O. N. MAHINDROO versus DISTT. JUDGE, DELHI &.ANR.

0. N. MAHINOR.00

DISTT. JUDGE, DELHI &.ANR.

September 4, 1970

[M .. HIDAYATULLAH, C.J., G. K. M!Ti\"ER AND A. N. RilY, J{J

Advocates Art -1961, ss.'44 and L0(3)-Rcvlew-Bal' Co1111cil ct11111ot rttvlr'~V '1ccz.s1un of Disciplinary Conimittee-Disciplinar.v Coounittee's-.PVWl!r of re-v1e11·-Grpunds for rt\•lew need not be sbnUar vr c.·nalogous lo t/u;ie found in s. 'l 14 or 0.47 R. I of Code. of CMI Prucedure-l'tinciples of antre .. fois cop.vict1 or antre 'fois acquit also not applicahle ·-:--Review petition 11111st ·b'e1 dealt'. with objectively-Revie\I/ by Supreme Court, considerations fqr-Appeal to Sttprenie Court under s. 38 Advoc!ltes Act, Scope of-Pr.ofe'ssional. n1isco11ducr~Proof" of. f.

The appellant \Vas an, advocate of this Court. complaint y.•as made by !he District Judge Delhi against him on 29th February, 1964 to the Bar Council of the State of Delhi alleging that he had mutilated UOcu-ment, by tearing two pieces:from it while examining judicial record in the·'couf.t.i.room in the presehce of the junior clerk. The Bar Council of the State of Delhi referred the matte1 to its Disc:iplinary Committee. The. cxpl~n~tiop of the appellant before the Disciplinary Committ~e was th1t the charge had Deen falsely made against him bec'lusc of the hostility of the Judges and the staff of the DistriCr Cpurt, bclhi. He denied that. the docun1ent w:\s important or that he mutilated it. He hsked for -~'iummoning the torn rloc~1n;ient and the pieces but only the document was received. ·According r.:> the Dist'rict Judge the pieces were misplaced and could n,at be found. The Disciplinary Committee held the app:lla11t guilty of having J11Ulila ted ,.the document on the basis 9f it he oral evidence 9f the junior derk .. The appellant. thereupon, appeal~d to the Bar Council of India but the Disciplinary Committee of the Bar Council of India dis· .mi!~ed the appeal. His appeal to this Co1J.rl under s. 38 of the Advocates Act was also dismissea at the preliminary' hearing. The appellant filed reyiew petition befprc the· 'G>isciplina'ry Committee of. the Bar Council of India' hut it was rcjecteu. The •RPellant· then flle9'. writ petition in the High Court of Punjab (Delhi Bench) challenging·'· 38 of ihe Advo-cutc.s Act and r. 7 and Or. S of tlie rules of 'this Court as ultra vires Art. 138('.?J of the Constitutibn. The writ petition was admitted and u rule nlsi wns issued. Meanwhile -this .Court in dealing Witl-i r1Jview petition filed tiy the •!l'pellant had .issued notice to· the District Judge tu find out the tornipieces. The' District Judge reported that the muti· .1 lntcd document was copy of the lawyer's notice and that onlv small piec:c of half .nch was missing from !h~ .bottom of the second page, The picct-s were not traceable. l-Je allo reported. that the junior clerk was not surC' that any. thing was written on the torn pieces but accordin~ to his :recollection the words ··tru~ copy' followed by the signature 'Vir Bhan' ·1.vcrc' written. This Cburt dismiss:::dt the review petition on· September, :!6~ I 966. The writ' petition in the High Court was also dismissed by 3 single Judge on October 12 1966. In the proceedings it app~ared t~at the docurn,ent in question ha('!· not been relied upon by the p:.irtv wti.1ch had fileti 11. letters patent appeal was filed against Singl.e Jud~e·s .iudg-nlcnt and order. Before the Division Bench the validity of s. 38 of the Advocates Act alcine was cballenged~-The Divisioh Bench dismissed the :.ppcal hut ;granted cer'tificate'~ The appeal filed in this Court as

result was dismissed by the Constitution Bench on January 8, 1968. The lprcllant then tried fresh reviev.,, petition on the basis of fresh evidence tnd report of the Dislrict Judge. On the court observing that on the basis of ne\v m.nerial review should be asked for fron1 the Bar Council of Jndia, the appellant withdrew the rcvic\\' petition which ,1,.·as not dis-missed on merits. 'fhe appellant then \\.'t:nt before the Bar Council ask-ing for reconsideration of the case under ss. 44 and 10(3) of the Advo-cates Act. 1961. The Bar Council of India held that it had no jurisdic-tion to reopen the matter but reco,mmended that the Disciplinary Com-nuttee may be approached. The appellant then applied for review of the order by the Disciplinary Committee of the Bar Council of India. The Disciplinary Committee declined to open the case. They held that the order had merged in the decision of the Supreme Court and review granted by them would be incompetent because review could be consi-dered only on grounds similar or analogous to those given in s. 114 and Or. 47 R. 1 of the Code of Civil Procedure. From the respective orders of the Bar Council of India and the Disciplinary Committee. the present ai!)peals. were brought. The questions that fell for consideration were : (i) Whether tho Bar Council had no jurisdiction to direct the Disciplinary Committee to rehear the matter; (ii) Whether the Disciplinary Committee was right in not considering the matter afresh; and (iii) Whether the Disciplinary Committee was right in refusing review, and if not, whether this Court should review the matter for itsel'f. At the hearing the .Bar Council of India and the Supreme Court Bar Association were represented and supported the case of the appellant.

