well be understood by a lay-man, as asking for nothing more

than expenses to be incurred. Attar Singh deposes that he never received the letter. It is clear from the

evidence that Attar Singh was not in Delhi at the time and it is curious that the letter is addressed to him

at Sisganj Gurdwara, Delhi. Shri 'M' has been cross-examined on this and in our opinion, he has not been

able to give any satisfactory explanation. He says that the address was furnished by Sardar Raghbir Singh.

But Sardar Raghbir Singh was not asked about it. Assuming the letter to be true, it is obvious that it would

not have been received by Attar Singh. Clearly no money has been remitted, nor any written

communication received, in response to this letter. If the letter is true, one would have expect some

further letter to have been written to him with the correct address on proper enquiry. It is to get over this

difficulty that the story has been put forward by Shri 'M' of a relation of Attar Singh having contacted him

in January, 1952, and instructing him to withdraw the unspent balance, if any, of the printing charges.

There is nothing to show that these alleged instructions were by ways of response to the above letter. It is

not a little surprising that the said relation does not appears to have cared to ascertain whether any money

was in fact available or was received. But it is unnecessary to dwell on this any further because we have

already noticed the entire evidence relating to these alleged instructions of the relation and seen how

unsatisfactory it is. We are clearly of the opinion that the story of instructions by the relation is wholly

unreliable. In that view, assuming, without deciding that the letter of December 21, 1951, is true, it is all

the more significant that there are no further reminders to Attar Singh to his correct address right up to

May, 1952, i. e., when the appeal became ready for hearing, though in the interval Attar Singh was not in

Delhi. It is also surprising that even after the disposal of the appeal and up to the stage of the

complainant, Shri 'M' did not make any written demand or send any bill for the fees to Attar Singh. It is

only in the reply dated December 16, 1955 to the complainant, filed before our learned brother, Bhagwati,

J., by Attar Singh that a reference is made to his bill of about Rs. 550 against Attar Singh for the work

done by him on his behalf. The bill was in fact produced at a later date on March 5, 1956, along with his

affidavit filed before Bhagwati, J. In paragraph 9 of that affidavit he says "I, as agent, had lien over the

sum of Rs. 242-1-9 which was appropriated towards my bill for Rs. 542-15-9 (herewith attached). Rs. 250

is still due to me from Attar Singh". That bill has also been marked before us as an exhibit on behalf of

Shri 'M'. It is the evidence of Shri 'M', as already stated, that when he accepted the engagement he was

given to understand that he would be paid a reasonable fee but that there was no settlement at the time.

He is not very clear in his evidence what was the aggregate reasonable fee which he was entitled to. But

from the statement in his evidence that he informed his client after the appeal was finished, that his bill

would be Rs. 500 it may be presumed that his case is that he was entitled to the amount of his bill as

exhibited. If so, there should have been no difficulty in his applying to the Court for taxation against his

client. We have been informed that such a course is permissible under orders of the Court, even in a

criminal matter. But Shri 'M' admits that he took no such step in spite of the fact that a large and

substantial balance should have been due to him according to his case. When asked to explain why he did

not do so, his answer is as follows :

"Because the appeal was remanded and it is a general practice here that when the case is finished the

clients do pay the balance. So we do not insist further. Generally when the appeal or a matter is finished I

do not make complaints or file suits or do anything for the balance of fees because mostly these matters

create fuss. I did not, in this matter, press for the balance".

17. It may be noticed that in the bill the total of the items of out-of-pocket expenses is Rs. 22-15-6, leaving

a balance of Rs. 27-0-6 out of the amount of Rs. 50, which on his own showing, he had received from his

client. All the rest of the bill submitted by him is a claim for fees for various items of work said to have

been done. If it be true, as he says, that he sent in December, 1951, a letter to Attar Singh demanding fees,

it is all the more surprising that he never made any further written demand either during the pendency of

the appeal or at least sent a bill after the disposal thereof, for the balance of the fees, whether or not he

would have felt it advisable later on to take the matter to court for taxation. This admitted inaction

renders it probable that, having obtained the refund of a substantial amount of over Rs. 200 after

December, 1951, without the specific oral instructions or the knowledge of his client or his agent - as we

have already found - he has kept discreetly silent, without intimating to the client the fact of his having

received the balance and without making a demand against him for the fees. It is only now that he claims

a lien on the said amount for a bill which he puts forward, and pleads justification for the retention and

appropriation of the amount on the basis of that bill. Learned counsel for Shri 'M' very strongly urges that

the evidence of Attar Singh that he was not informed by Shri 'M' about having obtained refund of the

unspent balance and that at no time was any demand made to his knowledge for the balance of fees

should be rejected as being utterly improbable. He urges that the evidence of Shri 'M' that he orally

intimated to him the fact of his having obtained refund of the unspent balance, and of his making constant

oral demands for the balance of fees should be accepted. He suggests that it is Attar Singh who discreetly

evaded raising the question about the balance of fees due, with full knowledge that some amount had

already been received by Shri 'M' and that a much larger amount would be found due on a regular bill. He

urges that if there is no reasonable proof of the arrangement that Shri 'M' was to receive only Rs. 100 and

of the fact of payment thereof, it is very unlikely that a professional gentleman like Shri 'M' would go on

working in the appeal without making even an oral demand for fees unless he was permitted by the client

to withdraw and appropriate the amount. He strongly urges that the conduct of Attar Singh himself on

this part of the case gives room for considerable suspicion. It is pointed out that though the appeal was

disposed of in December 1952, he makes no enquiry for the unspent balance until after nearly two years.

It is urged that he has no satisfactory account how he then came to know that there was a balance at all,

the payment of which he might obtain from the High Court. It is submitted that his story that it was at the

instance of Shri 'M' himself that he wrote to the Punjab High Court making enquiries about the balance is

utterly improbable. We are not, however, impressed with the soundness of these comments. We see no

difficulty in accepting the explanation of Attar Singh that he came to think of the possibility of obtaining

the unspent balance, if any, which may be available to him, only when he was hard-pressed for money for

the further conduct of his criminal appeal as a result of the remand. It may or may not be that the letters

of Attar Singh to the Punjab High Court enquiring about the unspent balance were written on the advice

of Shri 'M', but the fact remains that for an adequate reason as given by him he did start enquiries in this

behalf so late as two years after the disposal of the appeal. On this part of the case what is really

significant is that at the earliest opportunity which Shri 'M' had, he did not put forward his present

specific case, of intimation of the refund and of demand of the fees. Para 5 of the complaint of Attar Singh

dated December 5, 1955, states as follows :

"I had throughout been making enquiries from Shri 'M' and he has consistently denied having received

any money from the High Court".

18. In his reply dated December 16, 1955, Shri 'M' has contented himself with a bare denial as follows :

"Para 5 of the application is emphatically denied and not admitted".

19. Even in his later statement, in the form of an affidavit date March 5, 1956, filed before Bhagwati, J. all

that he says is that "on December 21, 1951, he requested Attar Singh to remit funds for prosecuting the

appeal and that with his permission wrote to the High Court on January 17, 1952, for the refund of the

balance. He has attempted to explain that by "his permission" he meant "his pairokar's permission". We

have found that, on the evidence and probabilities, the story of pairokar's permission cannot be accepted

as reliable. The story of his having directly informed Attar Singh about his having got the balance occurs

for the first time in the cross-examination before Bhagwati, J., wherein he says that he told him about it at

the time of the hearing of the appeal. But even there he says that he did not at that time ask for anything

further. There he admits that it is only when Attar Singh asked him to refund the money that he told him

that he should pay him the balance due. Now, it is in this Court in the cross-examination of Attar Singh

that the story of his having informed Attar Singh about his obtaining from the High Court refund of the

unspent balance and of his having demanded the fees due to him, all at the time of hearing of the appeal, -

has been put forward in the following questions and answers.

"Q. In fact, at the time when your appeal was heard Mr.'M' had told you that Rs. 242, had been recovered

from the High Court ?

A. It is far from true.

Q. He also told you that his fees has got to be paid ?

A. No.

Q. You said nothing about it because you knew that more fees than Rs. 242 would be due to Mr.'M' ?

A. The question does not arise".

20. The further cross-examination of Attar Singh is as follows.

"Q. I am putting it to you that your talk that you showed the letter of the 17th October, 1955 to Mr.'M' is a

pure fabrication ?

A. No, it is correct.

Q. I will tell you what had happened. You had asked 'M', 'M' had told you (this is my case) that he had

recovered Rs. 242 and when you said 'what about Rs. 242' he said 'you have got to pay my fees', which

would come to much more, and therefore thereafter there was no further talk between you both ?

A. Nothing was talked by Mr.'M' to me then, nor up till now".

21. This belated case about intimation of withdrawal of unspent balance and about demand for fees having

been made at the time of the hearing of the appeal, cannot be accepted as true. His admission before

Bhagwati, J. that even at the time of the hearing of the appeal (which admittedly took two or three days)

he did not ask for anything further must be accepted as correct. If so that would make it very probable

that the first information to Attar Singh about the fact of Shri 'M' having obtained refund of the unspent

balance of the printing charges was only when the High Court intimated the same to him. It follows that

the first oral demand for the fees by Shri 'M' to Attar Singh, may have been when he was confronted with

the letter of the High Court. This is what he admitted in the enquiry before Bhagwati, J.

22. It may further be noticed that Shri 'M' states in his evidence as follows :

"After I received this money (unspent balance) I appropriated it towards my fee. There was no settlement

of fees between me and my client. Raghbir Singh never told me that I should get only Rs. 50 or Rs. 100".

23. He was cross-examined whether the appropriation was with the consent of the client, as appears from

the following.

"Q. Coming to May, 1952, when you said you told the client that you had received money did you tell him

that you appropriated the money.

A. Yes.

Q. No question therefore remained of any lien. The money was appropriated towards fees.

A. This is all opinion whether it was lien or appropriation. It was lien. So I appropriated it.

Q. You had lien.

A. Yes.

Q. You appropriated with the client's consent.

A. The consent was there".

How unsatisfactory his answers are as to the client's consent for appropriation even on his own case that

the amount was appropriated is noticeable.

We are, therefore, of the opinion that the following facts have been proved. Without the knowledge of or

intimation to Attar Singh, Shri 'M' obtained in March, 1952, from the High Court the unspent balance of

printing charges deposited by him on behalf of his client Attar Singh amounting to the sum of Rs. 242-1-9.

He retained the same without any intimation to his client and without making a demand or lodging a bill

for any amount as due from him by way of fees. The fact of his having obtained the refund became known

to Attar Singh for the first time only by the letter of the Punjab High Court to him and it was only when

Shri 'M' was confronted with the same that he raised the question of payment of fees with Attar Singh.

Prior thereto he denied receipt of any such moneys when asked by his client about and did not make any

demand for fees. In fact he appropriated the amount, on receiving it, without any demand for fees or

lodging a bill for taxation and without the knowledge and consent of the client.

24. The question that next arises for consideration is whether on these facts Shri 'M' is guilty of

professional misconduct. It is urged before us that an Agent has a lien on the moneys of his client coming

into his hands for the reasonable fee that may be due to him if - as may be assumed for the purposes of

this case - the fee was not settled originally. It is urged that in this case Shri 'M' has done nothing more

than exercising that lien and appropriating the amount which legitimately came into his hands towards

what he considered as reasonable fee due to himself leaving the settlement of any further fee that may be

due to him to the good sense and the good will of the client on the termination of the case. It is urged that

on this view his action is bona fide. It is pointed out that while, it may be, that such conduct is not

consistent with the highest professional standards, it cannot be treated as amounting to professional

misconduct. It is urged that it is not every conduct which may be considered unjustifiable or improper

that amounts to professional misconduct if in fact the agent or advocate honestly believed that he was

justified in adopting the course he did, so long as such a course is not, in terms, prohibited by any positive

rules framed by competent authority to regulate the conduct of agents and advocates in such matters. We

are unable to accept this contention. As has been laid down by this Court In the matter of Mr.'G', a Senior

Advocate of the Supreme Court (supra) "the Court, in dealing with cases of professional misconduct is not

concerned with ordinary legal rights, but with the special and rigid rules of professional conduct expected

of and applied to a specially privileged class of persons who, because of their privileged status, are subject

to certain disabilities which do not attach to other men and which do not attach even to them in a non-

professional character". ........"He (a legal practitioner) is bound to conduct himself in a manner befitting

the high and honourable profession to whose privileges he has so long been admitted; and if he departs

from the high standards which that profession has set for itself and demands of him in professional

matters, he is liable to disciplinary action". It appears to us that the fact of there being no specific rules

governing the particular situation, which we are dealing with, on the facts found by us, is not any reason

for accepting a less rigid standard. If any, the absence of rules increases the responsibility of the members

of the profession attached to this Court as to how they should conduct themselves in such situations,

having regard to the very high privilege that an Advocate of this Court now enjoys as one entitled, under

the law, to practice in all the courts in India. We are conscious that at the time when the relevant facts

happened in this case Shri 'M' was only an Agent. But at the time when he was confronted with the letter

of the Punjab High Court intimating receipt of the unspent balance, he had already become an Advocate

on record and we have to deal with this case with reference to rule 30 of Order IV of the amended

Supreme Court Rules. That rule says "Where... the Court is of opinion that an Advocate has been guilty of

misconduct or of conduct unbecoming of an Advocate, the Court may take disciplinary action as provided

therein". Even under rules 31 and 32 of Order IV of the Supreme Court Rules prior to the amendment, the

position would be the same in so far as a matter of the kind with which we are dealing is concerned. It is

true that under rule 32 of the old rules which refers to disciplinary action against agents, the phrase

"conduct unbecoming of an Advocate" is not to be found. But that is probably only because in certain

matters the Agent's position in relation to his client may differ from that of an Advocate. But we have no

reason to think that in respect of a matter such as the one we are concerned with, the standard applicable

to an Agent or to a present "Advocate on record" is anything different. We have no doubt in our mind that

the high standards of the profession demand that when the moneys of the client come into the possession

of an Agent or an Advocate, otherwise that as earmarked fees, he has to treat himself as in the position of

a trustee for the client in respect of the said moneys. Even if he has a lien on such moneys, it would be

improper for him to retain, i. e., to appropriate the same towards his fees without the consent, express or

implied, of his client or without an order of the Court. It may be that in certain circumstances he is

entitled to exercise a lien, but he has to give reasonable intimation both of the fact of moneys having come

into his hands and of the exercise of his lien over them until his account is settled. If there has been no

prior settlement of fees he cannot constitute himself a judge in his own cause as to what would be the

reasonable fee payable to him. This position of trusteeship in respect of moneys of the client in his hands

is all the greater where the moneys represent the unspent balance of what was given for a specific

purpose, such as for payment of printing charges, as in this case. On any such unspent balance, it is well

settled, that he has no lien either under the common law or by the statute. (See Cordery's Law relating to

Solicitors, 4th Edition, page 456 and Halsbury's Laws of England, 2nd Editioin, Vol. 31, page 239, para

265). In this case it appears to us that the retention and appropriation of the money by Shri 'M' without

intimation to the client and without sending a bill to him for his fees or applying for taxation even after

disposal of the appeal constitutes professional misconduct. This is aggravated by the facts emerging from

the evidence of Attar Singh who, Shri 'M' admits, has no animus against him, and whose evidence on this

part of the case we see no reason not to accept. That evidence shows that when in 1954 Attar Singh

enquired of Shri 'M' he denied knowledge of the unspent balance and that when confronted with the letter

received from the Punjab High Court he admitted receipt and demanded fees but evaded the situation

without fairly and frankly facing it.

25. Shri 'M' appears to have been enrolled as an Agent in 1949 and he says that when, at the instance of

Shri Madan and Sardar Raghbir Singh he accepted the engagement in May, 1950, it was his third or fourth

engagement as Agent. There may, no doubt, be cases where an unscrupulous client may take advantage of

and exploit a beginner in the legal profession. But we are satisfied that this is not such a case.

26. We are clearly of the opinion that Shri 'M' is guilty of professional misconduct. We direct that he

should be suspended from practice for a period of two years.

27. Order accordingly.

 

In re; Mr G a Senior Advocate of SC AIR 1954 SC 557 In The Matter Of Mr. 'G'A Senior ... vs Date Of Judgment: on 27 May, 1954 Equivalent citations: 1954 AIR 560, 1955 SCR 501 Author: L R L.J. Bench: Das, S Ranjan PETITIONER: IN THE MATTER OF Mr. 'G'A SENIOR ADVOCATE OF THE SUPREME COU Vs. RESPONDENT: DATE OF JUDGMENT: 27/05/1954 BENCH: DAS, SUDHI RANJAN BENCH: DAS, SUDHI RANJAN MUKHERJEA, B.K. BOSE, VIVIAN HASAN, GHULAM JAGANNADHADAS, B. CITATION: 1954 AIR 560 1955 SCR 501 ACT: Supreme Court Rules--Order IV, rule 30-Advocate-Supreme Court-Agreement between him and his client for sharing recoveries in the legal proceedings-Whether professional misconduct-Professional conduct of Advocate of Supreme Court in view of his special privileges and status. HEADNOTE: The act of an Advocate of the Supreme Court in entering into an agreement with a client whereby the client undertakes to pay him a part of any recoveries he might make in the legal proceedings in respect of which he is employed, amounts to professional misconduct and makes him liable for disciplinary action and to this extent the ordinary legal rights of contract do not apply to an Advocate as such. Such agreements are not permissible to advocates under the rigid rules of conduct enjoined by the profession so that their integrity, dignity and honour may be placed above the breath of scandal. An Advocate of the Supreme Court is governed by special and rigid rules of professional conduct expected of and applied to a specially privileged class of persons who because of their privileged status are subject to certain disabilities which do not attach to other men and which do not even attach to an Advocate while acting otherwise than as Advocate. An Advocate is therefore bound to conduct himself in a manner befitting the high and honourable profession the privileges of which he enjoys and if he departs from the high standards which that profession has set for itself and demands of him he renders himself liable to disciplinary action. JUDGMENT: Original (Disciplinary) Jurisdiction. In the matter of summons issued to Mr. "G" under rule 30 of Order IV, Supreme Court Rules, to show cause to this Court why disciplinary action should not be taken against him. The material

facts of the case are stated in the Judgment Order IV rule 30 of the Supreme Court rules runs as follows;- " Where on the complaint of any person or otherwise, the Court is of opinion that an Advocate has been guilty of misconduct or of conduct unbecoming an Advocate, the Court may debar him from practising before the Court either permanently or for such period as the Court may think fit, and the Registrar shall thereupon report his name to his own High Court 491 " Provided that the Court shall in the first instance direct a summons to issue returnable before the Court or before a Special Bench to be constituted by the Chief Justice, requiring the Advocate to show cause against the matter alleged in the summons, and the summons shall, if possible, be served personally upon him with copies of any affidavit or statement before the Court at the time of the issue of the summons." G in person: Amarnath was the client. He had admittedly a just cause and the High Court has held that the terms came from him and were accepted out of compassion. I submit that in such circumstances the agreement was neither professionally nor morally improper. English law of Champerty and Maintenance does not apply to India; Please see Ram Coomar Coondoo v. Chunder Canto Mookerjee (1876) L.R. 4 I.A. 23; Bhagwat Dayal Singh v. Debi Dayal Sahu (1907) L.R. 35 I.A. 48. Prior to 1926 there was a distinction between Pleaders, Advocates and barristers. Barristers could nod enter into contractual relationship. They could not sue or be sued: Deo Kisen v. Budh Prakash (1833) I.L.R. 25 All. 509 F.B. This was in accordance with the English rules of professional etiquette among Barristers, but Pleaders and Advocates could enter into contractual relations. Contingent fees have been known and recognised in India at any rate since 1814. Please see sec. 25, Bengal Regulation XXVII of 1814, and see. 52, Bombay Regulation II of 1827. Contractual rights were extended in 1846. Please see Pleaders Act I of 1846; Please see sec. 7 as to fees. But agreements had to be registered with the Court to be enforceable. Wide changes in all these matters came about by legislation in 1926 (Legal Practitioners' Fees Act, 1926). Barristers, Attorneys, Advocates, Pleaders all came within the definition of Legal Practitioners, who may now sue and be sued and may enter into and may settle with their clients the terms of their engagement and the fees to be paid. Section 3 of the Act is sufficiently wide to include the impugned agreement with Amarnath. Contingent fees have been known in India for more than a century. In Madras in the case of Achamparambath Cheria Kunhammu v. William Sydenham Gantz (1881) I.L.R. 3 Mlad. 138 F.B. a contrary view was expressed but Madras bad framed a special rule by Circular Order of the Sudder Adulet dated 18-8-53. In Bombay a contrary view was also taken: In re Bhandara (1901) 3 Bom. L.R. 102 F.B. But the contract of the Advocate there was clearly improper and facts of that case were totally different from the facts of the present case. The observations of the Learned Chief Justice were obiter. In Bombay, Inampatra, which was in substance a fee payable and contingent on success has, however, been held enforceable: Shivram Hari v. Arjun (1881) I.L.R. 5 Bom. 258; Parshram Vaman v. Hiraman Fatu (1884) I.L.R. 8 Bom. 413. GHULAM HASAN J.: In U.P. they were referred to as Shukriana. G: In the Punjab they were known as "back fees" 492 and were held valid and enforceable: 5 P.R. 1878 F.B. Beechy v. Faiz Mahomed until the Full Court's decision by majority disapproved of the practice: 61 P.R. 1907 Ganga v. Devi Das. But strong reasons in support of the practice will be-found in the judgments of Lalchand & Chatterjee JJ. in 61 P.R. 1907. Contingent fees in a just cause have found approbation in

England. Please see Wiggins V. Lavy (1928) 44 T.L.R. 721 ; Bich v. Cook (1900) 110 L.T.J.D. 94 C.A. per Lord Russell L.J. In America, contingent fees are expressly recognised in the canons of professional ethics of the American Bar Association (Canon 12); See " Legal Ethics" by Henry S. Drinker (Columbia University Press page 99) and Hoffman's Resolutions (Ibid at page 343). The Supreme Court of the U.S.A. in several cases has held such agreements as enforceable. 1. Wylie v. Coxe 14 L. Ed. 753. 2. Barnes v. Alexander 58 L. Ed. 530. 3. McGowan v. Parish 59 L. Ed. 955. 4. Morris v. Giddings 29 L. Ed. 403. 5. Ball v. Halsell 40 L. Ed. 622. 6. Ingersoll v. Coram 53 L. Ed. 208. The substance of the American law will be found in the foot note to McMicken v. Perin, 15 L. Ed. 504. The High Court based its decision in the present case (1954) 56 Bombay L.R. 838 in re K.L. G on a question of Public Policy as void under sec. 23 of the Contract Act, but Public Policy has been held to be a treacherous ground for legal decision [Lord Davey in Tanson v. Driefontein Consolidated Mines [1901] A.C. 484 at page 500.] GHULAM HASAN J. Public Policy is an " unruly horse." MUKHERJEA J. You need not press this point. M. C. Setalvad, Attorney-General for India (G. N. Joshi and P. G. Gokhale with him) Conditions of the Bar in America and in India are very different. American authorities have therefore no relevance (Please see observations of Rattigan J. in 61 P.R. 1907 Ganga Ram v. Devi Das). An agreement though not void in law, may nevertheless amount to professional misconduct. Our Courts have held that agreeing to a share in the fruits of litigation is unprofessional. Please see (1874) 21 W.R. 297: In the matter of Moung Htoon Oung, an Advocate at Bangoon ; (1900) 4 C.L.J. 259 -In the matter of an Advocate; (1901) 3 Bom. L.R. 102-In re N. F. Bhandara and the majority judgments of the Full Court in 61 P.R. of 1907. The facts in the case in 3 Bom. Law Reporter 102 may be different but the rules of professional conduct were clearly laid down in the observations of Sir Lawrence Jenkins. Rigid notions of Champerty and Maintenance are not applicable to India but such contracts are prohibited by professional rules of conduct. G. in reply: The law cannot approbate and reprobate in the same breath. The Rulings earlier than the Legal Practitioners 493 Fees Act of 1926 and expressing a contrary view are now obsolete. A contract which is not vitiated by fraud, misrepresentation or some illegality or is not void under any recognised head of public policy, cannot amount to professional misconduct. The misconduct must fall within the definitions and limitations of misconduct laid down by the Bombay High Court in (1934) 36 Bom. L.R. 1136 F.B. Sir Jamshed Byramji Kanga v. Kaikhushru Bomanji Bharucha; and Anant Vishnu Chitre v. Pitamberdas Goculdas Mehta. ' G' in person. M.C. Setalvad, Attorney-General for India (G.,N. Joshi and P. G. Gokhale, with him) for the Hon'ble Chief Justice and other Hon'ble Judges of the Bombay High Court. 1954. May 27. The Judgment of the Court was delivered by BOSE J.-This matter arises out of a summons issued to Mr. G, a Senior Advocate of this Court under Order IV, rule 30, of the Supreme Court Rules, to show cause why disciplinary action should not be taken against him. Mr. G was called to the Bar in England and was later enrolled as an Advocate of the Bombay High Court. He is also an Advocate of this Court. On 20th December, 1952, he entered into an agreement with a client whereby the client undertook to pay him 50 per cent. of any recoveries

he might make in the legal proceedings in respect of which he was engaged. On this being reported to the High Court the matter was referred to the Bombay Bar Council and was investigated by three of its members under section 1 1 (1) of the Bar Councils Act. They recorded their opinion that this amounted to professional misconduct. The High Court agreed and suspended Mr. G from practice as an Advocate of the Bombay High Court for six months. The learned Judges considered that they had no power to affect his position as an Advocate of this Court, so directed that a copy of their judgement be submitted to this Court to enable this Court to take such action on it as it thought fit. 'Acting on this report this Court issued notice to the petitioner under Order IV, rule 30, to show cause why discipliner y action should not be taken against him. About the same time Mr. G filed a petition for a writ 494 under article'32 of the Constitution. We are confining ourselves in this order to the matter raised in the summons. There is no dispute about the facts. They are set out in Mr. G's petition under article 32 and\are as follows: On the 23rd of July, 1951, Air. G's client is said to have entered into an agreement with the Baroda Theatres Ltd., for work on a picture which they intended to produce. The remuneration agreed on was Rs. 15,000. Of this Rs. 3,000 was paid at once and the balance, Rs. 12,000, was to be paid on the completion of the picture. It is said that at the date of the dispute the Barods Theatres admitted that Rs. 9,400 was due, but as they did not pay up, the client consulted Mr. G about the best way to recover his money and wanted to know what the expenses and fees would be. After examining the matter in detail and talking it over with his client, Mr. G advised him that two courses were open to him. First, there was a civil suit. He said the cost of this would be about Rs. 800 for Court fees and expenses and about Rs. 1,250 for fees. The other alternative was winding up proceedings. The client was told that in these the Court fees would be lower but Mr. G's fees would have to be higher as winding up proceedings are usually protracted. The client preferred the latter course but said that he could not pay more than Rs. 200 towards the expenses and as regards the fees he said he was too poor to pay and so made a proposal which he reduced to writing. It is embodied in the following letter dated 20th December, 1952, addressed to Mr. G: I hereby engage you with regard to my claim against the Baroda Theatres Ltd., for a sum of Rs. 9,400 (balance due to me). Out of the recoveries you may take 50% of the amount recovered. I will by Wednesday deposit Rs. 200 in your account or give personally towards expenses." Mr. G said that he was unwilling to work on these terms but when he was pressed to do so and when he 495 realised that unless he agreed the client would probably lose a just claim he reluctantly agreed. Rs. 200 was thereupon paid towards expenses and Mr. G at once entered into correspondence with the solicitors of the Baroda Theatres Ltd. A winging up petition was drawn up and declared but was not filed because the matter was compromised at that stage. The Baroda Theatres undertook to pay Mr. G's client Rs. 6,400 in full satisfaction of his claim. The client then paid Mr. G a further Rs. 800. (He had already paid Rs. 200, part of which was spent for expenses). Mr. G claimed the balance which was roughly Rs. 2,200. We are not concerned with the proceedings in the Bombay High Court and before the Tribunal of the Bar Council in the summons matter with which we are dealing at the moment, as we are acting here under Order IV, rule 30, of the Rules of this Court. The only question is whether, on the facts and circumstances set out above (all of which are admitted by Mr. G), his engagement of 20th December, 1952, amounts to professional misconduct.

Mr. G argued the matter at length, and to his credit be it said, objectively and with restraint, but it is not necessary to cover the wide field he did because we are not concerned with ordinary rights of contract, nor with ordinary legal rights, but with the special and rigid rules of professional conduct expected of and applied to a specially privileged class of persons who, because of there privileged status, are subject to certain disabilities which do not attach to other men and which do not attach even to them in a non-professional character. To use the language of the Army, an Advocate of this Court is expected at all times to comport himself in a manner befitting his status as an " officer and a gentleman." In the Army it is a military offence to do otherwise (see section 45 of the Army Act, 1950) though no notice would be taken of ungentlemanly conduct under the ordinary law of the land, and none in the case of a civilian. So here, he is bound to conduct himself in a manner befitting the high and- 496 honourable profession to whose privileges he has so long been admitted; and if he departs from the high standards which that profession has set for itself and demands of him in professional matters, he is liable to disciplinary action. Now it can be accepted at once that a contract of this kind would be legally unobjectionable if no lawyer was involved. The rigid English rules of champerty and maintenance do not apply in India, so if this agreement had been between what we might term third parties, it would have been legally enforceable and good. It may even be that it is good in law and enforceable as it stands though we do not so decide because the question does not arise; but that was argued and for the sake of argument even that can be conceded. It follows that there is nothing morally wrong, nothing to shock the conscience, nothing against public policy and public morals in such a transaction per se, that is to say, when a legal practitioner is not concerned. But that is not the question we have to consider. However much these agreements may be open to other men what we have to decide is whether they are permissible under the rigid rules of conduct enjoyed by the members of a very close professional preserve so that their integrity, dignity and honour may be placed above the breath of scandal. That is part of the price one pays for the privilege of belonging to a kind of close and exclusive "and enjoying in it privileges and immunities' denied to less fortunate persons who are outside its fold. There is no need to enter its portals and there is no need to stay, but having entered and having elected to. stay and enjoy its amenities and privileges, its rules must be obeyed or the disciplinary measures which it is entitled to take must be suffered. The real question therefore is whether this kind of conduct is forbidden to the elect or whether, if it was once forbidden, the ban has since been removed, either directly or by implication, by legislative action. Now it was not disputed that, so far as English Barristers are concerned, this sort of agreement was once taboo both in England and in India. Even when 497 they worked in the mofussil in India and did the kind of work that would be done by solicitors in England and in the Presidency Towns in India, they could not enter into an engagement of this kind, for even solicitors in England are forbidden from making such bargains (see Cordery's Law Relating to Solicitors, fourth edition, page 342). But, it was argued, this rule only applied to members of the English Bar, and in any event it was abrogated in India in 1926. We will first examine whether there was a difference between Barristers and other classes of lawyers. This point was raised in the Punjab in 1907 but was rejected by a majority of seven Judges to two in a Full Bench of nine Judges in Ganga Ram v. Devi Das(1). But it is to be observed that even the two dissenting Judges agreed that an engagement of the present kind was not open to a member

of the Punjab Bar. Lal Chand J. (who dissented) said at page 331 : "I am in perfect accord with the Hon'ble Chief Judge that stipulation to receive a share in the result of the litigation is different from a stipulation to be, paid a fee contingent on success." The other dissenting Judge, Chatterji J., agreed with him but even as regards the practice which these two learned Judges thought permissible at the date of their decision, Chatterji J. said at page 299 "It must not be supposed, however, that I am in favour of the practice. I should on the whole prefer its abolition......... " We agree with Chitty J. at page 326 that there was no justification even at that date for seeking to apply one set of rules to one branch of the profession and another to another. As he said- "What is right or wrong for the one must be right or wrong for the other," or, as Sir Lawrence Jenkins C. J. put it in In re. N.F. Bhandara(2), "For common honesty there must be no sliding scale even in the mofussil.............. (1) 61 P. R. (Of 1907), P. 280. (2) 3 Bom, L. R. 102 at I. I. J. 64 498 Reading "standards of professional conduct" for the word "honesty", the quotation is apt here. In any case, the decisions to which we shall refer deal with "Advocates" and even where these "Advocates" were Barristers the matter touched them as "Advocates" of an Indian High Court and not because of their special status as Barristers. It is true that at one time Advocates were mainly Barristers, but that was not always the case and the rule laid down in these decisions governed all "Advocates," whether Barristers or otherwise. The learned Judges in the Punjab Record case collected all the available authorities up to the year of their decision and they show that this kind of agreement was condemned in Calcutta in 1874 and 1900: In the matter of Moung Htoon Qung(1) and In the matter of an Advocate of the Calcutta High Court(2) ; in Bombay in 1901: In re. N. F. Bhandara(3) ; and in Madras in 1881 and again in 1939 : Achamparambath Cheria Kunhammu v. William Sydenham Ganty(1) and In re. an Advocate of the Madras High Court(5). As the Bombay High Court is the one in which Mr. G normally practices and as the engagement was entered into in Bombay, we think it proper to quote the following passage at page 113 from the judgment in the Bombay case (In re. N. F. Bhandara) I consider that for an Advocate of this Court to stipulate for, or receive, a remuneration proportioned to the results of litigation or a claim whether in the form of a share in the subject-matter, a, percentage, or otherwise, is highly reprehensible, and I think it should be clearly understood that whether his practice be, here or in the mofussil he will by so acting offend the rules of his profession and so render himself liable to the disciplinary jurisdiction of this Court." Mr. G argued that even if this was once the law, section 3 of the Legal Practitioners (Fees) Act, 1926, (Act XXI of 1926)changed it and that now. every legal Practitioner is competent to settle the terms (1) 21 W.R. 297. (4) I. L. R. 3 Mad. 138. (2) 4 Cal. L. J. 259. (5) 1, L, R. 1940 Mad. 17. (3) Bom, L. R. 102 at 113 499 his engagement and his fees by private agreement with his client. This, Mr. G said, entitles him to enter into any agreement which the law permits in the case of ordinary persons. Legal practitioners, according to him, are now governed by the law of contract and not by rules imported from other countries with different ideas and different social customs and imposed on

the Bar ha India mainly by English Judges. We do not agree, because this Act is not concerned with professional misconduct. That is dealt with by the Bar Councils Act which was passed in the same year (1926). The Bar Councils Act makes no modification in the disciplinary jurisdiction of the High Court or of the sense in which professional misconduct had been understood throughout India up to that time. The. only Indian decision which Mr. G, could quote in his favour was Muthoo Lail v. Budree Pershad (1). But that was not a case in which disciplinary action was being taken against a legal practitioner for professional misconduct. The question there was whether an, agreement which might be objectionable on the ground of professional misconduct could be enforced by suit. Two Bombay decisions on which Mr. G relies are to be distinguished in the same way : Shivram Hari v. Arjun(2) and Parshram Vaman v. Hiraman Fatu(3). Whether these cases were rightly decided or whether they would also be hit on the ground of public policy as Chitty J. thought of a similar matter in the Punjab Record case, is something which does not arise for decision here. It is enough to say that those cases are distinguishable on the around that the Judges there were not considering a case of disciplinary action. Mr. G relied on the practice in some of the American States where an agreement by an attorney to purchase part of the subject-matter of the litigation is upheld. The class of cases to which he refers are summarised in a footnote to McMicken v. Perin(1). He relied on this to show that contracts of this kind cannot be dismissed as reprehensible or morally wrong. We do not propose to enter into this because what may be (1) I N. W. P. H. C. R. I. (2) 1. L. R. 5 Bom. 258. (3) I. L. R. 8 BOm. 413. (4) 15 Law. Edn. 504 & 505. 500 harmless in one country may not be so in another. We will however pause to observe that Rattigan J. collected a large volume of 'American authority at pages 318-321 of his opinion in Ganga Ram v. Devi Das(1) to show that even in those States where this is permitted it is regretted and frowned upon. For historical reasons obtaining there, the practice may have come to stay however much it is regretted; but in 1937 the American Bar Association adopted the following canon of Professional Ethics: "The lawyer should not purchase any interest in the subject-matter of the litigation which he is conducting." In India history tells the converse tale. We see no reason why we should import what many feel if; a mistake, even in the country of its origin, from another country and seek to perpetuate their error here when a sound and healthy tradition to the contrary already exists in our Bar. The reasons for exacting these high standards in this country, where ignorance and illiteracy are the rule, are even more important than they are in England where the general level of education is so much higher. We hold that the conduct of Mr. G amounts to professional misconduct and as it was committed in the face of the Bombay view expressed by Sir Lawrence Jenkins in 1901 disciplinary action is called for. Now had Mr. G been as restrained and objective in his petition under article 32 as he was while arguing the case before us, we might have considered a warning enough seeing that this is the first time this question has been considered in this Court, but, in view of his personal attacks on the learned Chief Justice in his petition where he has questioned his good faith and attributed malice to him, we are not able to deal with him as lightly. We therefore direct that he be suspended from practising in this Court for a period which

will expire on the same date as his period of suspension in-the Bombay High Court. There will be no order about costs. Order accordingly. (1) 61 P. R. (of 1907), P. 280. 501

In Re: Vinay Chandra Mishra (The ... vs Unknown on 10 March, 1995

Equivalent citations: AIR 1995 SC 2348, 1995 (1) ALT Cri 674, 1995 CriLJ 3994

Author: P Sawant

Bench: K S Verma, P Sawant

ORDER

P.B. Sawant, J.

1. On 10th March, 1994; Justice S.K. Keshote of the Allahabad High Court addressed a letter to the Acting

Chief Justice of that Court as follows :

No. SKK/ALL/8/94 10.3.94

Dear brother Actg. Chief Justice,

Though on 9.3.94 itself I orally narrated about the misbehavior of Sh. B.C. Misra with me in the Court but

I thought it advisable to give you same in writing also.

On 9.3.94 I was sitting with Justice Anshuman Singh in Court No. 38. In the list of fresh cases of 9.3.94 at

Sr. No. 5 FAFO Record No. 22793 M/s. Bansal Forgings Ltd. v. U.P.F. Corp. filed by Smt. S.V. Misra was

listed. Sh. B.C. Misra appeared in this case when the case was called.

Brief facts of that case

M/s. Bansal Forgings Ltd. took loan from U.P. Financial Corporation and it made default in payment of

instalment of the same. Corporation proceeded against the Company Under Section 29 of the U.P.

Financial Corporation Act. The company filed a Civil Suit against the Corporation and it has also field an

application for grant of temporary injunction. Counsel for the Corporation suo moto put appearance in

the matter before Trial Court and prayed for time for filing of reply. The learned trial court passed an

order on the said date that the Corporation will not seize the factory of the Company. The company shall

pay the amount of instalment and it will furnish also security for the disputed amount. The court directed

to furnish security on 31.1.94 and case was fixed on 15.3.94.

Against said order of the trial court this appeal has been filed and arguments have been advanced that

Court has no jurisdiction to pass the order for payment of instalment of loan and further no security could

have been ordered.

I put a question to Shri Misra under which provision this order has been passed. On putting of question

he started to shout and said that no question could have been put to him. He will get me transferred or see

that impeachment motion is brought against me in Parliament. He further said that he has turned up

many Judges. He created a good scene in the court. He asked me to follow the practice of this Court. In

sum and substance it is a matter where except to abuse me of mother and sister he insulted me like

anything. What he wanted to convey to me was that admission is as a course and no arguments are heard,

at this stage.

It is not the question of insulting of a Judge of this institution but it is a matter of institution as a whole.

In case dignity of Judiciary is not being maintained then where this institution will stand. In case a senior

Advocate, President of Bar and chairman of Bar Council of India behaves in Court in such manner what

will happen to other advocates.

Since the day I have come here I am deciding the cases on merits. In case a case has merits it is admitted

but not as a matter of course. In this Court probably advocates do not like the consideration of cases on

their merits at the stage of admission. In case dignity of Judiciary is not restored then it is very difficult for

the Judges to discharge their Judicial function without fear and favour.

I am submitting this matter to you in writing to bring this misshaping in the Court with the hope that you

will do something for restoration of dignity of Judiciary.

Thanking you,

Yours sincerely,

Sd/-

(Jus. S.K. Keshote).

The Acting Chief justice Shri V.K. Khanna forwarded the said letter to the then Chief Justice of India by

his letter of 5th April, 1994. The learned Chief Justice of India constituted this Bench to hear the matter

on 15th April, 1994.

On 15th April, 1994, this Court took the view that there was a prima fade case of criminal contempt of

court committed by Shri Vinay Chandra Mishra [hereinafter referred to as the "contemner"] and issued a

notice against him to show cause why contempt proceedings be not initiated against him. By the same

order, Shri D.P. Gupta, the learned Solicitor General of India was requested to assist the Court in the

matter. Pursuant to the notice, the contemner filed his reply by affidavit dated 10th May, 1994 and also an

application seeking discharge of show cause notice, and in the alternative for an inquiry to be held into the

incident referred to by Justice Keshote in his letter which had given rise to the contempt proceedings. It is

necessary at this stage to refer to the material portions of both the affidavit and the application filed by the

contemner. After referring to his status a Senior Advocate of the Allahabad High Court and his

connections with the various law organisations in different capacities to impress upon the Court that he

had a deep involvement in the purity, integrity and solemnity of judicial process, he has submitted in the

affidavit that but for his deep commitments to the norms of judicial processes as evidenced by his said

status and connections, he would have adopted the usual expedient of submitting his unconditional

regrets. But the facts and circumstances of this case were such which induced him to "state the facts and

seek the verdict of the Court" whether he had committed the alleged contempt or whether it could be "a

judge committing contempt of his own court". He has then stated the facts which according to him form

the "genesis" of the present controversy. They are as follows :-

A. A Private Ltd. Co. had taken an instalment loan from U.P. Financial Corporation, which provides under

its constituent Act (Sec. 29) for some sort of self help in case of default of instalments.

B. A controversy arose between the said Financial Corporation and the borrower as a result of which, the

borrower had to file a civil suit seeking an injunction against the Corporation for not opting for the non-

judicial sale of their assets.