HELD : (i) The Bar Council acted correctly when they refused to review the matter themselves. To do so would be an exercise of appellate power I which the Bar Council did not possess. The Bar Council was further right in saying that the question raised before them was suffi-ciently important for reconsideration and recommending it for reconsidera-tion by the Disciplinary Committee. [20 G-HJ

(ii) In all cases tried by the Disciplinary Committee of the Bar Council of State (including Union territory of Delhi) an appeal lies to the Bar Council of India. The appeal is however heard by the Disciplinary Com-mittee of the Bar Council of Jnd.ia and they dispose. of it as they deem fit. The Act does not say that the Disciplinary Committee is reporting body and the executive orders must be made by the Bar Council of· India. It is against the order of the Disci?linary Committee that an appeal lies under s. 38 to this Court. [21 A-CJ

(iii) But in the initiation of proceedings and again in the matter of appeal the Bar Council is mentioned and not the Disciplinary Committee. Indeed under ss. 35 (1) and 36(1) the Bar Council of the State or of \India as 'the case may be, must be satisfied that prima facie case exist before they will refer the matter to their Disciplinary Committee. The provisions of ss. 6 & 7 of the Act also show that the general superintend-ence ·of ethics and etiquette of the profession and questions of misconduct of the members are not wholly outside the ken of the Bar C0uncils of the State or .of India and are always within their respective jurisdictions. Under s. 38 this Court has jurisdiction to pass in appeals any order it deems fit. Therefore the appropriate Bar Council or this Court do not act Wrongly -if they entertain subsequent petitions from person whose case has been dealt with by disciplinary committee. [21 C-G]

(iv) The power of review is expressly granted to the Disciplil!'ary Com-mittee of the Bar Council which may on its own motion or otherwise review any order passed by it. The Word 'otherwise' is wide enough to cover the case referred by the Bar Council for review. [21 HJ

(v) The powers of review are not circumscribed by the Act. The analogy of the Civil Procedure Code must not be carried too far. Such powers may be exercised in suitable case. for oi against an advocate even after the matter has gone through the disciplinary committee at some stage or even through this Court. These matters are also not governed 'by the analogy of aut.re fois convict or auterfois acquit in t.he Code of Criminal Procedure. Di$ciplinary proceedings against lawyer not only involve particular lawyer but the entire profession. The repu-tation of the legal profession .is the sum total of the reputation of the practitioners. The honour of the lawyer and the purity of the profession· are the primary considerations and they are intermixed . .[22 B-Cl

(vi) This Court on earlier occasions, taking the facts from the orde{ of the disciplinary committees declined to interfere as no question of law was involved. It decided the appeal summarily without issuing notice .or sending for the record. There is force in the contention that an advocate is entitled to full appeal on facts and law under s. 38 of the Advocates Act. Since the disciplinary jurisdiction of the High Court has been taken away right of appeal to this Court has been substituted. This Court must in all cases go into, the matter to satisfy itself that justice has been done by tho disciplinary committee or committees. [26 G]

(vii) All processes of the court are intended to secure justice and one such process is the power of review. No doubt frivoious reviews are to be discouraged and technical rules have been devised to.prevent persons from reopening decided cases. But there should not be too much techni-cality where professional honour is involved and if. there is manifest wrong done it is never too late to undo the wrong. · This Court possesses under the Constitution special power uf review and further may pass any order to do full and effective justice. (27 Bl

(viii) In the present case the Disciplinary Committee of the Bar Council of India did not re-examine the matter objectively but with . the intention of re-affirming their decisions. No attempt was made to find whether the circumstances were such that the appellant could be said to have pro•ed satisfactorily the contrary of what was held or had created sufficient doubt in the matter. (25 G]

(ix) The document said to be mutilated by the appellant was not needed for the case; it was only carbon copy and not original. No· part of the typed portion was damaged except very slightly. The tear. in two places was equal to third of small postage stamp. There was most p\"obably no writing as ·there was hardly any space available. No steps were taken to match the alleged pieces with the tears, and the pi~ces had not been preserved. There was only the word of the junior clerk against that of the appellant. There was background of hostility which the appeliant had created by his aggressive action in other cases. It was difficult to believe that the mutilation, without any rhyme or reason, was done with sinister motive. This view was supported by the repre-sentatives of the Bar Council and the Bar Association of Supreme Court. (27 D-FJ(x) It was not necessary to consider the law applicab!e to reviews in in such matters. The matter \1,:as one of the ethics of profession which the law has entrusted to the Bar Council of India. Their opinion of the cast' must receive due weight. The Bar Council agreed that the decision aga"inst the appellant was unsustainable. There was no reason to differ from them. Accordingly in the present case review must be granted and the order disl>arring the appellant from practice which had been passeJ against him must be set aside. r27 G·H]

CIVIL APPELLATE JURISDICTION:

Civil Appeals Nos. 2637

and 2638 of 1969.