C. The Civil Court granted the injunction against putting the assets to sale, but at the same time directed

furnishing security for the amount due.

D. Being aggrieved by the condition of furnishing security, which in law would be tantamount to directing

a mortgager to furnish security for payment of mortgage loan, even when he satisfies the Court that a stay

is called for - the property mortgaged being a pre-existing security for its payment.

E. The Company filed an FAFO being No. 229793/94 against the portion of the order directing furnishing

of security.

F. The said FAFO came for preliminary hearing before Hon'ble Justice Anshuman Sing and the Applicant

of this petition on 9th March, 1994. In which I argued for the debtor Company.

G. When the matter was called on Board, the Applicant took charge of the court proceedings and virtually

foreclosed attempts made by the senior Judge to intervene. The Applicant Judge inquired from me as to

under what law the impugned order was passed to which I replied that it was under various rules of Order

39, CPC. That Applicant therefore conveyed to me that he was going to set aside the entire order, against a

portion of which I had come in appeal, because in his view the Lower Court was not competent to pass

such an order as Order 39 did not apply to the facts.

H. I politely brought to the notice of the Applicant Judge that being the appellant I had the dominion over

the case and it could not be made worse, just because I had come to High Court.

I. The Applicant Judge apparently lost his temper and told me in no unconcealed term that he would set

aside the order in toto, disregarding what I had said.

J. Being upset over, what I felt was an arbitrary approach to judicial process I got emotionally perturbed

and my professional and institutional sensitivity got deeply wounded and I told the Applicant Judge that

it was not the practice in this Court to dismiss cases without hearing or to upset judgments or portions of

judgments, which have not been appealed against. Unfortunately the Applicant judge took it unsparingly

and apparently lost his temper and directed the stenographer to take down the order for setting aside of

the whole order.

K. At this juncture, the Hon'ble Senior Judge intervened, whispered something to the Applicant Judge

and directed the case to be listed before some other Bench. It was duly done and by an order of the other

Court dated 18th March, 1994 Hon'ble Justices B.M. Lal and S.K. Verma, the points raised by me before

the Applicant Judge were accepted. A copy of the said order is reproduced as Annexure I to this affidavit.

L. I find it necessary to mention that the exchange that took place between me and the Applicant Judge

got a little heated up. In the moment of heat the Applicant Judge made the following observations :-

I am from the Bar and if need be I can take to goondaism.

Adding in English -

I never opted for Allahabad. I had opted for Gujarat and Himachal Pradesh. I do not know why the Chief

Justice of India disregarded my options and transferred me to this place, which I never liked.

Provoked by this I asked him whether he was creating a scene to create conditions for getting himself

transferred as also talked earlier.

After narrating the above incident, contemner has gone on to deny that he had referred to any

impeachment, though according to him he did mention that "a judge got himself transferred earlier on

account of his inability to command the goodwill of the Bar due to lack of mutual reverence".

The contemner has further denied the allegations made by Justice Keshote that as soon as the case was

called out, he [i.e., Justice Keshote] asked him the provision under which the impugned order was passed

and that he had replied that the Court had no jurisdiction to ask the same and should admit and grant the

stay order. According to him, such a reply could only be attributed to one who is "mad" and that

considering his practice of thirty five years at the Bar and his responsible status as a member of the Bar, it

is unbelievable that he would reply in such a "foolish manner". The contemner has further denied that he

had abused the learned judge since according to him he had never indulged in abusing anybody. With

regard to the said allegations against him, the contemner has stated that the same are vague and,

therefore, "nothing definite is warranted to reply".

He has further contended in his affidavit that if the learned Judge was to be believed that he had

committed the contempt, the senior Judge who was to direct the court proceedings would have initiated

proceedings under "Article 129 of the Constitution" for committing contempt in facie curiae. He has also

stated that the learned Judge himself did not direct such proceeding against him which he could have. He

has found fault that instead of doing so, the learned Judge had "deferred the matter for the next day and

adopted a devious way of writing to the Acting Chief Justice for doing something about it". He has then

expressed his "uncomprehension" with the learned Judge should have come to the Supreme Court when

he had ample and sufficient legal and constitutional powers to arraign him at the Bar for what was

attributed to him.

The contemner has then gone on to complain that the "language used" by the learned Judge "in the Court

extending a threat to resort to goondaism is acting in a way which is professionally perverse and

approximating to creating an unfavourable public opinion about the awesomeness of judicial process,

lowering or tending to lower the authority of any Court" which amounted to contempt by a Judge

punishable under Section 16 of the Contempt of Courts Act, 1971. He has then gone on to submit "under

compulsion of his "institutional and professional conscience" and for upholding professional standards

expected of both the Bench and the Bar of this Court" that this Court may order a thorough investigation

into the incident in question to find out whether a contempt has been committed by him punishable

under "Article 215" of the Constitution Or by the Judge under Section 16 of the Contempt of Courts Act.

He has further stated that the entire Bar at Allahabad knows that he has unjustly "roughed" by the Judge

and was being punished for taking a "fearless and non-servile stand" and that he is being prosecuted for

asserting the right of audience and using "the liberty to express his views" when a Judge takes a course

"which in the opinion of the bar is irregular". He has also contended that any punishment meted out to

the "outspoken lawyer" will completely emasculate the freedom of the profession and make the Bar "a

subservient tail wagging appendage to the judicial branch, which is an anathema to a healthy democratic

judicial system".

He has made a complaint that he was feeling handicapped in not being provided with the copy of the

letter/report of the Acting Chief Justice of the Allahabad High Court and he has also been unable to gauge

the "rationale of the applicant in not having initiated proceedings" against him either immediately or a

day following, when he chose to address a letter to the Acting Chief Justice. He has then contended that he

wanted to make it clear that he was seeking a formal inquiry not for any vindication of any personal hurt

but to make things safe for profession which in a small way by a quirk of destiny come to his keeping also.

He has also stated that he would be untrue and faithless to his office if he subordinated the larger interests

of the profession and dignity of the judicial process for a small thing of seeking his little safety. The

contemner goes on to state that he did not opt for filing a contempt against the learned judge as in normal

course of arguments, sometimes, altercations take place between a Judge and the arguing advocate, which

may technically be contempt on either side but there being no intention, provisions of contempt are not

attracted. In support of his said case, he has reproduced an extract form Oswald's Contempt of Court, III

Edition, By Robertson. The said extract is as follows :

An advocate is at liberty, when addressing the Court in regular course, to combat and contest strongly any

adverse views of the Judge or Judges expressed on the case during its argument, to object to and protest

against any course which the Judge may take and which the advocate thinks irregular or detrimental to

the interests of his client, and to caution juries against any interference by the Judge with their functions,

or with the Advocate when addressing them, or against any strong view adverse to his client expressed by

the presiding Judge upon the facts of a case before the verdict of the jury thereon. An advocate ought to be

allowed freedom and latitude both in speech and in the conduct of his client's case. It is said that a Scotch

advocate was arguing before a Court in Scotland, when one of the Judges, not liking his manner, said to

him, "It seems to me, Mr. Blank, that you are endeavoring in every way to show your contempt for the

Court." "No," was the quick rejoinder, "I am endeavouring in every way to conceal it.

In the end, he has stated that he had utmost respect and regard for the courts and he never intended nor

intends not to pay due respect to the courts which under the law they are entitled to and it is for this

reason that instead of defending himself through an advocate, he had left to the mercy of this Court to

judge and decide the right and wrong. He has also stated that it is for this reason that he had not relied

upon the provisions of the Constitution under Articles 129 and 215 and Section 16 of the Contempt of

Court Act and to save himself on the technicality and jurisdictional competence.

Lastly, he has reiterated that he had always paid due regard to the Courts and he was paying the same and

will continue to pay the same and he "neither intended not intends to commit contempt of any Court".

2. Along with the aforesaid affidavit was forwarded by the contem-ner, a petition stating therein that he

had not gone beyond the legitimate limits of fearless, honest and independent obligations of an advocate

and it was Justice Keshote himself who had lost him temper and extended threats to him which was such

as would be punishable under Section 16 of the Contempt of Courts Act, 1971[hereinafter referred to as

the "Act"]. He has prayed that the notice issued to him be discharged and if in any case, this Court does

not feel inclined to discharge the notice, he "seeks his right to inquiry and production of evidence directly

or by affidavits" as this Court may direct. He has further stated in that petition that he is moving an

independent application for contempt proceedings to be drawn against the learned judge and it would be

in the interest of justice and fairplay if the two are heard together. It has to be noted that the contemner

has throughout this affidavit as well as the petition referred to Justice Keshote as "applicant", although he

knew very well that contempt proceedings had been initiated suo moto by this Court on the basis of the

letter written by Justice Keshote to the Acting Chief Justice of the High Court. His manner of reference to

the learned Judge also reveals the respect in which he holds the learned Judge.

The contemner has also filed another petition on the same day as stated in the aforesaid petition wherein

he has prayed that on the facts staled in the reply affidavit to the show cause notice for contempt

proceedings against him. this Court be pleased to draw proceedings under Section 16 of the Act against

the learned judge for committing contempt of his own court and hold an inquiry. In this petition, he has

stated that in his reply to the contempt notice, he has brought the whole truth before this Court which

according to him was witnessed by the senior judge of the Bench, Justice Anshuman Singh and a large

number advocates. Once again referring to Justice Keshote as the applicant, he has stated that the learned

Judge in open court conveyed to him [i.e., the contemner] that he can take to goondaism if need arises,

that he also talked disparagingly against the Chief justice of India for not transferring him to the place for

which he had opted and in a manner unworthy of a Judge and also attempted to gag the contemner from

discharging his duties as an advocate. The contemner has further contended that as a common law

principle relating to contempt of courts, a Judge is liable for contempt of his own Court as much as any

other person associated with judicial proceedings and outside, and that the aforesaid principle has been

given statutory recognition under Section 16 of the Act. He has further contended that the behavior of the

learned judge was so unworthy that the senior colleague on the Bench apart from "disregarding with the

desire of the applicant to dismiss the entire order" against a part of which an appeal had been filed,

released the case from the board and did not think of taking recourse to the obvious and well-known

procedure of initiating contempt proceedings against him for the alleged contempt committed in the face

of the Court. He has further contended that the adoption of devious way of reaching the Acting Chief

Justice by letter and reportedly coming to Delhi for meeting meaningful people" is "itself seeking about

the infirmity of the case" of the Judge. He has in the end reiterated his prayer for an inquiry into the

behavior of the learned Judge if the notice of contempt was not discharged against him in view of the

denial by him of the conduct alleged against him.

3. This Court gave four weeks' time as desired by the contemner to file an additional affidavit giving more

facts and details. The Court also made clear that the cause title of the proceedings was misleading since

Justice Keshote had not initiated the proceedings. The proceedings were initiated mo moto by this Court.

A direction was given to the Registry to correct the cause title.

On 30th June, 1994, the contemner filed his supplementary/additional counter affidavit. In this affidavit,

he raised objections to the maintainability "of initiating contempt proceedings" against him. His first

objection was to the assumption of jurisdiction by the Court to punish for an act of contempt committed

in respect of another Court of record which is invested with identical and independent power for

punishing for contempt of itself. According to him, this Court can take cognisance only of contempt

committed in respect of itself. He has also demanded that in view of the point of law raised by him, the

matter be placed before the Constitution Bench and that notice be issued to the Attorney General of India

and all the Advocate General of the States. He has then gone on to deny the statements made by the

learned Judge in the letter written to the Acting Chief Justice of the High Court and in view of the said

denial by him, he has asked for the presence of the learned Judge in the Court for being cross-examined

by him, i.e., the contemner. He has further stated that if the contempt proceedings are taken against him,

the statement of Justice Anshuman Singh who was the senior Judge on the Bench before which the

incident took place, would also be necessary. He has also taken exception to Justice Keshote's speaking in

the Court except through the senior Judge on the Bench which, according to him had been the practice in

the Allahabad High Court, and has alleged that the learned Judge did not follow the said convention. In

the end, he has reiterated that he has utmost respect and regard for the courts and he has never intended

nor intends not to pay due regard to the Courts.

On 15th July, 1994, this Court passed an order wherein it is recorded that on 15th April, 1994, the court

had issued a notice to the contemner to show cause as to why criminal contempt proceedings be not

initiated against him and notice was issued on its own motion. The Court heard the contemner in person

as well as his learned Counsel. The Court perused the counter affidavit and the additional affidavit of the

contemner and was of the view that it was a fit case where criminal contempt proceedings be initiated

against the contemner. Accordingly, the Court directed that the proceedings be initiated against him. The

contemner was given an opportunity to file any material in reply or in defence within another eight weeks.

He was also allowed to file the affidavit of any other person apart from himself in support of his defence.

Shri Gupta, learned Solicitor General was appointed as the prosecutor to conduct the proceedings. The

affidavits filed by the contemner were directed to be sent to Justice Keshote making it clear that he might

offer his comments regarding the factual averments in the said affidavits.

4. In view of the said order, the Court dismissed the contemner's application No. 2560/94 praying for

discharge of the notice. The contemner thereafter desired to withdraw his application No. 2561/94

seeking initiation of proceedings against the learned judge for contempt of his own Court, by stating that

he was doing so "at this stage reserving his right to file a similar application at a later stage". The Court

without any comment on the statement made by the Contemner, dismissed the said application as

withdrawn.

5. Justice Keshote by a letter of 20th August, 1994 forwarded his comments on the counter affidavit and

the supplementary/additional counter affidavit filed by the contemner. The learned Judge denied that he

took charge of the court proceedings and virtually foreclosed the attempts made by the senior Judge to

intervene, as was alleged by the contemner. He stated that being a member of the Bench, he put a

question to the contemner as to under which provision, the order under appeal had been passed by the

trial court, and upon that the contemner started shouting and said that he would get him transferred or

see to it that impeachment motion was brought against him in Parliament. According to the learned

Judge, the contemner said many more things as already mentioned by him in his letter dated 10th March,

1994. He further stated that the contemner created a scene which made it difficult to continue the court

proceedings and ultimately when it became difficult to hear all the slogans, insulting words and threats,

he requested his learned brother on the Bench to list that case before another Bench and to retire to the

chamber. Accordingly, the order was made by the other learned member of the Bench and both of them

retired to their chambers.

The learned Judge also stated that the Contemner has made wrong statement when he states "that

applicant, therefore, conveyed to me that he was going to set aside the entire order, against portion of

which I had come in appeal because in his view, the lower court was not competent to pass such order as

Order 39 did not apply to the facts". The learned Judge stated that he neither made any such statement

nor conveyed to the contemner as suggested by him. He reiterates that except one sentence, viz., "that

under which provision this order had been made by the trial court" nothing was said by him. According to

the learned Judge, it was a case where the contemner did not permit the court proceedings to be

proceeded and both the Judges ultimately had to retire to the chambers. The learned Judge alleges that

the counter affidavit manufactures a defence. He has denied the contents of paragraph 6[H] and [I] of the

counter affidavit by stating that nothing of the kind as alleged therein had happened. According to the

learned Judge, it was a case where the contemner lost his temper on the question being put to him by him,

i.e., the learned Judge. He has stated that instead of losing his temper and creating a scene and

threatening and terrorising him, the contemner should have argued the matter and encouraged the new

junior Judge. The learned Judge has further denied the following averment, viz., "unfortunately, the

applicant Judge took it unsparingly and apparently lost his temper and directed the stenographer to take

down the order for setting aside of the whole order" made in paragraph 6[J] of the counter affidavit, as

wrong. He has pointed out that in the Division Bench, it is the senior member who dictates

order/judgments. He has also denied the statements attributed to him in other paragraphs of the affidavit

and in particular, has stated that he did not make the following observations: "I am from the Bar and if

need be I can take to goondaism" and has alleged that the said allegations are absolutely wrong. He has

also denied that he ever made the statements as follows : "I never opted for Allahabad. I had opted for

Gujarat and Himachal Pradesh. I do not know why the Chief justice of India disregarded my options and

transferred me to this place which I never liked". According to him, the said allegations are manufactured

with a view to create a defence. He has denied the allegations made against him in the

additional/supplementary affidavits as wrong and has stated that what actually happened in the Court

was stated in his letter of 10th March, 1994.

On 7th October, 1994, the contemner filed his unconditional written apology in the following words:

1. In deep and regretful realization of the fact that a situation like the one which has given rise to the

present proceedings, and which in an ideal condition should never have arisen, subjects me to deep

anguish and remorse and a feeling of moral guilt. The feeling has been compounded by the fact of my

modest association with the profession as the senior advocate for some time and also being the President

of the High Court Bar Association for multiple terms (from which I have resigned a week or ten days

back), and also being the Chairman of the Bar Council of India for the third five - year term. The latter two

being elective posts convey with its holding an element of trust by my professional fraternity which

expectations of setting up an example of an ideal advocate, which includes generating an intra-

professional culture between the Bar and the Bench, under which the first looks upon the second with

respect and resignation, the second upon the first with courtesy and consideration. It also calls for

cultivation of a professional attitude amongst the lawyers to learn to be good and sporting losers.

2. Guilty realizing my failure at approximating these standards resulting in the present proceedings, nolo

contender I submit my humble and unconditional apologies for the happenings in the Court of Justice

S.K. Keshote at Allahabad High Court on March 9, 1994, and submit myself at the Hon. Courts sweet will.

3. I hereby withdraw from record all my applications, petitions, counter affidavits, and prayers made to

the court earlier to the presented [sic] of this statement. I, also, withdraw all submissions made at the bar

earlier and rest my matter with the present statement alone, and any submissions that may be made in

support of or in connection with statement.

On that day, the matter was adjourned to 24th November, 1994 to enable the learned Counsel for the

parties to make further submissions on the apology and to argue the case on all points, since the Court

stated that it may not be inclined to accept the apology as tendered. The learned Counsel for all the parties

including the contemner, Bar Council of India and the State Bar Council of U.P. [who were allowed to

intervene] were heard and the matter was reserved for judgment.

6. Thereafter, the State Bar Council of U.P., also submitted its written submissions on 26th November,

1994 alongwith an application for intervention. We have perused the said submissions.

7. We may first deal with the preliminary objection raised by the Contemner and the State Bar Council,

viz., that the Court cannot take cognisance of the contempt of the High Courts. The contention is based on

two grounds. The first is that Article 129 vests this Court with the power to punish only for the contempt

of itself and not of the High Courts. Secondly, the High Court is also another court of record vested with

identical and independent power of punishing for contempt of itself.

The contention ignores that the Supreme Court is not only the highest Court of record, but under various

provision of the Constitution, is also charged with the duties and responsibilities of correcting the lower

courts and tribunals and of protecting them from those whose misconduct tends to prevent the due

performance of their duties. The latter functions and powers of this Court are independent of Article 129

of the Constitution. When, therefore, Article 129 vest this Court with the powers of the court of record

including the power to punish for contempt of itself, it vests such powers in this Court in its capacity as

the highest court of record and also as a court charged with the appellate and superintending powers over

the lower courts and tribunals as detailed in the Constitution. To discharge its obligations as the custodian

of the administrations of justice in the country and as the highest court imbued with supervisory and

appellate jurisdiction over all the lower courts and tribunals, it is inherently deemed to have been

entrusted with the power to see that the stream of justice in the country remains pure, that its course is

not hindered or obstructed in any manner, that justice is delivered without fear or favour and for that

purpose all the courts and tribunals are protected while discharging their legitimate duties. To discharge

this obligation, this Court has to take cognisance of the deviation from the path of justice in the tribunals

of the land, and also of attempts to cause such deviations and obstruct the course of justice. To hold

otherwise would mean that although this Court is charged with the duties and responsibilities enumerated

in the Constitution, it is not equipped with the power to discharge them.

This subject has been dealt with elaborately by this Court in All India Judicial Service Association, Tis

Hazari Court, Delhi v. State of Gujarat and Ors. . We may do no better than quote from the said decision

the relevant extracts :

18. There is therefore no room for any doubt that this Court has wide power to interfere and correct the

judgment and orders passed by any court or tribunal in the country. In addition to the appellate power,

the Court has special residuary power to entertain appeal against any order of any court in the country.

The plenary jurisdiction of this Court to grant leave and hear appeals against any order of a court or

tribunal, confers power of judicial superintendence over all the courts and tribunals in the territory of

India including subordinate courts of Magistrate and District Judge. This Court has, therefore,

supervisory jurisdiction over all courts in India.

19. Article 129 provides that the Supreme Court shall be a court of record and shall have all the power of

such a court including the power to punish for contempt of itself. Article 215 contains similar provision in

respect of High Court. Both the Supreme court as well as High Courts are courts of record having powers

to punish for contempt including the power to punish for contempt of itself. The Constitution does not

define "Court of Record'. This expression is well recognised in juridical world. In Jowitt's Dictionary of

English Law, "Court of record" is defined as :

A court whereof the acts and judicial proceedings are enrolled for a perpetual memorial and testimony,

and which has power to fine an imprison for contempt of its authority.

In Wharton's Law Lexicon, Court of record is defined as :

Courts are either of record where their acts and judicial proceedings are enrolled for a perpetual memorial

and testimony and they have power to fine and imprison, or not of record being courts of inferior dignity,

and in a less proper sense the King's Courts-and these art not entrusted by law with any power to fine or

imprison the subject of the realm, unless by the express provision of some Act of Parliament. These

proceedings are not enrolled or recorded

In words and Phrases (Permanent Edition Vol.10 page 429) "Court of Record" is defined as under :

Court of Record is a court where acts and judicial proceedings are enrolled in parchment for a perpetual

memorial and testimony, which rolls are called the 'record' of the court, and are of such high and

supereminent authority that their truth is not to be questioned.

Halsbury's Law of England, 4th Edn., Vol.10, para 709, page 319, states :

Another manner of division is into courts of record and courts not of record. Certain courts are expressly

declared by statute to be courts of record. In the case of courts not expressly declared to be courts of

record, the answer to the question whether a court is a court of record seems to depend in general upon

whether it has power to fine or imprison, by statute or otherwise, for contempt of itself or other

substantive offences; if it has such power, it seems that it is a court of record.... The proceedings of a court

of record preserved in its achieves are called records, and are conclusive evidence of that which is

recorded therein.

xxxxx

23. The question whether in the absence of any express provision a Court of Record has inherent power in

respect of contempt of subordinate or inferior courts, has been considered by English and Indian courts.

xxxxx

...These authorities show that in England the power of the High Court to deal with the contempt of

inferior court was based not so much on its historical foundation but on the High Court's inherent

jurisdiction being a court of record having jurisdiction to correct the orders of those courts.

xxxxx

24. In India prior to the enactment of the Contempt of Courts Act, 1926, High Court's jurisdiction in

respect of contempt of subordinate and inferior courts was regulated by the principles of Common Law of

England. The High Courts in the absence of statutory provision exercised power of provision exercised

power of contempt to protect the subordinate courts on the premise of inherent power of a Court of

record."

26. The English and the Indian authorities are based on the basic foundation of inherent power of a Court

of Record, having jurisdiction to correct the judicial order of subordinate courts. The King's Bench in

England and High Courts in India being superior Courts of Record and having judicial power to correct

orders of subordinate courts enjoyed the inherent power of contempt to protect the subordinate courts.

The Supreme Court being a Court of Record under Article 129 and having wide power of judicial

supervision over all the courts in the country, must possess and exercise similar jurisdiction and power as

the High Courts and prior to contempt Legislation in 1926. Inherent powers of a superior Court of Record

have remained unaffected even after codification of Contempt Law."

xxxxx

28. ...The Parliament's power to legislate in relation to law of contempt relating to Supreme Court is

limited, therefore the Act does not impinge upon this Court's power with regard to the contempt of

subordinate courts under Article 129 of the Constitution.g

29. Article 129 declares the Supreme Court a court of record and it further provides that the Supreme

Court shall have all the powers of such a court including the power to punish for contempt of itself. The

expression used in Article 129 is not restrictive instead it is extensive in nature. If the Framers of the

Constitution intended that the Supreme Court shall have power to punish for contempt of itself only,

there was no necessity of inserting the expression "including the power to punish for contempt of itself".

The Article confers power on the Supreme Court to punish for contempt of itself and in addition, it

confers some additional power relating to contempt as would appear from the expression "including". The

expression "including" has been interpreted by courts, to extend and widen the scope of power. The plain

language of Article 129 clearly indicates that this Court as a court of record has power to punish for

contempt of itself and also something else also which could fall within the inherent jurisdiction of a court

of record. In interpreting the constitution, it is not permissible to adopt a construction which would

render any expression superfluous or redundant. The courts ought not to accept any such construction.

While construing Article 129, it is not permissible to ignore the significance and impact of the inclusive

power conferred on the Supreme Court. Since the Supreme Court is designed by the Constitution as a

court of record and as the Founding Fathers were aware that a superior court of record has inherent

power to indict a person for the contempt of itself as, well as of courts inferior to it, the expression

"including" was deliberately inserted in the article. Article 129 recognised the existing inherent power of a

court of record in its full plenitude including the power to punish for the contempt of inferior courts. If

Article 129 is susceptible to two interpretations, we would prefer to accept the interpretation which would

preserve the inherent jurisdiction of this Court being the superior court of record, to safeguard and

protect the subordinate judiciary, which forms the very backbone of administration of justice. The

subordinate courts administer justice at the grassroot level, their protection is necessary to preserve the

confidence of people in the efficacy of courts and to ensure unsullied flow of justice at its base level.

xxxxxx

31. We have already discussed a number of decisions holding that the High Court being a court of record

has inherent power in respect of contempt of itself as well as of its subordinate courts even in the absence

of any express provision in any Act. A fortiori the Supreme Court being the Apex Court of the country and

superior court of record should possess the same inherent jurisdiction and power for taking action for

contempt of itself as well as for the contempt of subordinate and inferior courts. It was contended that

since High Court has power of superintendence over the subordinate courts under Article 227 of the

Constitution, therefore, High Court has power to punish for the contempt of subordinate courts. Since the

Supreme Court has no supervisory jurisdiction over the High Court or other subordinate courts, it does

not possess powers which High Courts have under Article 215. This submission is misconceived. Article

227 confers supervisory jurisdiction on the High Court and in exercise of that power High Court may

correct judicial orders of subordinate courts, in addition to that, the High Court has administrative

control over the subordinate courts. Supreme Court's power to correct judicial orders of the subordinate

courts under Article 136 is much wider and more effective than that contained under Article

227. Absence of administrative power of superintendence over the High Court and subordinate court does

not affect this Court's wide power of judicial superintendence of all courts in India. Once there is power of

judicial superintendence, all the courts whose orders are amenable to corrections by this Court would be

subordinate courts and therefore this Court also possesses similar inherent power a the High Court has

under Article 215 with regard to the contempt of subordinate courts. The jurisdiction and power of a

superior Court of Record to punish contempt of subordinate courts was not founded on the Court's

administrative power of superintendence, instead the inherent jurisdiction was conceded to superior

Court of Record on the premise of its judicial power to correct the errors of subordinate courts.

xxxxxx

36. Advent of freedom, and promulgation of Constitution have made drastic changes in the

administration of justice necessitating new judicial approach. The Constitution has assigned a new role to

the Constitutional Courts to ensure rule of law in the country. These changes have brought new

perceptions. In interpreting the Constitution, we must have regard to the social , economic and political

changes, need of the community and the independence of judiciary. The court cannot be a helpless

spectator, bound by precedents of colonial days which have lost relevance. Time has come to have a fresh

look at the old precedents and to lay down law with the changed perceptions keeping in view the

provisions of the Constitution. "Law", to use the words of Lord Coleridge, "grows; and though the

principles of law remain unchanged yet their application is to be changed with the changing

circumstances of the time". The considerations which weighed with the Federal Court in rendering its

decision in Gauba and Jaitly case are no more relevant in the context of the constitutional provisions.

37. Since this Court has power of judicial superintendence and control over all the courts and tribunals

functioning in the entire territory of the country, it has a corresponding duty to protect and safeguard the

interest of inferior courts to ensure the flow of the stream of justice in the courts without any interference

or attack from any quarter. The subordinate and inferior courts do not have adequate power under the law

to protect themselves, therefore, it is necessary that this Court should protect them. Under the

constitutional scheme this Court has a special role, in the administration of justice and the powers

conferred on it under Articles 32, 136, 141 and 142 form part of basic structure of the Constitution. The

amplitude of the power of this Court under these articles of the Constitution cannot be curtailed by law

made by Central or State legislature. If the contention raised on behalf of the contemners is accepted, the

courts all over India will have no protection from this Court. No doubt High Courts have power to persist

for the contempt of subordinate courts but that does not affect or abridge the inherent power of this Court

under Article

129. The Supreme Court and the High Court both exercise concurrent jurisdiction under the

constitutional scheme in matters relating to fundamental rights under Articles 32 and 226 of the

Constitution, therefore this Court's jurisdiction and power to take action for contempt of subordinate

courts would not be inconsistent to any constitutional scheme. There may be occasions when attack on

Judges and Magistrates of subordinate courts may have wide repercussions throughout the country, in

that situation it may not be possible for a High Court to contain the same, as a result of which the

administration of justice in the country may be paralysed, in that situation the Apex Court must intervene

to ensure smooth functioning of courts. The Apex Court is duty bound to take effective steps within the

constitutional provisions to ensure a free and fair administration of justice throughout the country, for

that purpose it must wield the requisite power to take action for contempt of subordinate courts.

Ordinarily, the High Court would protect the subordinate court from any onslaught on their

independence, but in exceptional cases, extraordinary situation may prevail affecting the administration

of public justice or where the entire judiciary is affected, this Court may directly take cognisance of

contempt of subordinate courts. We would like to strike a note of caution that this Court will sparingly

exercise its inherent power in taking cognisance of the contempt of subordinate courts, as ordinarily

matters relating to contempt of subordinate courts must be dealt with by the High Courts. The instant

case is of exceptional nature, as the incident created a situation where functioning of the subordinate

courts all over the country was adversely affected, and the administration of justice was paralysed,

therefore, this Court took cognisance of the matter.

38. ...It is true that courts constituted under a law enacted by the Parliament or the State legislature have

limited legislature and they cannot assure jurisdiction in a matter, not expressly assigned to them, but

that is not so in the case of a superior court of record constituted by the Constitution. Such a court does

not have a limited jurisdiction instead it has power to determine its own jurisdiction. No matter is beyond

the jurisdiction of a superior court of record unless it is expressly shown to the so, under the provisions of

the Constitution. In the absence of any express provision in the Constitution the Apex Court being a court

of record has jurisdiction in every matter and if there be any doubt, the Court has power to determine its

jurisdiction. If such determination is made by High Court, the same would be subject to appeal to this

Court, but if the jurisdiction is determined by this Court is would be final.

xxxxxx

...We therefore hold that this Court being the Apex Court and a superior court of record has power to

determine its jurisdiction under Article 129 of the Constitution and as discussed earlier it has jurisdiction

to initiate or entertain proceedings for contempt of subordinate courts. This view does not run counter to

any provision of the Constitution.

The propositions of law laid down and the observations made in this decision conclusively negate the

contention that this Court cannot take cognisance of the contempt committed of the High Court.

8. The contemner has also contended that notwithstanding the decision in Delhi Judicial Service

Association Case [supra], the matter should be referred to a larger Bench because according to him, the

decision does not lay down the correct proposition of law when it gives this Court the jurisdiction under

Article 129 of the Constitution to take cognisance of the contempt of the High Court. Neither the

contemner nor the learned Counsel appearing on his behalf has pointed out to us any specific infirmity in

the said decision. We are not only in complete agreement with the law laid down on the point in the said

decision but are also unable to see how the legal position to the contrary will be consistent with this

Court's wide ranging jurisdiction and its duties and responsibilities as the highest Court of the land as

pointed out above. Hence, we reject the said request.

9. The contemner has further contended that it will be necessary to hold an inquiry into the allegations

made by the learned Judge by summoning the learned judge for examination to verify the version of the

incident given by him as against that given by the contemner. According to him, in view of the conflicting

versions of the incident given by him and the learned Judge, it would be necessary for him to cross-

examine the learned Judge. As the facts reveal, the contempt alleged is in the face of the Court. The

learned judge or the Bench could have itself taken action for the offence on the spot. Instead, the learned

Judge probably thought that it would not be proper to be a prosecutor, a witness and the judge himself in

the matter and decided to report the incident to the learned Acting Chief Justice of his Court. There is

nothing unusual in the course the learned Judge adopted, although the procedure adopted by the leaned

Judge has resulted in some delay in taking action for the contempt. (See Balogh v. Crown Court at St.

Albans [1975] QB 73 [1974] 3 All ER 283). The criminal contempt of court undoubtedly amounts to an

offence but it is an offence sui generis and hence for such offence, the procedure adopted both under the

common law and the statute law even in this country has always been summary. However, the fact that

the process is summary does not mean that the procedural requirement, viz., that an opportunity of

meeting the charge, is denied to the contemner. The degree of precision with which the change may be

stated depends upon the circumstances. So long as the gist of the specific allegations is made clear or

otherwise the contemner is aware of the specific allegation, it is not always necessary to formulate the

charge in a specific allegation. The consensus of opinion among the judiciary and the jurists alike is that

despite the objection that the judge deals with the contempt himself and the Contemner has little

opportunity to defend himself, there is a residue of cases where not only it is justifiable to punish on the

spot but it is the only realistic way of dealing with certain offenders. This procedure does not offend

against the principle of natural justice, viz., Nemo judex in ma causa since the prosecution is not aimed at

protecting the Judge personally but protecting the administration of justice. The threat of immediate

punishment is the most effective deterrent against misconduct. The judge has to remain in full control of

the hearing of the case and he must be able to take steps to restore order as early and quickly as possible.

The time factor is crucial. Dragging out the contempt proceedings means a lengthy interruption to the

main proceedings which paralyses the court for a time and indirectly impedes the speed and efficiency

with which justice is administered. Instant justice can never be complete satisfactory yet it does provide

the simplest, most effective and least unsatisfactory method of dealing with disruptive conduct in Court.

So long as the contemner's interest are adequately safeguarded by giving him an opportunity of being

heard in his defence, even summary procedure in the case of contempt in the face of the Court is

commended and not faulted.

10. In the present case, although the contempt is in the face of the court, the procedure adopted is not only

not summary but has adequately safeguarded the contemner's interest. The contemner was issued a

notice intimating him the specific allegation against him. He was given an opportunity to counter the

allegations by filing his counter affidavit and additional counter/supplementary affidavit as per his

request, and he has filed the same. He was also given an opportunity to file an affidavit of any other

person that he chose or to produce any other material in his defence, which he has not done. However, in

the affidavit which he has filed, he has requested for an examination of the learned Judge. We have at

length dealt with the nature of in facie curiae contempt and the justification for adopting summary

procedure and punishing the offender on the spot. In such procedure, there is no scope for examining the

Judge or Judges of the court before whom the contempt is committed. To give such a right to the

contemner is to destroy not only the raison d'etre for taking action for contempt committed in the face of

the court but also to destroy the very jurisdiction of the Court to adopt proceedings for such conduct. It is

for these reasons that neither the common law nor the statute law countenances the claim of the offender

for examination of the Judge or Judges before whom the contempt is committed. Section 14 of our Act,

i.e., the Contempt of Courts Act, 1971 deals with the procedure when the action is taken for the contempt

in the face of the Supreme Court and the High Court. Sub-section [3] of the said Section deals with a

situation where in facie curiae contempt is tried by a Judge other than the Judge or judges in whose

presence or hearing the offence is alleged to have been committed. The provision in specific terms and for

obvious reasons, states that in such cases it shall not be necessary for the Judge or Judges in whose

presence or hearing the offence is alleged to have been committed, to appear as a witness and the

statement placed before the Chief Justice shall be treated as the evidence in the case. The statement of the

learned Judge has already been furnished to the contemner and he has replied to the same. We have,

therefore, to proceed by treating the statement of the learned Judge and the affidavits filed by the

contemner and the reply given by the learned Judge to the said affidavits, as evidence in the case.

11. We may now refer to the matter in dispute to examine whether the contemner is guilty of the contempt

of court under the common law definition, "contempt of court" is defined as an act or omission calculated

to interfere with the due administration of justice. This covers criminal contempt [that is, acts which so

threaten the administration of justice that they require punishment] and civil contempt [disobedience of

an order made in a civil cause]. Section 2[a][b] and [c] of the Act defines the contempt of court as follows :

2. Definitions. - In this Act, unless the context otherwise requires, -

[a] "contempt of court" means civil contempt or criminal contempt;

[b] "civil contempt" means willful disobedience to any judgment, decree, direction, order, writ or other

process of a court or wilful breach of an undertaking given to a court;

[c] "criminal contempt" means the publication [whether by words, spoken or written, or by signs, or by

visible representations, or otherwise] of any matter or the doing of any other act whatsoever which -

[i] scandalises or tends to scandalise, or lowers or tends to lower the authority of any court; or

[ii] prejudices, or interferes or tends to interfere with, the due course of any judicial proceedings; or

[iii] interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in

any other manner;

From the facts which have been narrated above it is clear that the allegations against the contemner, if

true, would amount to criminal contempt as defined under Section 2[c] of the Act. It is in the light of this

definition of the "criminal contempt" that we have to examine the facts on record.

The essence of the contents of Justice Keshote's letter is that when he put a question to the contemner as

to under which provision the order was passed by the lower court, the contemner "started to shout and

said that no question could have been put to him". The contemner further said that he would get the

learned judge transferred or see that impeachment motion was brought against him in Parliament. He

also said that he had "turned up many judges". He also created a scene in the Court. The learned Judge

has further stated in his letter that in sum and substance it was a matter where "except to abuse him of

mother and sister", he insulted him "like anything". The contemner, according to the learned Judge,

wanted to convey to him that admission was a matter of course and no argument were to be heard at that

stage. The learned Judge has given his reaction to the entire episode by pointing out that this is not a

question of insulting a Judge but the institution as a whole. In case the dignity of the judiciary was not

maintained then he "did not know where the institution would stand, particularly when contemner who is

a senior advocate, President of the Bar and Chairman of the Bar Council of India behaved in the court in

such manner which will have its effect on other advocates as well". He has further stated that in case the

dignity of the judiciary is not restored, it would be very difficult for the judges to discharge the judicial

function without fear or favour. At the end of this letter, he has appealed to the learned Acting Chief

Justice for "restoration of dignity of the judiciary".

The contemner, as pointed out above, by filing an affidavit has denied the version of the episode given by

the learned Judge and has stated that when the matter was called on, the learned Judge [he has referred

to him as the 'applicant'] took charge of the court proceedings and virtually foreclosed the attempts made

by the senior Judge to intervene. The learned judge inquired from the contemner as to under which law

the impugned order was passed to which the latter replied that it was under various rules of Order 39,

CPC. The learned Judge then conveyed to the contemner that he was going to set aside the entire order

although against a portion of it only he had come in appeal. According to the contemner, he then politely

brought to the notice of the learned Judge that being the appellant, he had the dominion over the case and

it could not be made worse just because he had come to High Court. According to the contemner, the

learned Judge then apparently lost his temper and told him that he would set aside the order in toto

disregarding what he had said. The contemner has then proceeded to state that "being upset over what"

he felt was an arbitrary approach to judicial process he "got emotionally perturbed" and "his professional

and institutional sensitivity got deeply wounded" and he told the applicant-Judge that "it was not the

practice" of that Court to dismiss case without hearing or to upset judgments or portions of judgments

which have not been appealed against. According to the contemner, "unfortunately the applicant - Judge

took it unsparingly and apparently lost his temper and directed the Stenographer to take down the order

for setting aside the whole order. The contemner has then stated that he "found it necessary to mention

that the exchange that took place between him and the applicant-Judge got a little heated up". In the

moment of heat the applicant-Judge made the following observations : "I am from the bar and if need be I

can take to goondaism. I never opted for Allahabad. I had opted for Gujarat and Himachal Pradesh. I do

not know why the Chief Justice of India disregarded my options and transferred me to this place, which I

never liked". According to the Contemner, he was "provoked by this" and asked the learned Judge

"whether he was creating a scene to create conditions for getting himself transferred as also talked

earlier". The contemner has denied that he had referred to any impeachment although according to him,

he did say that "a Judge got himself transferred earlier on account of his inability to command the

goodwill of the Bar due to lack of mutual reverence". He has also denied that when the learned judge

asked him as to under which provision the order was passed, he had replied that the Court had no

jurisdiction to ask the same and should admit and grant the stay order. He has added that such a reply

could only be attributed to one who is made and it is unbelievable that "he would reply in such a foolish

manner". He has also denied that he had abused the learned Judge and the allegation made against him in

that behalf were vague. According to the contemner, if he had committed the contempt, the senior

member of the Bench would have initiated proceedings under "Article 129" of the Constitution for

committing contempt in facie curiae. He has also stated that even the learned Judge himself could have

done so but he did not do so and deferred the matter for the next day and "adopted a devious way of

writing to the acting Chief Justice for doing something about it" which shows that the version of the

episode was not correct. The contemner has also then expressed his "uncomprehension" why the learned

Judge should have come to this Court when he had ample and sufficient legal and constitutional powers to

arraign the contemner at the "Bar for what was attributed" to him.

12. Before we refer to the other contentions raised by the contemner, the question is which of the two

versions has to be accepted as correct. The contemner has no doubt asked for an inquiry and an

opportunity to produce evidence. For reasons stated earlier, we declined his request for such inquiry, but

gave him ample opportunity to produce whatever material he desired to, including the affidavits of

whomsoever he desired. Our order dated 15th July, 1994 is clear on the subject. Pursuant to the said

order, the contemner has not filed his further affidavit or material or the affidavit of any other person.

Instead he tendered a written apology dated 7th October, 1994 which will be considered at the proper

place. In his earlier counter additional counter, he has stated that it is not he who had committed

contempt but it is the learned Judge who had committed contempt of his own court. According to him, the

learned Judge had gagged him from discharging his duties as an advocate and the statement of senior

member of the bench concerned was necessary. He has taken exception to the learned Judge speaking in

the Court except through the senior Judge of the Bench which according to him, had been the practice in

the said High Court and has also alleged that the learned judge did not follow the said convention.

13. Normally, no Judge takes action for in facie curiae contempt against the lawyer unless he is impelled

to do so. It is not the heat generated in the arguments but the language used, the tone and the manner in

which it is expressed and the intention behind using it which determine whether it was calculated to

insult, show disrespect, to overbear and overawe the court and to threaten and obstruct the course of

justice. After going through the report of the learned Judge and the affidavits and the additional affidavits

filed by the contemner and after hearing the learned Counsel appearing for the contemner, we have come

to the conclusion that there is every reason to believe that notwithstanding his denials, and disclaimers,

the contemner had undoubtedly tried to browbeat, threaten, insult and show disrespect personally to the

learned Judge. This is evident from the manner in which even in the affidavits filed in this Court, the

contemner has tried to justify his conduct. He has started narration of his version of the incident by taking

exception the learned Judge's taking charge of the court proceedings. We are unable to understand what

exactly he means thereby. Every member of the Bench is on par with the other member or members of the

Bench and has a right to ask whatever questions he want to, to appreciate the merits or demerits of the

case. It is obvious that the contemner was incensed by the fact that the learned Judge was asking the

questions to him. This is clear from his contention that the learned Judge being a junior member of the

Bench, was not supposed to ask him any question and if any questions were to be asked, he had to ask

them through the senior member of the Bench because that was the convention of the Court. We are not

aware of any such convention in any court at least in this country. Assuming that there is such a

convention, it is for the learned Judges forming the Bench to observe it inter se. No lawyer or a third party

can have any right or say in the matter and can make either an issue of it or refuse to answer the questions

on that ground. The lawyer or the litigant concerned has to answer the questions put to him by any

member of the Bench. The contemner has sought to rely on the so-called convention and to spell out his

right from it not to have been questioned by the learned Judge This contention coupled with his grievance

that the learned Judge had taken charge of the proceedings, shows that th contemner was in all

probability perturbed by the fact that the learned Judge was asking him questions. The leaned Judge's

version, therefore, appear to be correct when he states that the contemner lost his temper when he started

asking him questions. The contemner has further admitted that he got "emotionally perturbed" and his

"professional and institutional sensitivity got deeply wounded" because the learned Judge, according to

him, apparently lost his temper and told him in no unconcealed terms that he would set aside the order in

toto disregarding what he had said. The learned Judge's statement that the contemner threatened him

with transfer and impeachment proceedings also gets corroboration from the contemner's own statement

in the additional affidavit that he did tell the learned Judge that a Judge got himself transferred earlier on

account of his inability to command the goodwill of the Bar due to lack of mutual reverence. No one

expects a lawyer to be subservient to the Court while presenting his case and not to put forward his

arguments merely because the Court is against him. In fact, that is the moment when he is expected to put

forth his best effort to persuade the Court. However, if, in spite of it, the lawyer finds that the court is

against him, he is not expected to be discourteous to the court or to fling hot words or epithets or use

disrespectful, derogatory or threatening language or exhibit temper which has the effect of overbearing

the court. Cases are won and lost in the court daily. One or the other side is bound to lose. The remedy of

the losing lawyer or the litigant is to prefer an appeal against the decision and not to indulge in a running

battle of words with the court. That is the least that is expected of a lawyer. Silence on some occasions is

also an argument. The lawyer is not entitled to indulge in unbecoming conduct either by showing his

temper or using unbecoming language.

The incident had undoubtedly created a scene in the court since even according to the contemner, the

exchange between the learned Judge and him was "a little heated up" and the contemner asked the

learned Judge "whether he was creating scene to create conditions for getting himself transferred as also

talked earlier". He had also to remind the learned Judge that "a Judge got himself transferred earlier on

account of his inability to command the goodwill of the Bar due to lack of mutual reverence". He has

further stated in his affidavit that "the entire Bar at Allahabad" knew that he was unjustly "roughed" by

the Judge and was being punished for taking "a fearless and non-servile stand" and that he was being

prosecuted for "asserting" a right of audience and "using the liberty to express his views when a Judge

takes a course which in the opinion of the Bar is irregular". He has also stated that any punishment meted

out to the "outspoken" lawyer will completely emasculate the freedom of the profession and make the Bar

a subservient tail wagging appendage to the judicial branch which is an anathema to a healthy democratic

judicial system. He has further stated in his petition for taking contempt action against the learned Judge

that the incident was "witnessed by a large number of advocates".

We have reproduced the contents of the letter written by the learned judge and his reply to the affidavits

filed by the contemner The learned Judge's version is that when he put the question to the contemner as

to under which provision, the lower court had passed the order in question, the contemner started

shouting and said that no question could have been put to him. The contemner also stated that he would

get him transferred or see that impeachment motion was brought against him in Parliament. He further

said that he had "turned up" many judges and created a good scene in the Court. The contemner further

asked him to follow the practice of the Court. The learned Judge has stated that in sum and substance, it

was a matter where except "to abuse of his mother and sister", he had insulted him "like anything". The

learned Judge has further stated that the contemner wanted to convey to him that admission of every

matter was as a matter of course and no arguments were heard at the admission stage. He has reiterated

the said version in his reply to the affidavits and in particular, has denied the allegations made against

him by the contemner. He has defended his asking the question to the contemner since he was a member

of the Bench. The learned judge has stated that the contemner I took exception to his asking the said

question as if he had committed some wrong and started shouting. He has further stated that he had

asked only the question referred to above and the contemner had created the scene on account of his

putting the said question to him, and made it difficult to continue the court's proceedings. Ultimately

when it became impossible he hear all the slogans and insulting words and threats, he requested the

senior learned member of the Bench to list the case before another Bench and to retire to the chamber.

Accordingly, an order was made by the senior member of the Bench and both of them retired to the

chamber. The learned Judge has denied that he had conveyed to the contemner that he was going to set

aside the entire order against a portion of which the contemner had come in appeal. He has stated that it

was a case where the contemner did not permit the court proceedings to be proceeded and both the

members of the Bench had ultimately to retire to the chambers. The learned Judge has stated that the

defence of the conduct of the contemner in the counter affidavit "was a manufactured" one. He has then

dealt with each paragraph of the contemner's counter affidavit. He has also stated that there was no

question of his having directed the stenographer to take down the order for setting aside of the whole

order since that function was performed by the senior member of the Bench. He has also stated that the

contemner has made absolutely wrong allegations when he states that he had made the following remarks

: "I am from the bar and if need be I can take to goondaism". He has also denied that he had said : "I never

opted for Allahabad. I had opted for Gujarat and Himachal Pradesh. I do not know why the Chief Justice

of India disregarded my options and transferred me to this place, which I never liked". He has stated that

the contemner has made false allegations against him.

We have, by referring to the relevant portions of the affidavit and the counter affidavit filed by the

contemner, pointed out the various statements made in the said affidavits which clearly point to the

veracity of the version given by the learned Judge and the attempted rationalisation of his conduct by the

contemner. The said averments also lend force and truthfulness to the content of the learned Judge's

letters. We are, taking into consideration all the circumstances on record, of the view that the version of

the incident given by the learned Judge has to be accepted as against that of the contemner.

To resent the questions asked by a Judge, to be disrespectful to him, to question his authority to ask the

questions, to shout at him, to threaten him with transfer and impeachment, to use insulting language and

abuse him, to dictate the order that he should pass, to create scenes in the Court, to address him by losing

temper, are all acts calculated to interfere with and obstruct the course of justice. Such act tend to overawe

the court and to prevent it form performing its duty to administer justice. Such conduct brings the

authority of the court and the administration of justice into disrespect and disrepute and undermines and

erodes the very foundation of the judiciary by shaking the confidence of the people in the ability of the

court to deliver free and fair justice.

The stance taken by the contemner is that he was performing his duty as an outspoken and fearless

member of the Bar. He seems to be labouring under a grave misunderstanding. Brazenness is not

outspokenness and arrogance is not fearlessness. Use of intemperate language is not assertion of right nor

is a threat an argument. Humility is not servility and courtesy and politeness are not lack of dignity. Self-

restraint and respectful attitude towards the Court, presentation of correct facts and law with a balanced

mind and without overstatement, suppression, distortion or embellishment are requisites of good

advocacy. A lawyer has to be a gentlemen first. His most valuable asset is the respect and goodwill he

enjoys among his colleagues and in the Court.

The rule of law is the foundation of the democratic society. The judiciary is the guardian of the rule of law.

Hence judiciary is not only the third pillar, but the central pillar of the democratic State. In a democracy

like ours, where there is a written Constitution which is above all individuals and institutions and where

the power of judicial review is vested in the superior courts, the judiciary has a special and additional duty

to perform, viz., to oversee that all individuals and institutions including the executive and the legislature

act within the framework of not only the law but also the fundamental law of the land. This duty is apart

from the function of adjudicating the disputes between the parties which is essential to peaceful and

orderly development of the society. If the judiciary is to perform its duties and functions effectively and

true to the spirit with which they are sacredly entrusted to it, the dignity and authority of the courts have

to be respected and protected at all costs. Otherwise, the very cornerstone of our constitutional scheme

will give way and with it will disappear the rule of law and the civilized life in the society. It is for this

purpose that the courts are entrusteddis-service with the extra-ordinary power of punishing those who

indulge in acts whether inside or outside the courts, which tend to undermine their authority and bring

them in disrepute and disrespect by scandalising them and obstructing them from discharging their

duties without fear or favour. When the court exercises this power, it does not do so to vindicate the

dignity and honour of the individual judge who is personally attacked or scandalised, but to uphold the

majesty of the law and of the administration of justice. The foundation of the judiciary is the trust and the

confidence of the people in its ability to deliver fearless and impartial justice. When the foundation itself

is shaken by acts which tend to create disaffection and disrespect for the authority of the court by creating

distrust in its working, the edifice of the judicial system gets eroded.

It cannot be disputed and was not disputed before us that the acts indulged into by the contemner in the

present case as stated by the learned Judge per se amount to criminal contempt of court. What was

disputed, was their occurrence. We have held above that we are satisfied that the contemner did indulge

in the said acts.

As held by this Court in the matter of Mr. 'G', a Senior Advocate of the Supreme Court [1955] 1 SCR 490;

...the Court, in dealing with cases of professional misconduct is not concerned with ordinary legal rights,

but with the special and rigid rules of professional conduct expected of and applied to a specially

privileged class of persons who, because of their privileged status, are subject to certain disabilities which

do not attach to other men and which do not attach even to them in a non-professional character....He (a

legal practitioner) is bound to conduct himself in a manner befitting the high and honourable profession

to whose privileges he has so long been admitted; and if he departs from the high standards which that

profession has set for itself and demands of him in professional matters, he is liable to disciplinary action.

In L.M. Das v. Advocate General, Orissa [1957] SCR 167, this Court observed :-

A member of the Bar undoubtedly owes a duty to his client and must place before the Court all that can

fairly and reasonably be submitted on behalf of his client. He may even submit that a particular order is

not correct and may ask for a review of that order. At the same time, a member of the Bar is an officer of

the Court and owes a duty to the court in which he is appearing. He must uphold the dignity and decorum

of the Court and must not do anything to bring the Court itself into disrepute. The appellant before us

grossly overstepped the limits of propriety when he made imputations of partiality and unfairness against

the Munsif in open Court. In suggesting that the Munsif followed no principle in his orders, the appellant

was adding insult to injury, because the Munsif had merely upheld an order of his predecessor on the

preliminary point of jurisdiction and Court fees, which order had been upheld by the High Court in

revision. Scandalising the Court in such manner is really polluting the very fount of justice; such conduct

as the appellant indulged in was not a matter between an individual member of the Bar and a member of

the judicial service; it brought into disrepute the whole administration of justice. From that point of view,

the conduct of the appellant was highly reprehensible.

The contemner has obviously misunderstood his function both as a lawyer representing the interests of

his client and as an officer of the court. Indeed, he has not tried to defend the said acts in either of his

capacities. On the other hand, he has tried to deny them. Hence, much need not be said on this subject to

remind him of his duties in both the capacities. It is, however, necessary to observe that by indulging in

the said acts, he has positively abused his position both as a lawyer and as an officer of the Court, and has

done distinct disservice to the litigants in general and to the profession of law and the administration of

justice in particular. It pains us to note that the contemner is not only a senior member of the legal

profession, but holds the high offices of the Chairman of the Bar Council of India, Member of the Bar

Council of U.P., Chairman and Member, Executive Council and Academic Council of the National Law

School University of India at Bangalore and President of the High Court Bar Association, Allahabad. Both

as a senior member of the profession and as holder of the said high offices, special and additional duties

were cast upon him to conduct himself as a model lawyer and officer of the court and to help strengthen

the administration of justice by upholding the dignity and the majesty of the court. It was in fact expected

of him to be zealous in maintaining the rule of law and in strengthening the people's confidence in the

judicial institutions. To our dismay, we find that he has acted exactly contrary to his obligations and has in

reality set a bad example to others while at the same time contributing to weakening of the confidence of

the people in the courts.

The contemner has no doubt tendered an unconditional apology on 7th October, 1994 by withdrawing

from record all his applications, petitions, counter affidavits, prayers and submissions made at the Bar

and to the court earlier. We have reproduced that apology verbatim earlier. In the apology he has pleaded

that he has deeply and regretfully realised that the situation, meaning thereby the incident, should never

have arisen and the fact that it arose has subjected him to anguish and remorse and a feeling of moral

guilty. That feeling has been compounded with the fact that he was a senior advocate and was holding the

elective posts of the President of the High Court Bar Association and the Chairman of the Bar Council of

India which by their nature show that he was entrusted by this professional fraternity to set up an

example of an ideal advocate. He has guiltily realised his failure to approximate to this standard resulting

in the present proceedings and he was, therefore, submitting his unconditional apology for the incident in

question, we have not accepted this apology, firstly because we find that the apology is not a free and

frank admission of the misdemeanor he indulged in the incident in question. Is there a sincere regret for

the disrespect he showed to the learned Judge and the Court, and for the harm that he has done to the

judiciary. On the other hand, the apology is couched in a sophisticated and garbed language exhibiting

more an attempt to justify his conduct by reference to the circumstances in which he had indulged in it

and to exonerate himself from the offence by pleading that the condition in which the "situation" had

developed was not an ideal one and were it ideal, the 'situation' should not have arisen. It is a clever and

disguised attempt to refurbish his image and get out of a tight situation by not only not exhibiting the

least sincere remorse for his conduct but by trying to blame the so-called circumstances which led to it. At

the same time, he has attempted to varnish and re-establish himself as a valiant defender of his "alleged

duties" as a lawyer. Secondly, from the very inception his attitude has been defiant and belligerent. In his

affidavits and application, not only he has not shown any respect for the learned Judge, but has made

counter-allegations against him and has asked for initiation of contempt proceedings against him. He has

even chosen to insinuate that the learned Judge by not taking contempt action on the spot and instead

writing the letter to the Acting Chief Justice of the High Court, had adopted a devious way and that he had

also come to Delhi to meet "meaningful" people. These allegations may themselves amount to contempt of

court. Lastly, to accept any apology for a conduct of this kind and to condone it, would tantamount to a

failure on the part of this Court to uphold the majesty of the law, the dignity of the court and to maintain

the confidence of the people in the judiciary. The Court will be failing in its duty to protect the

administration of justice from attempts to denigrate and lower the authority of the judicial officers

entrusted with the sacred task of delivering justice. A failure on the part of this Court to punish the

offender on an occasion such as this would thus be a failure to perform one of its essential duties solemnly

entrusted to it by the Constitution and the people. For all these reasons, we unhesitatingly reject the said

so called apology tendered by the contemner.

14. The question now is what punishment should be meted out to the contemner. We have already

discussed the contempt jurisdiction of this Court under Article 129 of the Constitution. That jurisdiction is

independent of the statutory law of contempt enacted by the Parliament under Entry 77 of List I of VII

Schedule of the Constitution. The jurisdiction of this Court under Article 129 is sui generis. The

jurisdiction to take cognisance of the contempt as well as to award punishment for it being constitutional,

it cannot be controlled by any statute. Neither, therefore, the Contempt of Courts Act, 1971 nor the

Advocates Act, 1961 can be pressed into service to restrict the said jurisdiction. We have during the course

of the proceedings indicated that if we convict the contemner of the offence, we may also suspend his

licence to practise as a lawyer. The learned Counsel for the contemner and the interveners and also the

learned Solicitor General appointed amicus curiae to assist the Court were requested to advance their

arguments also on the said point. Pursuant to it, it was sought to be contended on behalf of the contemner

an the U.P. Bar Association and the U.P. Bar Council that the Court cannot suspend the licence which is a

power entrusted by the Advocates Act, 1961 specially made for the purpose, to the disciplinary committees

of the State Bar Councils and of the Bar Council of India. The argument was that even the constitutional

power under Articles 129 and 142 was circumscribed by the said statutory provisions and hence in the

exercise of our power under the said provisions, the licence of an advocate was not liable either to be

cancelled or suspended. A reference was made in this connection to the provisions of Sections 35 and 36

of the Advocates Act, which show that the power to punish the advocate is vested in the disciplinary

committees of the State Bar Council and the Bar Council of India. Under Section 37 of the Advocates Act,

an appeal lies to the Bar Council of India, when the order is passed by the disciplinary committee of the

State Bar Council. Under Section 38, the appeal lies to the Court when the order is made by the

disciplinary committee of the Bar Council of India, either under Section 36 or in appeal under Section 37.

The power to punish includes the power to suspend the Advocate from practice for such period as the

disciplinary committee concerned may deem fit under Section 35[3](c) and also to remove the name of

the advocate from the State roll of the Advocates under Section 35[3](d). Relying on these provisions, it

was contended that since the Act has vested the powers of suspending and removing the advocate from

practice inclusively in the disciplinary committees of the State Bar Council and the Bar Council of India,

as the case may be, the Supreme Court is denuded of its power to impose such punishment both under

Articles 129 and 142 of the Constitution. In support of this contention, reliance was placed on the

observations of the majority of this Court in Prem Chand Garg v. Excise Commission, U.P.,

Allahabad [1963] Supp. 1 S.C.R. 885 relating to the powers of this Court under Article 142 which are as

follows :

In this connection, it may be pertinent to point out that the wide powers which are given to this Court for

doing complete justice between the parties, can be used by this Court for instance, in adding parties to the

proceedings pending before it, or in admitting additional evidence, or in remanding the case, or in

allowing an new point to be taken for the first time. It is plain that in exercising these and similar other

powers, this Court would not be bound by the relevant provisions of procedure if it is satisfied that a

departure from the said procedure is necessary to do complete justice between the parties.

That takes us to the second argument urged by the Solicitor-General that Article 142 and Article 32 should

be reconciled by the adoption of the rule of harmonious construction. In this connection, we ought to bear

in mind that though the powers conferred on this Court by Article 142(1) are very wide, and the same can

be exercised for doing complete justice in any case, as we have already observed, this Court cannot even

under Article 142(1) make an order plainly inconsistent with the express statutory provisions of

substantive law, much less, inconsistent with any Constitutional provisions. There can, therefore, be no

conflict between Article 142(1) and Article 32. In the case of KM. Nanavati v. The State of Bombay on

which the Solicitor-General relies, it was

conceded, and rightly, that under Article 142(1) this Court had the power to grant bail in cases brought

before it, and so, there was obviously a conflict between the power vested in this Court under the said

Article and that vested in the Governor of the State under Article 161. The possibility of a conflict between

these powers necessitated the application of the rule of harmonious construction. The said rule can have

no application to the present case, because on a fair construction of Article 142(1), this Court has no power

to circumscribe the fundamental right guaranteed under Article 32. The existence of the said power is

itself in dispute, and so, the present case is clearly distinguishable from the case of KM. Nanavati.

15. Apart form the fact that these observations are made with reference to the powers of this Court under

Article 142 which are in the nature of supplementary powers and not with reference to this Court's power

under Article 129, the said observations have been explained by this Court in its latter decisions in Delhi

Judicial Services Association v. State of Gujarat [supra] and Union Carbide Corporation v. Union of

India [1991] SCC 584. In paragraph 51 of the former decision, it has been, with respect, rightly pointed out

that the said observations were made with regard to the extent of this Court's power under Article 142[1]

in the context of fundamental rights. Those observations have no bearing on the present issue. No doubt,

it was further observed there that those observations have no bearing on the question in issue in that case

as there was no provision in any substantive law restricting this Court's power to quash proceedings

pending before subordinate courts. But it was also added there that this Court's power under Article

142[1] to do complete justice was entirely of different level and of a different quality. Any prohibition or

restriction contained in ordinary laws cannot act as a limitation on the constitutional power of this Court.

Once this Court is in seisin of a matter before it, it has power to issue any order or direction to do

complete justice in the matter. A reference was made in that connection to the concurring opinion of

Justice A.N. Sen in Harbans Singh v. State of U.P. , where the learned Judge observed as follows :

Very wide powers have been conferred on this Court for due and proper administration of justice. Apart

from the jurisdiction and powers conferred on this Court under Articles 32 and 136 of the Constitution I

am of the opinion that this Court retains and must retain, an inherent power and jurisdiction for dealing

with any extra-ordinary situation in the larger interests of administration of justice and for preventing

manifest injustice being done. This power must necessarily be sparingly used only in exceptional

circumstances for furthering the ends of justice.

The Court has then gone on to observe there that no enactment made by Central or State legislature can

limit or restrict the power of this Court under Article 142 of the Constitution, though the Court under

Article 142 of the Constitution, though the Court must take into consideration the statutory provisions

regulating the matter in dispute. What would be the need of complete justice in a cause or matter, would

depend upon the facts and circumstances of each case.

In the latter case, i.e., the Union Carbide's case [supra], the Constitution Bench in paragraph 83 stated as

follows:

It is necessary to set at rest certain misconceptions in the arguments touching the scope of the powers of

this Court (sic) Article 142(1) of the Constitution, These issues are matter of serious public importance.

The proposition that a provision in any ordinary law irrespective of the importance of the public policy on

which it is founded, operates to limit the powers of the apex Court under Article 142(1) is unsound and

erroneous. In both Garg as well as Antulay cases the point was one of violation of constitutional

provisions and constitutional rights. The observations as to the effect of inconsistency with statutory

provisions were really un-necessary in those cases as the decisions in the ultimate analysis turned on the

breach of constitutional rights. We agree with Shri Nariman that the power of the Court under Article 142

insofar" as quashing of criminal proceedings are concerned is not exhausted by Section 320 or 321 or 482

Cr.P.C. or all of them put together. The power under Article 142 is at an entirely different level and of a

different quality. Prohibitions or limitations or provisions contained in ordinary laws cannot, ipso facto,

act as prohibitions or limitations on the constitutional powers under Article 142. Such prohibitions or

limitations in the statutes might embody and reflect the scheme of a particular law, taking into a Count

the nature and status of the authority or the court on which conferment of powers - limited in some

appropriate way - is contemplates. The limitations may not necessarily reflect or be based on any

fundamental considerations of public policy. Shri Sorabjee, learned Attorney General, referring to Garg

Case, said that limitation on the powers under Article 142 arising form "inconsistency with express

statutory provisions of substantive law" must really mean and be understood as some express prohibition

contained in any substantive statutory law. He suggested that if the expression 'prohibition' is read in

place of 'provision' that would perhaps convey the appropriate idea. But we think that such prohibition

should also be shown to be based on some underlying fundamental and general issues of public policy and

not merely incidental to a particular statutory scheme or pattern. It will again be wholly incorrect to say

that powers under Article 142 are subject to such express statutory prohibitions. That would convey the

idea that statutory provisions override a constitutional provision. Perhaps, the proper way of expressing

the idea is that in exercising powers under Article 142 and in assessing the needs of "complete justice" of a

cause or matter, the apex Court will take note of the express prohibitions in any substantive statutory

provision based on some fundamental principles of public policy and regulate the exercise of its power

and discretion accordingly. The proposition does not relate to the powers of the Court under Article 142,

but only to what is or is not 'complete justice' of a cause or matter and in the ultimate analysis of the

propriety of the exercise of the power. No question of lack of jurisdiction or of nullity can arise.

In view of these observations of the latter Constitution Bench on the point, the observations made by the

majority in Prem Chand Garg's case [supra] are no longer a good law. This is also pointed out by this

Court in the case of Mohammed Anis v. Union of India and Ors. [1994] Suppl.1 SCC 145 by referring to the

decision of Delhi Judicial Services v. State of Gujarat (supra) and Union Carbide Corporation v. Union of

India (supra) by observing that statutory provisions cannot override the constitutional provisions and

Article 142[1] being a constitutional power it cannot be limited or conditioned by any statutory provision.

The Court has then observed that it is, therefore, clear that the power of the Apex Court under Article

142[1] of the Constitution cannot be diluted by statutory provisions and the said position in law is now

well settled by the Constitution Bench decision in Union Carbide's case [supra].

16. The consequence of accepting the said contention advanced on behalf of the contemner and the other

parties, will be two-fold. This Court while exercising its power under Article 142(1) would not even be

entitled to reprimand the Advocate for his professional misconduct which includes exhibition of

disrespect to the Court as per Rule 2 of Section 1 of Chapter II of Part VI of the Bar Council of India Rules

made under the Advocates Act, which is also a contempt of court, since the reprimand of the advocate is a

punishment which the disciplinary committees of the State Bar Council and of the Bar Council of India

are authorised to administer under Section 35 of the Advocates Act. Secondly, it would also mean that for

any act of contempt of court, if it also happens to be an act of professional misconduct under the Bar

Council of India Rules, the courts including this Court, will have no power to take action since the

Advocates Act confers exclusive power for taking action for such conduct on the disciplinary committees

of the State Bar Council and the Bar Council of India, as the case may be. Such a proposition of law on the

face of it deserves rejection for the simple reason that the disciplinary jurisdiction of the State Bar Council

and the Bar Council of India to take action for professional misconduct is different from the jurisdiction of

the courts to take action against the advocates for the contempt of court. The said jurisdiction co-exist

independently of each other. The action taken under one jurisdiction does not bar an action under the

other jurisdiction.

17. The contention is also misplaced for yet another and equally, if not more, important reason. In the

matter of disciplinary jurisdiction under the Advocates Act, this Court is constituted as the final Appellate

authority under Section 38 of the Act as pointed out earlier. In that capacity this Court can impose any of

the punishments mentioned in Section 35(3) of the Act including that of removal of the name of the

Advocate from the State roll and of suspending him from practice. If that be so, there is no reason why

this Court while exercising its contempt jurisdiction under Article 129 read with Article 142 cannot impose

any of the said punishments. The punishment so imposed will not only be not against the provisions of

any statute, but in conformity with the substantive provisions of the Advocates Act and for conduct which

is both a professional misconduct as well as the contempt of court. The argument has, therefore, to be

rejected.

18. What is further, the jurisdiction and powers of this Court under Article 142 which are supplementary

in nature and are provided to do complete justice in any matter, are independent of the jurisdiction and

powers of this Court under Article 129 which cannot be trammeled in any way by any statutory provision

including the provisions of the Advocates Act or the Contempt of Courts Act. As pointed out earlier, the

Advocates Act has nothing to do with the contempt jurisdiction of the court including of this Court and

the Contempt of Courts Act, 1971 being a statute cannot denude, restrict or limit the powers of this Court

to take action for contempt under Article 129. It is not disputed that suspension of the advocate from

practice and his removal from the State roll of advocates are both punishments. There is no restriction or

limitation on the nature of punishment that this Court may award while exercising its contempt

jurisdiction and the said punishments can be the punishments the Court may impose while exercising the

said jurisdiction.

Shri P.P. Rao, learned Counsel appearing for the High Court Bar Association of Allahabad contended that

Article 19[1](a) and 19(2), and 19[1](g) and 19[6] have to be read together and thus read the power to

suspend a member of the legal profession from practice or to remove him from the roll of the State Bar

Council is not available to this Court under Article 129. We have been unable to appreciate this

contention. Article 19[1](a) guarantees freedom of speech and expression which is subject to the

provisions of Article 19[2] and, therefore, to the law in relation to the contempt of court as well, Article

19[1](g) guarantees the right to practise any profession or to carry on any occupation, trade or business

and is subject to the provisions of Article 19[6] which empowers the State to make a law imposing

reasonable restrictions, in the interests of general public, on the exercise of the said right and, in

particular, is subject to a law prescribing technical or professional qualifications necessary for practising

the profession or carrying on the occupation, trade or business. On our part we are unable to see how

these provisions of Article 19 can be pressed into service to limit the power of this Court to take

cognisance of and punish for the contempt of court under Article 129. The contention that the power of

this Court under Article 129 is subject to the provisions of Articles 19[1](a) and 19[1](g), is unexceptional.

However, it is not pointed out to us as to how the action taken under Article 129 would be violative of the

said provisions, since the said provisions are subject to the law of contempt and the law laying down

technical and professional qualifications necessary for practising any profession, which includes the legal

profession. The freedom of speech and expression cannot be used of committing contempt of court nor

can the legal profession be practised by committing the contempt of court. The right to continue to

practise, is subject to the law of contempt. The law does not mean merely the statute law but also the

constitutional provisions. The right, therefore, is subject to the restrictions placed by the law of contempt

as contained in the statute - in the present case, the Contempt of Courts Act, 1971 as well as to the

jurisdiction of this Court and of the High Court to take action under Articles 129 and 215 of the

Constitution respectively. We, therefore, do not see any conflict between the provisions of Articles 129 and

215, and Article 19[1](a) and Article 19(1)(g) read with Articles 19[2] and 19[6] respectively.

19. When the Constitution vests this Court with a special and specific power to take action for contempt

not only of itself but of the lower courts and tribunals, for discharging its constitutional obligations as the

highest custodian of justice in the land, that power is obviously coupled with a duty to protect all the limbs

of the administration of justice from those whose actions create interference with or obstruction to the

course of justice. Failure to exercise the power on such occasions, when it is invested specifically for the

purpose, is a failure to discharge the duty. In this connection, we may refer to the following extract from

the decision of this Court in Chief Controlling Revenue Authority and Superintendent of Stamps v.

Maharashtra Sugar Mills Ltd. [1950] SCR 536.

...But when a capacity or power is given to a public authority there may be circumstances which couple

with the power a duty to exercise it. To use the language of Lord Cairns in the case of Julius v. Bishop of

Oxford: There may be something in the nature of the thing empowered to be done, something in the

object for which it is to be done, something in the conditions under which it is to be done, something in

the title of the person or persons for whose benefit the power is to be exercised, which may couple the

power with a duty, and make it the duty of the person in whom the power is reposed to exercise that

power when called upon to do so'.

20. For the reason discussed above, we find the contemner, Shri Vinay Chandra Mishra, guilty of the

offence of the criminal contempt of the Court for having interfered with and obstructed the course of

justice by trying to threaten, overawe and overbear the court by using insulting, disrespectful and

threatening language, and convict him of the said offence. Since the contemner is a senior member of the

Bar and also adorns the high offices such as those of the Chairman of the Bar Council of India, the

President of the U.P. High Court Bar Association, Allahabad and others, his conduct is bound to infect the

members of the Bar all over the country. We are, therefore, of the view that an exemplary punishment has

to be meted out to him.

21. The facts and circumstances of the present case justify our invoking the power under Article 129 read

with Article 142 of the Constitution to award to the contemner a suspended sentence of imprisonment

together with suspension of his practice as an advocate in the manner directed herein. We accordingly

sentence the contemner for his conviction for the offence of criminal contempt as under :

(11.1) The contemner is sentenced to undergo simple imprisonment for a period of six weeks. However, in

the circumstances of the case, the sentence will remain suspended for a period of four years and may be

activated in case the contemner is convicted for any other offence of contempt of court within the said

period,

(11.2) The contemner shall stand suspended from practising as an advocate for a period of three years

from today with the consequence that all elective and nominated offices/posts at presents held by him in

his capacity as an advocate, shall stand vacated by him forthwith.

The contempt petition is disposed of in the above terms.

 

John D'Souza vs Edward Ani on 17 December, 1993

Equivalent citations: 1994 AIR 975, 1994 SCC (2) 64

Bench: Pandian, S.R.

PETITIONER:

JOHN D'SOUZA

Vs.

RESPONDENT:

EDWARD ANI

DATE OF JUDGMENT17/12/1993

BENCH:

PANDIAN, S.R. (J)

BENCH:

PANDIAN, S.R. (J)

SAWANT, P.B.

CITATION:

1994 AIR 975 1994 SCC (2) 64

JT 1993 Supl. 327 1993 SCALE (4)702

ACT:

HEADNOTE:

JUDGMENT:

The Judgment of the Court was delivered by S. RATNAVEL PANDIAN, J.- The appellant who is an

Advocate in Bangalore practicing since 1942 was proceeded against for professional misconduct on the

basis of a complaint dated November 7, 1986 lodged by the respondent, Mr Edward Am with the

Karnataka State Bar Council (Bangalore) under Section 35 of the Advocates Act alleging that the appellant

with whom a will dated July 1, 1968 executed by his mother-in- 66

law, Mrs Mary Raymond was entrusted for safe Custody against receipt dated July 5, 1968 bearing Seriai

No. 576 in his register of Wills (marked as Ex. P-1) refused to return that will In spite of two letters dated

January 4, 1982 and April 15, 1986 demanding the appellant to hand over the will kept in his custody and

that the appellant thereby has committed professional misconduct.

2. The synoptical resumption of the case which has given rise to this appeal may be briefly stated. One, Mr

N.E. Raymond and his wife, Mrs Mary Raymond were the clients of the appellant. Mrs Mary Raymond

during her lifetime got her will drafted by the appellant and entrusted the same after execution with the

appellant in respect of which the appellant had given a receipt dated July 5, 1968 vide Ex. P-1. The fact

that the will has been deposited with the appellant is supported by an entry in the register of Wills

maintained by the appellant. The execution had appointed her husband as the executor. Her husband,

N.E. Raymond died in the year 1974. Mrs Mary Raymond changed her lawyer, the appellant herein and

engaged one Mr George DaCosta as her advocate. According to the respondent, who is none other than

the son-in-law of Mrs Mary Raymond and who claims to be the legal representative of her estate that

when Mr George DaCosta requested the appellant in 1978 to let him have his client's will, the appellant

denied having it. Thereafter, Mrs Mary Raymond was obliged to make another will prepared by Mr

George DaCosta on June 24, 1978.

3. It is the case of the respondent that he wrote two letters to tile appellant of which one dated January 4,

1982 was sent on behalf of Mrs Mary Raymond under Certificate of Posting from Manchester (U.K.)

marked as Ex. P-6 and another letter dated April 15, 1986 by himself under Registered Post with A/D

marked as Ex. P-8. Both the letters were addressed to the appellant requesting him to return the will

dated July 1, 1968. But the appellant did not reply to both the letters and kept conspicuous silence.

4. The second will executed in 1978 was probated on February 21, 1984 after the death of Mrs Mary

Raymond on October 29, 1983.

5. On being aggrieved at the conduct of the appellant in not replying to his letters and returning the will

kept in his custody, the respondent filed a complaint dated November 7, 1986 before the Karnataka Bar

Council. By a Resolution No. 110 of 1987 on July 12, 1987, the State Council rejected that complaint

holding that there was no prima facie case made out. The respondent preferred a revision before the Bar

Council of India which by its order dated November 20, 1988 set aside the order of the State Bar Council

and allowed the revision holding that there existed prima facie case of misconduct against the respondent

(advocate) and remitted the matter to the Disciplinary Committee of the State Council.

6. Pursuant to the order of the Bar Council of India, the parties appeared before the Disciplinary

Committee of the State Bar Council. The appellant filed his reply on July 3, 1989 to which the respondent

filed his rejoinder on August 12, 1989. The Disciplinary Committee of the State Bar Council by

67

its order dated June 7, 1990 again held that the respondent was not guilty of professional or other

misconduct within the meaning of Section 35 of the Advocates Act, 1961 as alleged by the appellant.

7. Again being dissatisfied with the said order of the Disciplinary Committee, the appellant preferred an

appeal before the Disciplinary Committee of the Bar Council of India which by its order dated June 4,

1993, disagreed with the findings of the State Bar Council and allowed the appeal by setting aside the

order dated June 7, 1990 and held that "the complainant (the present appellant), has succeeded in

proving that the respondent committed professional misconduct and is hereby liable under Section 35 of

the Advocates Act, 1961". The Disciplinary Committee further suspended the appellant herein from

practice for a period of one year.

8. The appellant filed a Stay Petition No. 24 of 1993 under Section 14(2) of the Advocates Act before the

Disciplinary Committee of the Bar Council of India praying to stay the operation of its order dated June 4,

1993 suspending him from practice, so as to enable him to prefer an appeal before this Court. The

Disciplinary Committee of the Bar Council of India vide its order dated June 23, 1993 suspended the

impugned order for one month from the date of communication of the order.

9. The present appeal has been preferred by the appellant along with an application for stay. When the

matter was mentioned on July 20, 1993, this Court stayed the operation of the impugned order.

10. Mr Ram Jethmalani, the learned senior counsel appearing for the appellant after taking us through the

relevant documents assailed the impugned findings contending that the respondent has not substantiated

the allegations that Mr DaCosta requested the appellant to let him have the will Of Mrs Mary Raymond

entrusted to him and that the appellant denied of having it. On the other hand, the letter dated May 1,

1990 written by Mr George DaCosta to the Chairman, Disciplinary Committee of Karnataka BarCouncil

stating, "I should like to clarify my own position and to emphasize and state very clearly that at no time

did I make any request of John D'Souza for the return of her 1968 will nor did she require it. There was,

therefore, no question arising for Mr John D'Souza having denied being in possession of it. Mr John

D'Souza made no such denial...... unambiguously falsifies the allegations of the respondent.

11. According to Mr Jethmalani, the will in question had been revoked and returned on January 13, 1982

presumably to Mrs Mary Raymond who was then alive. That fact is supported by an endorsement made by

the appellant's wife in the register of Wills and that even assuming that the will had not been returned, the

appellant cannot be said to have committed any breach of trust by retaining the revoked will which after

its revocation had become a mere scrap-paper; that the appellant cannot even by imagination be said to

have entertained any dishonest or oblique motive or Carried any pecuniary profit by keeping the revoked

will which had become res nullius and indisputably was a worthless paper having no value.

68

12. In passing, Mr Jethmalani stated that his client though admits of having received the second letter

(Ex. P-8) disputes the demand of will by his alleged first letter dated January 4, 1982 and adds that the

respondent has not proved the charges by examining Mr DaCosta.

13. The respondent appearing in person took much pains to sustain the findings of the Disciplinary

Committee of the Bar Council of India submitting inter alia, that the appellant who kept the will in his

custody was in the nature of a Trustee and as such he was entitled to return the will on demand and that

the question of oblique motive or private gain has no relevance. As neither the testatrix, Mrs Mary

Raymond nor the respondent, being the legal representative of the estate of the testatrix, had abandoned

the will which was their property, it cannot be said that the will had become res nullius. He asserts that

the appellant should have received the first letter or at least deemed to have received that letter (Ex. P-6)

which had been posted from Manchester (U.K.) under Certificate of Posting (Ex. P-6A).

14. According to the respondent, the facts and circumstances of the case have amply proved that the

appellant had blatantly violated the relationship of the client and the attorney created under law and

betrayed the trust and confidence reposed by the respondent in him.

15. Both parties in support of their respective pleas cited certain decisions which we do not recapitulate

here as we have decided to dispose of the matter purely on the facts of the case. However, it may be

mentioned that Mr Ram Jethmalani in his reply has given tip the argument that the document had

become res nullius but reiterated his stand on the other grounds.

16. Though the State Bar Council has found that the conduct of the appellant has not amounted to

"misconduct much less a professional misconduct to punish the respondent" and that "he has not proved

any 'mens rea' " on the part of the appellant in withholding the will and given too much emphasis on the

point of delay and the strained relationship between the parties, observed:

"However we hope the respondent will be hereafter careful in dealing with this type of matters."

17. The Disciplinary Committee of the Bar Council of India after examining the matter in detail

disapproved the findings of the State Bar Council holding thus: "The Disciplinary Committee of the State

Bar Council gave too much emphasis on the point of delay in filing the complaint. It also referred to some

strained relations between the parties. We are not inclined to agree with these findings. A mere delay or

strained relations between the parties per-se would not make a complaint false. These are the points

which should put us on ground while appreciating the contentions raised on behalf of either side. But in a

case in which most of the facts are admitted there is little to do except holding that nonreturn of the

property of the complainant does not amount to professional misconduct on the part of the Advocate. The

respondent

69

tried to submit that will had been returned but no convincing evidence to that effect was produced."

18. On the basis of the above findings, the impugned order was passed. The fact that Mr George DaCosta

requested the appellant to hand over the will cannot be said to be an afterthought and invented only at the

time of filing the complaint. Even in Ex. P-6, it is mentioned that, "Mr George DaCosta requested the

appellant to hand over the will of Mrs Mary Raymond prepared in 1968 and held in his safe custody and

that it was understood that the appellant denied that the will was in his custody". In the second letter

dated April 15, 1986 marked as Ex. P-8 which has been admittedly received by the appellant, the facts of

demand made by Mr DaCosta to return the will and the appellant having denied of it are made mention

of. In addition, the respondent has stated that he wrote a letter on January 4, 1982 to which there was no

reply. The only document on which the appellant attempts to substantiate his case that there was no such

demand as well as denial by him is the letter dated May 1, 1990 sent by Mr DaCosta to the State Bar

Council. This letter has been sent only after the proceedings before the State Bar Council had been

completed but, of course, before the order was passed. However, the order of the State Bar Council did not

have any reference to this letter, obviously for the reason that this document was not produced before the

proceedings were over. Though Mr Jethmalani has insisted that this letter was filed only on consent, the

very fact that the letter did not come into existence earlier to May 1, 1990 and that Mr DaCosta was not

examined, demands not to place much reliance on this letter, especially in the teeth of the averments

found in Ex. P-6 and Ex. P-8. As pointed out by the Bar Council of India, there was no convincing

evidence that the appellant had returned the will. As pleaded by the respondent, the will though revoked

was the property of Mrs Mary Raymond and on her death had become his property and that the said

document was not abandoned by either of them.

19. It is disheartening to note that the documentary evidence and the circumstances bearing the case leave

an irresistible inference that the entry dated January 13, 1982 in the register of Wills should have been

manipulated as if the document had been returned. No doubt, in a disciplinary proceeding of this nature,

the rule is that the charging party has the burden of proving the charge of misconduct of the respondent.

On an overall evaluation of the facts and circumstances of the case we hold that the respondent has

proved that the appellant had not returned the will. It has to be remembered, in this connection, that his

earlier stand was that he did not have the will. He changed the position later and came out with the case

that he had returned it in 1982 and for this purpose he relied upon an endorsement made by his wife in

his register of documents. We are left with the irresistible conclusion, in the circumstances, that he had

not returned the will though demands were made first by the testatrix, then by her new lawyer and by the

respondent who was also holding the power of attorney from the testatrix when he wrote the first letter

and was the executor appointed under the second will. The

70

conduct of the appellant in not returning the will even on demand is unworthy of an advocate belonging to

a noble profession. The appellant has no right to withhold the will. On the other hand, he was bound in

duty to return the said will when demanded because the instrument was entrusted to his custody by the

testatrix, Mrs Mary Raymond only on trust.

20. Under these circumstances, we do not find any reason much less compelling reason to interfere with

the impugned order of the Disciplinary Committee of the Bar Council of India. The Appeal is accordingly

dismissed and the stay granted by this Court shall stand vacated. No costs. 72

 

L.D. Jaisinghani vs Naraindas N. Punjabi on 27 November, 1975

Equivalent citations: AIR 1976 SC 373, (1976) 1 SCC 354, 1976 (8) UJ 68 SC

Author: M Beg

Bench: A Ray, M Beg, P Shinghal, R Sarkaria

JUDGMENT

M.H. Beg, J.

1. The appellant is an Advocate against whom a complaint was made on 25th May, 1971 before the Bar

Council of Maharashtra by the Respondent Naraindas M. Punjabi. As the complaint was not disposed of

within six months of its receipt by the State Bar Council it was transferred to the Disciplinary committee

of the Bar Council of India under Section 36B of the Advocates Act, 1961 for disposal.

2. The complaint alleged as follows:

He was the co-owner with two others of certain premises of which one of the tenants was M/s. Hindustan

Electric and Radio Corporation. He, together with the other co-owners, had Bled suits No. 840 of 1961

and 1040 of 1964 in the Bombay City Civil Court against the Corporation. These suits were off-shoots of a

prior proceeding No. 4127 of 1960 in the small Causes' Court for the ejectment of the Corporation, which

was dismissed on 10th March, 1961. S.C. Suit No. 840 of 1961 was, thereafter filed, but it was withdrawn

on 19th September; 1963, with liberty to file a fresh suit. On or about 10th February, 1964, the Advocate

concerned. L.D. Jaisinghani, took Rs. 350/- from the complainant for filing the fresh suit in the Bombay

City Civil Court and gave the complainant a copy of the plaint in which No. 1040 of 1964 was given as the

number of the new suit. The complainant, after waiting for a few years made casual enquiries from the

Advocate as to when suit No. 1040 of 1964 would come up for hearing. The Advocate used to tell him that

it would come up any day during 1969 to 1970. In all this period, neither the defendant Corporation was

remitting any rents nor depositing anything in Court. During 1969 to 1970, the complainant requested the

Advocate to move the. Court for payment of rents by the Corporation. But, the Advocate kept putting this

off by pleading that the suit may come up any day for hearing in the ordinary course. The two co-owners

sold their shares in the building to the complainant, on 24th November, 1970, and 4th January, 1971,

respectively, so that he became the sole landlord and owner of the property. After this, the complainant

had an additional reason to request L.D. Jaisinghani, the Advocate, to file a petition for the amendment of

the plaint so that he may figure as the sole plaintiff and also apply to the court for payment of rents. The

Advocate agreed to do this. Nevertheless, he went on procrastinating until, by a letter dated 8th January,

1917, the complainant pressed him to do something very definitely. After this, the Advocate got a Notice of

Motion sworn by the complainant before Mr. Tiwari, Superintendent of Bombay City Civil Court. The

Advocate then informed the complainant that Notice of Motion had been lodged in Court and served on

the Corporation's Advocate, Mr. Bhagat, through a Clerk, named Adwani, of a late Advocate Mr. Wadhwa,

and that it would come up for hearing soon. As nothing seemed to come up for hearing, complainant, at

last addressed a letter to the Registrar of the Bombay City Civil Court on 9/l6th March, 1971, informing

him of the lodging of the Notice of Motion and enquiring what had happened to it. The Advocate, L.D.

Jaishinghani, then told the complainant that the matter would be heard on 20th April, 1971, at 12 noon,

before the Judge Mr. Kattal. On 20th April, 1971, on enquiry from the office of the Court, the complainant

learnt that no Notice of Motion is there and that no 1040 of 1964 was a fictitious reference given by the

Advocate of a suit which was never filed by him. It turned out to be another suit filed by another person

through another Advocate. When Tendolkar, the Head Clerk enquired about the Notice of Motion from

the Advocate L.D. Jaisinghani, he said that he had given away all the papers to Mr. Adwani the ex-clerk of

Mr. Wadhwa and that he would enquire further after his return from Bhopal. The complainant alleged

that the Advocate had thus demonstrated that he had committed a breach of trust and faith and cheated

the complainant by fraudulent means and was guilty of serious professional misconduct.

3. In reply, the Advocate, while denying the truthfulness of the allegations set out above, admitted that he

had filed suit No. 840 of 1961, but he stated that he could not remember the facts fully as it was an old

matter. The Advocate also denied having filed or having been asked to file any suit No. 1040 of 1964. The

Advocate, however, admitted receiving the sum of Rs. 350/- but, according to him, this was part payment

of his fee towards a proposed suit of which a draft was handed over to the complainant. The Advocate's

case was that as the complainant was neither serious nor willing to incur the expenses of litigation and

had not supplied the necessary details or expenses, the suit could not be filed. He denied the truth of other

allegations so far as he himself was concerned. He asserted that the letter to the Registrar must have been

written by the complainant and enquiries made with a view to creating evidence. His case also was that,

apart from the draft copy of the plaint which had a number of blanks in it, including a blank space for the

number of the suit, the other documents produced by the complainant were fabricated with some ulterior

motive. The Advocate did not set up what could be the reason for the complainant's displeasure with him

or attempt to involve him falsely. In his evidence he alleged that this was due to the fact that the Advocate

had refused to give evidence in a case in which the complainant had been proceeded against for malicious

prosecution.

4. The All India Bar Council, after examining the documents and the evidence in the case, observed that,

although, the matter was old and receipt of a sum so small as Rs. 350/- could not, ordinarily, serve as

sufficient proof to discredit the evidence of an Advocate against that of a litigant, who alleged dishonestly

against an Advocate, yet, the supporting documents and the conduct of the Advocate, particularly the

untruthful statements he had made about his past transactions which also indicated similar

misappropriations of monies belonging to clients the complainant version must be accepted. The finding

recorded by the Committee was:

having regard to the oral and documentary evidence on record and all the facts and circumstances of the

present case, we are unable to come to any other conclusion except that the Respondent has been guilty of

gross professional misconduct. This is not merely a case of an Advocate not filing a suit on behalf of his

client after taking monies for the same, but going to the length of committing and repetuating a gross

deception on his client by giving a false and fictitious number of a suit which has not been filed and

leading on his client to believe that a suit has been filed. A person who can stood to such practices had no

place in the legal profession. This sort of behavior is nothing short of rank dishonesty and cheating.

Practices such as these expose the profession of law to contempt and ridicule of other members of the

society.

5. We find, after going through the judgment of the Committee that, although, its indignation over the

conduct of the appellant, particularly in view of an unenviable record of similar complaints against him in

the past by Dr. Nagdev, and another by Mrs. Butler, and the third by one Tarachand, which had let to

disciplinary proceedings being finally dropped after the Advocate or somebody else on his behalf had

made payments to the complainant litigants, and the prevaricating replies of the Advocate, attempting to

conceal or deny these proceedings, may have been justified, yet, these very features of the case were also

likely to create a prejudice against the accused Advocate who may, in the particular instance now before

us, not have been really so blameworthy as one may, with his background, he inclined to believe. After

having been taken through the evidence, we are not convinced that the complainant was really so truthful

and reliable as the members of the disciplinary Committee considered him to be. There are several

features in his evidence which make his version difficult to rely upon implicity. We mention these below:

Firstly, the complainant's evidence shows that he was not the kind of person who could swallow so easily

detectable a fraud of which he claimed to be the victim for so long a period of time. He admits that the

Advocate had appeared in about six or seven suits on his behalf. There had been proceedings against him

for malicious prosecution. He had denied that he wanted the appellant to give evidence, but when

confronted by documentary evidence, he was forced to admit that this was true.

7. Secondly, although the complainant stated that Rs. 350/- included the Court fee in respect of the suit,

yet, he stated, after that, that the Advocate had told him that the deficit Court fee would be realised from

him afterwards. If as we find from evidence, the court fee alone came to about Rs. 400/-, it was difficult to

believe that any suit could have been agreed to be filed without realising the deficit court fee. The

statement of the complainant, that the appellant used to file suits for him and then realise the Court fee, if

true, indicated that the appellant would be expected to make a demand for further payment after alleging

that he had filed the suit. But, the complainant not merely does not speak of any such further demand but

says that no charge was made even for taking out the notice of motion on the alleged copy of which the

number of the suit given is 840, which does not tally with No. 1040 given by the complainant. Suit No.

840 had been withdrawn long before.

8. Thirdly, the copy of the plaint which was sought to be used by the complainant as proof of what,

according to him, the Advocate alleged was the plaint of the suit already filed, had significant blanks in it.

Even the number 1040 and the amount claimed had been admitted by the complainant to have been

subsequently filled in, in his own hand. But, in his complaint, it was stated that No. 1040 was already on

the plaint which had been filed. This shows that the complainant had not come with an entirely truthful

version. He had made interpolations in the documents to fit in with his version.

9. Fourthly, the complaint was, apparently, sufficiently acquitted with the requirements of litigation to

know that no plaint could be filed on his behalf and on behalf of his co-owners without the signatures of

his co-owners. When asked whether the co-owners had signed the plaint, he pretended to be ignorant.

There are other defects also in his evidence which we need not dealwith.

10. It is true that the Advocate had not fared well under cross-examination. He had tried to conceal

similar complaints against him in the past. It is, however, equally true that the complainant was no

greenhorn. At any rate, he was not so gullible as he tried to make himself out to be. After going through

the relevant evidence, we doubt whether both sides have come out with full and true facts. It is mire likely

that there was some dispute over the payment of R9. 350/- which the Advocate appellant claimed as his

fee for work done, but, the complainant seems to have considered himself entitled to demand the payment

back. It is possible that there may have been other reasons too for friction between the two so as to lead to

a disruption between the complainant and the counsel whom he had been frequently engaging in addition

to others. In any case, we are left in doubt whether the complaint's version, with which he had come

forward with considerable delay, was really truthful. We think that, in a case of this nature, involving

possible disbarring of the Advocate concerned, the evidence should be of a character which should leave

no reasonable doubt about guilt. The Disciplinary Committee had not only found the appellant guilty but

had disbarred him permanently.

11. The complainant has no doubt produced Tendolkar and D.D. Nalvade to show what enquiries were

made relating to suit No. 1040 of 1964 by the Respondent complainant. It is, however, not disputed that

the respondent did make those enquiries. The case of the appellant was that these enquiries were made in

an attempt to holster up a weak case. These enquiries merely prove a much too belated conduct of the

complainant. They could be the result of an attempt to give a semblence of truth to a coloured and

exaggerated version. It is also true that the appellant had been most unwise in not sending a Registered

letter in reply to the registered notice received by him on 8th January, 1971 by the complainant. His

version that he spoke to the complainant on the telephone and sent a letter in reply on 15th January, 1971,

of which a copy was Ex. RI, had been rejected by the Committee on the ground that the Advocate's

conduct did not appear to he above board We cannot help thinking that the Committee had been unduly

swayed by the unsavoury background of the appellant so that it could not see its way to giving the

appellant even the benefit of doubt in the instant case.

12. In the circumstances of this case, we think that the appellant is entitled to the benefit of doubt. We,

then fore, allow this appeal and set aside the order disbarring the appellant who, we hope, has learnt now

to conduct himself in a more satisfactory manner in his dealings with his clients. We make no order as to

costs.

 

Rajendra V Pai vs Alex Fernandes AIR 2002 SC 1808 

Author: R Lahoti // Bench: R Lahoti, P V Reddi

CASE NO.: Appeal (civil) 6142-6144 of 2001

PETITIONER: RAJENDRA V. PAI

Vs.

RESPONDENT: ALEX FERNANDES & ORS.

DATE OF JUDGMENT: 09/04/2002

BENCH:

R.C. Lahoti & P. Venkatarama Reddi

JUDGMENT:

R.C. Lahoti, J.

The appellant, an advocate on the rolls of the Bar Council of Maharashtra and Goa, has been found guilty of professional

misconduct and by order dated 22.1.2000, passed under Section 35 of the Advocates Act, 1961, his name has been directed to

be removed from the State roll of advocates. The appeal to the Bar Council of India preferred by the appellant has been

dismissed on 22.12.2000. Feeling aggrieved by the said two orders these appeals have been preferred under Section 38 of the

Advocates Act.

A brief resume of the facts would suffice for the purpose of this order. It appears that there were large scale land acquisition

proceedings in the village to which the appellant belongs. There were about 150 villagers whose lands were involved. Some

land owned by the family members of the appellant also suffered acquisition. Inasmuch as the appellant was an advocate and

also personally interested in defending against the proposed acquisition of land belonging to his family members, the

villagers either on their own or on persuasion confided in the appellant, who played a leading role initially in contesting the

land acquisition proceedings and later in securing the best feasible quantum of compensation. There were around 150

claimants out of whom three only filed complaints against the appellant which were inquired into by the Disciplinary

Committee of the State Bar Council and held proved against the appellant. The substance of the allegations found proved is

that the appellant solicited professional work from the villagers; that he settled contingent fee depending on the quantum of

compensation awarded to the claimant; and that he identified some claimants in opening a bank account wherein the cheque

for the awarded amount of compensation was lodged and then the amount withdrawn which identification was later on

found to be false. The gist of only relevant one out of the several pleas taken up by the appellant before the Bar Council and

pressed for the consideration of this Court by learned counsel for the appellant is that the entire episode points out only to

rustic naivety on the part of the appellant though an advocate. It was submitted that the appellant did not solicit professional

work as such and in fact the villagers confided in him because of his being an advocate, also looking after litigation relating

to his family land, and the villagers had voluntarily agreed to contribute to a collective fund raised for covering the expenses

of litigation as they were likely to make an overall saving in litigation expenses by fighting collectively as a group and it is out

of this fund that the appellant incurred expenses including those by himself. So far as false identification in opening the bank

account is concerned the appellant acted irresponsibly when he relied on other villagers who persuaded him to make an

identification which only was acceptable to the authorities on account of his being an advocate. This fact finds support from

the circumstance that out of little less than 150, only 3 of the litigating landowners have filed these complaints to Bar

Council. It was urged most passionately by the learned counsel for the appellant that it was the first fault, if at all, of the

appellant and if debarred from practise for his life at his age yet in early forties, the appellant and his family would be

completely ruined.

We have heard the learned counsel for the parties. Ordinarily, this Court does not interfere with the quantum of punishment

in such like matters where an elected statutory body of professionals has found their own kinsman guilty of professional

misconduct and hence not worthy of being retained in profession. So far as the finding as to professional misconduct is

concerned we cannot find any fault or infirmity therewith and indeed learned counsel for the appellant very wisely and fairly

gave up challenge to such finding and kept himself confined to pursuing and pressing what can be termed as a mere mercy

appeal. Debarring a person from pursuing his career for his life is an extreme punishment and calls for caution and

circumspection before being passed. No doubt probity and high standards of ethics and morality in professional career

particularly of an advocate must be maintained and cases of proved professional misconduct severely dealt with; yet, we

strongly feel that the punishment given to the appellant in the totality of facts and circumstances of the case is so

disproportionate as to prick the conscience of the Court. Excepting the instance forming gravamen of the charge against the

appellant there does not appear to have been any other occasion where the appellant may have defaulted or misconducted

himself. Undoubtedly, the appellant should not have indulged into prosecuting or defending a litigation in which he had a

personal interest in view of his family property being involved. Though the explanation put-forward on behalf of the

appellant which has been consistently taken before the State Bar Council, the Bar Council of India and before this Court, may

not provide a legally acceptable defence so as absolve him from the charge of misconduct levelled against him but the same

does deserve to be taken into consideration for mellowing down the gravity of indictment and hence for determining the

quantum of punishment. In a group litigation wherein a little less than 150 persons were involved only 3 have found a cause

for grievance inspiring them to complain against the appellant is a factor of some relevance. It was conceded by the learned

counsel for the complainant-respondents that the complainants have not suffered any financial loss on account of the

appellant. On the totality of the facts and circumstances of the case, in our opinion, it would meet the ends of justice if the

appellant is suspended from practise for a period of seven years. Such sentence would satisfy the need for punishment and

also act as deterrent on the appellant and set an example to others so as to prevent recurrence of such like incidents.

The appeals are partly allowed. Though the finding of the appellant having been guilty of committing professional

misconduct as arrived at by the State Bar Council and the Bar Council of India is maintained, the punishment awarded to the

appellant is modified. Instead of the name of the appellant being removed from the State rolls of Bar Council of the State it is

directed that his licence to practise shall remain suspended for a period of seven years. Order awarding the costs is

maintained. The appeals stand disposed of in these terms. No order as to the costs in this Court.

...............J

(R.C. LAHOTI)

.....J.

(P.VENKATARAMA REDDI)

April 9, 2002.

 

 

P.J. Ratnam vs D. Kanikaram And Others on 10 April, 1963

Equivalent citations: 1964 AIR 244, 1964 SCR (3) 1

Bench: Ayyangar, N Rajagopala

PETITIONER:

P.J. RATNAM

Vs.

RESPONDENT:

D. KANIKARAM AND OTHERS

DATE OF JUDGMENT:

10/04/1963

BENCH:

AYYANGAR, N. RAJAGOPALA

BENCH:

AYYANGAR, N. RAJAGOPALA

SINHA, BHUVNESHWAR P.(CJ)

SHAH, J.C.

CITATION:

1964 AIR 244 1964 SCR (3) 1

CITATOR INFO :

R 1985 SC 28 (30)

ACT:

Professional misconduct--Complaint--Enquiry--Advocate misappropriating client's

money--If guilty of professional misconduct--Proceeding in respect of professional

misconduct and proceeding in a criminal Court- Object of-Differentiation-Punishment-

Legal practitioners Act, 1879 (18 of 1879), ss. 12, 13--Indian Bar Councils Act, 1926 (38

of 1926), s. 10 (2).

HEADNOTE:

The respondents and one other Kagga Veeraiah, were plaintiffs in a suit for possession

of certain lands and the appellant was their Advocate. Tim suit was dismissed and an

appeal was preferred therefrom to the Subordinate Judge. Pending the disposal of the

appeal, the court directed the sale proceeds of the standing crops on the suit land to be

deposited into court, and a sum of Rs. 1,600/- was so deposited. The plaintiff's appeal

was allowed and the defendants preferred a second appeal to the High Court. Pending

disposal of the second appeal, plaintiff's application for withdrawing the amount was

allowed by the court on furnishing security of immovable property. A cheque petition

was filed which was allowed and thereafter a cheque for Rs. 1,452/4/- was issued in

favour of the appellant. The appellant an Advocate admitted that he had received and.

had cashed the cheque on behalf of his clients who were entitled to be paid this sum.

The second appeal was allowed by the High Court and the plaintiff's suit was dismissed,

as a result of which the plaintiffs had to refund the sum of the defendants in the suit.

The plaintiffs made a written demand on the appellant for the proceeds of the cheque

that had been cashed by him and not paid over to them. The appellant in reply claimed

to have paid over the sum to them on their passing a receipt which happened to be in the

bundle. of case-papers returned to 2

them. The respondents filed a complaint under as. 12 and 13 of the Legal Practitioners

Act. The explanation of the Advocate was called for and the District Judge was directed

to hold an enquiry and forward his report to the High Court. His report was that the

appellant's case was not unbelievable and he was entitled to the benefit of doubt. The

matter was heard by a Bench of three Judges of the High Court, who held him guilty of

professional misconduct and suspended him for five years from practice. In this Court

the appellant contended, (1) that the Bar Council had not been consulted before the case

was referred to the learned District Judge for inquiry and report and this vitiated the

legality of the entire proceedings against the appellant. (2) That the complaint filed by

the respondents on the basis of which action was taken against the appellant was not

shown to have been signed by them, nor properly verified by them as required by the

rules of the High Court. (3) That as in substance the charge against the appellant was

misappropriation of moneys belonging to the clients, the High Court should have left

the complainants to their remedy of prosecuting the appellant and should not have

proceeded to deal with him under s. 10 of the Bar Councils Act. (4) That there was a

procedural irregularity in the mode in which the case against the appellant was

conducted. (5) That one of the plaintiffs--Kagga Veeraiah had himself admitted in his

evidence that he and others had received the proceeds of the cheque which the appellant

had cashed and that in the face of this admission the High Court was clearly wrong in

finding that the appellant had failed to pay over the money to his clients.

Held (1) that the fact that in the order of reference of the proceedings under s. 10(2) of

the Bar Councils Act, to the District Judge, there is no explicit statement that the Bar

Council had previously been consulted, is not decisive on the point. There would be a

presumption of regularity in respect of official and judicial acts and it would be for. the

party who challenges such regularity to plead and prove his case. Since, this objection

was not raised in the High Court, even when the appellant applied for a certificate, this

Court will not entertain this objection which rests wholly upon a question of fact. (2)

The complaint petition had been signed by the respondents and properly verified and

even otherwise since the High Court was competent to initiate these proceedings suo

motu under s. 10(2) of the Act, the point raised is wholly without substance.

(3) There is a clear distinction between cases where the misconduct is one in relation to

the practitioner's duty to

3

his client and other cases where it is not so. In the former Class of cases the court would

be exercising its discretion properly if it proceeded to deal with the charge as a piece of

professional misconduct without driving the complainant to seek his remedy in a

criminal court. 80 far as the facts and circumstances of the present case are concerned,

it must be held, that the High Court was fully justified in proceeding against the

appellant under the provisions of s. 10 of the Bar Councils Act. Chandi Charan Mitter a

Pleader, In re. (1920) I.L.R. 47 Cal. 1115 and Emperor v. satish Chandra Singha, (1927)

I,L.R. 54 Cal. 721, distinguished.

Stephens v. Hills, [1842] 152 E.R. 368, referred to. (4) No complaint, that the appellant

was prejudiced by the manner in which the inquiry was conducted in the matter of the

order in which the evidence was adduced, was made either before the District Judge or

before the High Court and there is nothing on the record to suggest that any prejudice

had occurred to the appellant.

(5) The evidence of Kagga Veeraiah was correctly characterised by the High Court as

devoid of truth and the appellant, therefore, cannot rely on any admission of this

witness as evidence of the plaintiffs having received the sum.

Having regard to the gravity of the offence, there is no justification for reducing the

period of suspension. The appeal therefore, must be dismissed.

JUDGMENT:

CIVIL APPELLATE JURISDICTION:Civil Appeal No. 321 of 1962.

Appeal by special leave from the Judgment and order dated August 4, 1959 of the

Andhra Pradesh High Court in Referred Case No. 29 of 1957..

M. Rajagopalan and K.R. Choudhri, for the appellant. The respondent did not appear.

April 10. The Judgment of the Court was delivered by AYYANGAR J.--This appeal has

been filed by special leave of this Court against the judgment of

4

the High Court of Andhra Pradesh by which the appellant who is an Advocate was held

guilty of professional misconduct and had been suspended from practice for five years.

The facts relating to the misconduct charged were briefly these: The three respondents

before us and one other--Kagga Veeraiah--were plaintiffs m O.S. 432 of 1951 on the file

of District Munsiff, Guntur in which a claim was made for possession of certain lands.

The appellant was the Advocate for these plaintiffs. The suit was dismissed by the Trail

Court and an appeal was filed therefrom to the Subordinate Judge, Guntur and pending

the disposal of the appeal there was a direction by the Court that the crops standing on

the suit-land be sold and the proceeds deposited into Court. In pursuance of this order a

sum of about Rs. 1,600/- was deposited into Court-on December 19, 1951. The appeal by

the plaintiffs was allowed by the Subordinate Judge. The' unsuccessful defendants

preferred a second appeal to the High Court, but meanwhile the plaintiffs made an

application for withdrawing the amount deposited in Court. By virtue of interim orders

passed by the Court they were granted liberty, to withdraw the sum pending disposal of

the second appeal in the High. Court filed by the defendants on furnishing security of

immovable property. The security was furnished and. the withdrawal was ordered. A

cheque petition E.A. 250 of 1952 was accordingly filed which was allowed and thereafter

a cheque was issued in favour of the Advocate--the appellant before us--for Rs.

1,452/4/-, this being the sum remaining to the credit of the plaintiffs after deduction of

poundage etc. It was admitted that this cheque was cashed by the appellant on April 23,

1953. The appellant did not dispute that. he cashed this cheque on behalf of his clients

or that the latter were entitled to be paid this sum and the charge of professional

misconduct against the

5

appellant was that the Advocate had not made this payment in spite of demands but that

on the other hand he falsely claimed to have paid them this sum.

To resume the narrative of the matters leading to these proceedings, the second appeal

before the High Court was disposed of in August, 1955 and by the judgment of that

Court the appeal was allowed and the plaintiff's suit dismissed. The plaintiffs had

therefore to refund the sum to the defendants in the suit. On February 8, 1956 the

plaintiffs made a written demand on the appellant for the sum complaining that the

cheque had been cashed by him but that its proceeds had not been paid over. On April

14, 1956 the appellant replied to this notice claiming to have paid over the sum to them

on their passing a receipt and stating.that the receipt happened to be in the bundle of

case-papers which had been returned to them. But even before the receipt of this reply

the three respondents before us filed a complaint under ss. 12 and 13 of the Legal

Practitioners Act alleging the non-payment of the money and charging the Advocate

with professional misconduct in respect of it, and praying for an enquiry into his

conduct. The appellant was an Advocate and hence the complaint was treated as one

under s. 10 (2) of the Indian Bar Councils Act, 1926. The explanation of the Advocate

was called for. and thereafter the District. Judge, Guntur was directed. to hold an

inquiry into the allegations of professional misconduct against the appellant and

forward his report to the High Court. An elaborate inquiry was thereafter held by the

learned District Judge who, after considering the .evidence, submitted a report

recording his conclusion that the appellant's case was not unbelievable" and that on that

ground he was entitled to the benefit of doubt. The matter then came up before the High

Court for consideration on this report. Some point

6

appears to have been made before the Court that certain material witnesses had not

been examined. Agreeing with the submission they directed the District Judge to

summon and examine them and this was accordingly done, their evidence was recorded

and submitted to the High Court. The matter was thereafter heard by a Bench of 3

Judges and the learned Judges being of the opinion that the charge against the appellant

viz., that he did not pay over the amount of 'the cheque to his clients was clearly made

out, held him guilty of professional misconduct and imposed the punishment of

suspension from practice, as stated earlier. The appellant then applied and obtained

leave of this court--special leave under Art. 136 to challenge the correctness of these

findings and that is how the matter is before us.

Before proceeding further we desire to indicate the nature of the jurisdiction of this

Court in such matters and in broad outline the principles which it would observe in

dealing with them. The jurisdiction exercised by the High Court in cases of professional

misconduct is neither civil nor criminal as these expressions are used in Arts. 133 and

134 of the Constitution. In one aspect it is a jurisdiction over an officer of the Court and

the Advocate owes a duty to the Court apart from his duty to his clients. In another

aspect it is a statutory power and we would add a duty vested in the Court under s. 10 of

the Bar Councils Act to ensure that the highest standards of professional rectitude are

maintained, so that the Bar can render its expert service to the public in general and the

litigants in particular and thus discharge its main function of co-operating with the

judiciary in the administrance of justice according to law. This task which is at once

delicate and responsible the statute vest in the High Court and therefore the primary

responsibility of ensuring it rests with it,

7

This Court is in consequence most reluctant to interfere with the orders of High Courts

in this field, save in exceptional cases when any question of principle is involved or

where this Court is persuaded that any violation of the principles of natural justice has

taken place or that otherwise there has been a miscarriage of justice. Where however

none of these factors, are present, it is not the practice of this Court to permit the

canvassing of the evidence on the record either for reappraising it or to determine

whether it should be accepted or not. The findings of the High Court therefore on

questions of fact are not open before us and this Court would only consider whether on

the facts found, the charge of professional misconduct is established.

Learned Counsel for the appellant urged before us several grounds in support of the

appeal but we consider that none of them merits serious attention. It was first submitted

that the Bar Council had not been consulted before the case was referred to the learned

District Judge for inquiry and report and that this vitiated the legality of the entire

proceedings against the appellant. Our attention was drawn to the terms of s. 10 (2) of

the Indian Bar Councils Act reading:

"10. (2) Upon receipt of a complaint made to it by any Court or by the Bar Council, or by

any other person that any such Advocate has been guilty of misconduct, the High Court

shall, if it does not summarily reject the complaint, refer the case for inquiry either to

the Bar Council, or, after consultation with the Bar Council, to the Court of a District

Judge (hereinafter referred to as a District Court) and may of its own motion so refer

any case in which it has otherwise reason to believe that any such advocate has been so

guilty."

and the argument was that the matter could not have been remitted for inquiry to a

District Judge

8

unless the. statutory pre-condition of consultation. with the Bar Council had taken

place. It is not necessary to consider in this case whether this provision for consultation

is mandatory or not but we shall assume that it is so. There was however no hint of this

objection to the validity of the proceedings up to the stage of the appeal in this Court.

The question whether there has or has not been a consultation is one of fact and if this

point had been raised in the High Court we would have information as to whether there

had been such consultation or not, and if not why there was none. Even when the

appellant applied to the High Court for a certificate of fitness under Art. 133 (1)(c) this

objection was not suggested as a ground upon which the validity of the proceedings

would be impugned. In these circumstances we are not disposed to entertain this

objection which rests wholly upon a question of fact. The fact that in the order of

reference of the proceedings under s. 10 (2)to the District Judge there is no explicit

statement that the Bar Council had previously been consulted is not decisive on the

point. There would be a presumption of regularity in respect of official and judicial acts

and it would before the party who challenges such regularity to plead and prove his case.

It was next contended that the complaint filed by the respondents on the basis of which

action was taken against the appellant was not shown to have been signed by them, nor

properly verified by them as required by the rules of the High Court. We consider this

objection frivolous in the extreme. It was argued by the appellant before the High Court

that there was dissimilarity between the several signatures of the three respondents

found in the petition sent by them and that to be found in the plaint etc., of O.S. 432 of

1951 and that this was some proof that it was not the respondents who were

9

really responsible for the petition but that someone inimically disposed towards the

appellant. The learned Judges of the High Court rejected this submission in these

words:

"For one thing, we are unable to find any such dissimilarity. Even so, that has not much

of a bearing on the question whether the respondent (appellant) had discharged the

burden viz., of proving that he had made the payment to the petitioners. This argument

would have had some force if the petitioners had not given evidence against the

respondent. Further, no such suggestion was put to any of the plaintiffs."

This is on the question of the dissimilarity of the signatures on which rests the argument

that the respondents were not the complainants. Coming next to the point about the

verification of the complaint the matter stands thus: The three complainants (the

respondents before us) originally filed a petition on March ?6, 1956 before the District

Judge but this did not bear the attestation of a gazetted officer or other authority as

required by the rules. This defect was made good by a fresh petition which they filed

before the District Judge on April 16, 1956. After the petition was signed by the three

petitioners they added a verification in these terms: "We do hereby state that the facts

stated above are true to the best of our knowledge, information and belief,"

and then they-signed again. These three signatures, they made before the District Judge

who attested their signatures on the same day and when for-. warding this complaint to

the High Court on

10

April 18, 1956 the learned District Judge stated these facts and added:

"The petitioners appeared before me on April 16, 1956. I got them sign the petition in

my presence and I attested the same."

It is thus clear that they made three signatures in token of their signing the petition, the

verification and a further affirmation before the District Judge who attested the same.

Learned Counsel did not suggest before us that the District Judge was in error about the

identity of the parties who appeared before him and affixed the signatures in three

places in the complaint before him. It is because of these circumstances that we have

stated that this objection was most frivolous. It is only necessary to add that seeing that

the High Court is competent to initiate these proceedings suo motu under s. 10 (2) the

point raised is wholly without substance.

The next submission of learned Counsel was that as in substance the charge against the

appellant was misappropriation of money belonging to the clients, the learned Judges of

the High Court should have left the complainants to their remedy of prosecuting the

appellant and should not have proceeded to deal with him under s. 10 of the Bar

Councils Act. In support of this submission learned Counsel referred us in particular to

two decisions of the Calcutta High Court reported in Chandi Charan Mitter, a Pleader,

In re (1), and Emperor v. satish Chandra Singha (2).

We do not consider that the case before us furnishes an occasion for any exhaustive

review of the decisions upon the subject or formulating finally the principles which

govern the exercise of the discretion by a Court to which a complaint is made under s. 10

of the Bar Councils Act whether it should

(1) (1920) I.L.R.47 Cal. 1115. C2) (1927) I.L.R. 54 Cal,

721.

11

proceed under it or leave the complainant to launch a prosecution against the advocate

and await the result of such criminal proceedings.

We consider it sufficient to state this. The object of a proceeding in respect of

professional misconduct differs totally from the object of a proceeding in a criminal

court. Proceedings under the Bar Councils Act and similar statutes arc taken in order

to.ensure that the highest standards of professional conduct arc maintained at the bar.

These proceedings, though in a sense penal, arc solely designed for the purpose of

maintaining discipline and to ensure that a person does not continue in practice who by

his conduct has shown that he is unfit so to do. It is not a jurisdiction which is exercised

in aid of the Criminal law for the only question for the court to consider is whether the

practitioner has so misconducted himself as no longer to be permitted to continue a

member of an honourable and responsible profession. The object of Criminal

proceedings, on the other hand, is to enforce the law of the land and to secure the

punishment of an offender. No doubt, if a criminal prosecution is initiated in respect of

the subject matter of the complaint and the charge is held proved the conviction might

be a ground for a later proceeding under the Bar Councils Act. No doubt, also, if the

practitioner is acquitted or discharged by a criminal court on the merits, the facts would

not be reinvestigated for the purpose of rounding a charge of professional misconduct

on those very facts. The object of the two proceedings being thus different, it is not any

rule of law but merely a matter .of discretion depending on the facts of each case as to

whether the Court would straightaway proceed to enquire into the allegation of

professional misconduct or leave it to the complainant to prosecute the practitioner and

await the result of such a proceeding. It was not suggested by Counsel for the appellant

that it was incompetent for or 12

beyond the jurisdiction of the Court, 'to proceed with an enquiry in a case where the

misconduct charged against the advocate or practitioner amounted to an offence under

the ordinary criminal law. Neither of the cases relied on lay down any such proposition

and is not of much assistance to the appellant in the present case. It is sufficient to

extract the head-note to the report of the decision in Chandi Charan Mitter (x), indicate

that it bears no analogy to the case now on hand. The relevant portion of the head- note

reads:

"Where the misconduct alleged has no direct connection with the conduct of the pleader

in his practical and immediate relation to the court, ordinarily, there should be a trial

and conviction for criminal misconduct before disbarment will be Ordered."

The charge against the practitioner in that case related to a matter which had nothing to

do with his relationship to his clients, or the court, and in the circumstances it was held

that the direction would be properly exercised if the initiation of professional

misconduct proceedings awaited the result of the prosecution. It is obvious that the case

before us is far different. Emperor v. Satish Chandra Singha (2), was also a similar case.

The charge against the practitioner was of forging court records by interpolating some

words in an original plaint. In the case now before us, however, the misconduct charged

is intimately connected with and arises out of the duty which the Advocate owed to

client. This distinction between misconduct which is intimately connected with the

duties which the practitioner owes to his clients and cases where it is not so connected

as bearing upon the exercise of the Court's discretion to proceed or not to proceed

straightaway with an inquiry into the advocate's professional misconduct was

emphasised by Lord (1) (1920) I.L.R, 47 Cal, 1115, (2) (1927)I.L. R. 54 Cal, 721,

13

Abinger in stephans (1), which dealt with case of professional misconduct against an

attorney in England. The learned Judge said:

"If the attorney has been guilty of something indictable in itself but not arising out of the

cause (in which he is engaged professionally) the Court would not inquire into that with

a view to striking him off the roll but would leave the party aggrieved to his remedy by a

criminal prosecution."

There is thus a clear distinction between cases where the misconduct is one in relation

to the practitioner's duty to his client and other cases where it is not so. In the former

class of cases the court would be exercising its discretion properly if it proceeded to deal

with the charge as a piece of professional misconduct without driving the complainant

to seek his remedy in a Criminal Court. So far as the facts of the present case are

concerned the appellant got his client's money in his hands in the course of the

proceedings of a suit in which he was engaged and the charge against him was that he

failed to repay the money. In the circumstances we consider that the High Court was

fully justified in proceeding against the appellant under the provision of s. 10 of the Bar

Councils Act.

The next complaint of the learned Counsel was that there was a procedural irregularity

in the mode in which the case against the appellant was conducted. This was said to

consist in the fact that some evidence on behalf, of the complainants (the respondents

before us)was permitted to be led after the appellant had examined himself and it was

urged that thereby the complainants had been afforded opportunity of filling up any

lacuna in their case. We consider that there is no substance in this objection. No

complaint that the appellant was

14

prejudiced by the manner in which the inquiry was conducted in the matter of the order

in which the evidence was adduced, was made either before the District Judge who

conducted the inquiry or before the High Court when the report of the District Judge

was considered. We have ourselves examined the record and find that there is no basis

for any suggestion that any' prejudice had, occurred by reason of the order in which the

witnesses were examined. It was then suggested that one of the plaintiffs-Kagga

Veeraiah--had himself admitted in his evidence before the District Judge that he and

others had received the proceeds of the cheque which the appellant had cashed and that

in the face of this admission the learned Judges of the High Court were clearly wrong in

finding that the appellant had failed to pay over the money to his clients. A few facts

have to be mentioned to appreciate this contention as well as the answer to it. As stated

earlier, there were four plaintiffs in the suit--O.S. 432 of 1951 and plaintiffs. 1 to 3 are

the complainants--now respondents 1 to 3 before us. The fourth plaintiff was one Kagga

Veeraiah. It was the case of the appellant that this money , was paid to all the four

plaintiffs i.e., was paid to the plaintiffs when all the four of them were present. It was the

case of the complainants that Kagga Veeraiah--the 4th plaintiff died in 1957. It was m

these circumstances that the appellant alleged that Kagga Veeraiah was alive and a man

claiming to be Kagga Veeraiah was produced before the District Judge who examined

him as court witness No. 7. The man who was examined did depose that the money was

paid to the plaintiffs in his presence and, no doubt, if that statement along with the

identity of the deponent was accepted the appellant's defence would have been made

out. The case of the complainants, however, was that the man examined as court witness

No. 7 was an impersonator. To prove the; death of the

15

real Kagga Veeraiah an extract from the death certificate was produced in court by the

complainants. The attention of court witness No. 7 was drawn to the fact that in another

proceeding (0. S. 732 of 1955) to which Kagga Veeraiah was a party a memo was filed

into Court stating that he was dead. The witness's explanation for this was that as he was

not available the memo to that effect was filed. The witness was severely cross examined

about his identity and in particular, questioned about the details of the parties and other

details regarding the subject-matter of O.S. 432 of 1951 and his answers were most

unsatisfactory, to say the least. The Learned Judges of the High Court considered all this

evidence and recorded two alternative findings :(1) that the person examined as C.W. 7

was not Kagga Veeraiah but was an impersonator seemed to accord with the

probabilities, and (2) that even if C.W. 7 be in truth Kagga Veeraiah as he claimed, they

would not accept his evidence as there was not 'even a modicum of truth in his

deposition' and they would unhesitatingly reject it. The submission, however, of learned

Counsel was that there was before the High Court the thumb impression of this witness

to his deposition before the District Judge as C.W. 7 and the thumb impression of the

4th plaintiff in O.S. 432 of 1951 and that on a comparison of these two the court should

have accepted the identity of C.W. 7 as Kagga Veeraiah--the 4th plaintiff. It is really not

necessary to pursue this matter or the details of the evidence relating to it because there

is no ground at all for interfering with the appreciation by the learned Judges of the

High Court of the credibility of this witness's deposition apart altogether from the

question as to whether Kagga Veeraiah was dead and if he was not, whether C.W. 7 was

Kagga Veeraiah. The admissions that this witness made and the ignorance that he

displayed about the proceedings in the suit stamped him as a witness of untruth and the

learned Judges correctly characterised his evidence

16

as devoid of "even a modicum of truth." The appellant cannot therefore rely on any

admission on the part of this witness as evidence of the plaintiffs having received the

sum which was admittedly in his hands.

Lastly, it was urged that the order directing the suspension of the appellant for a period

of five years was too severe and that we should reduce the period of suspension even on

the basis that the charge against the appellant be held to be established. We can only

express surprise that Counsel should have made bold to make this submission. The

appellant had got into his hands a considerable sum of money belonging to his clients

and, on the finding of the High Court, had failed to, pay it back when demanded. Not

content with this he had put forward a false defence of payment and had even sought to

sustain his defence by suborning witnesses. In the circumstances, even, if the learned

Judges of the High Court had struck off the name of the appellant from the roll of

advocates we would have considered it a proper punishment having regard to the gravity

of the offence. The order now under appeal therefore errs, if at all, on the side of

leniency and there is no justification for the request made on behalf of the appellant.

The appeal fails and is dismissed.

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