Appeals by special leave from the order dated July 12, 1969 of the Bar Council of India, New Delhi in PetitiOill dated January 17, 1969 at item No. 42 of 1969 and from the order dated O~tober 4, 1969 o'. the Disciplinary Committee of the Bar Council of India in Review Petition No. 2 of 1969 respectively.

C. K. Daphtary, A. N. Mulla, Bishan Narain, W. S. Ba1/i11gav

and 0. N. Mohindroo, for the appellant (in both the ·appeals). ·

M. Natesan, Uma Mehta, D. N. Misra and B. P. Singli, for respondent No. 2 (in C.A. No. ?.637 of 1969).

A, S. R. Chari and B. Datta, for the intervener (in both the

appeals).

The Judgment of the Court was delivered by

Hida\'atullah, C.J.-The appellant in these two appeals is an advocate· of this Court, who on complaint by the District Judge, Delhi, 29 February, 1964, to the Bar Council of the State, of Delhi, was held guilty of professional misconduct and suspended from practice for year by the disciplinary committee of the said Bar Council. He appealed to the disciplinary committee of the Bar Council of India under s .. 37 of the Advocates Act. The appeal was dismissed. His appeal to this Court under s. 38 of the Act was dismissed summarily at the preliminary hearing. The charge against him was that while inspecting judicial record in the company of Mr. Kuldip Singh Advocate, he tore out 2 pieces of paper from an Exhibit (C-1). The pieces were thrown by him on the ground. The clerk in-charge reported the incident to the District Judge and the complaint followed.

The suit, record of which was being inspected, aros.e i.n th~ following circumstances•. On February 6, 1963 Mr. Anant Ram Whig, an advocate, sent notice on behalf of one Sarin to certain Ramlal Hans and his wife claiming sum of Rs. 4,3701-as reward for the success of their daughter at an examination in-cluding tuition fees. Sarin was preparing the girl for the B.A. examination. The claim of Sarin was repudiated by Ramlal Hans in reply dated Februarv 11. 1963. The matter was referred to the arbitration of Mr. Mansaram. Municipal Councillor. Delhi by an agreement dated February 24, 1963. The arbitrator gave an award for Rs. 1,000[1]- in favour of Sarin. The award wa:, filed in :he Court of Mr. Brijmohanlal Aggarwal. Sub-Judge. Delhi for being made rule of the court. Ramlal Hans engaged

the appellant as advocate. The appellant In his turn engaged two other advocates to conduct the actual cases and also filed his vaka/atnama. copy of the notice sent by Mr. Whig was filed in the case (Ex. C-1) but was not yet proved. On February 24, 1963 the appellant went for the inspection. of the record of the case in the company of his junior lawyer. The file was given by Amrik Singh, the junior clerk of the Bench. Amrik Singh then went out of the room but soon return-ed to his seat. Later he charged the appellant of having torn 2 pieces from the document (which was Ex. C-l) and picked_ up the alleged pieces from the floor. Mr. Aggarwal then arnved on the scene. The statement of the appellant was recorded. The Sub-Judge also obtained reports from his junior and Assistant clerk; and made report. With the report he sent the Exhibit said to be mutilated and the two pieces said to be the torn pieces of Ex. C-1 in sealed envelope. complaint was also made to the District Judge by Sarin. The District Judge then made report and wrote that the document was important iJl, the case and action was, therefore, called for.

The disciplinary committee of the Bar Council of the Uniotl Territory of Delhi took up the matter under ~. 35 of the Advo-cates Act. The explanation of the advocate was called for. He explained that the charge was false and it was due to the ill-will of Mr. Aggarwal and his staff because earlier he had made some serious allegations against Mr. Katra, Sub-Judge III Class in transfer petition and had also started contempt proceedings. Ac-cording to the appellant this led to hostility between the judges and their staff and him. He denied that the document was im-important or that he had mutilated it. He asked inter alia for summoning the torn document and the pieces and they were sum-F monyd. The original document was received but not the pieces. The District Judge informed the Committee that the pieces were misplaced and were not found. The appellant maintained that they were put in the same envelope with the exhibit and he alleged that they were suppressed to deny him legitimate defence that they were not part of the same document. Oral evidence was recorded. On the basis of the oral evi-dence of Amrik Singh. the petitioner was held guilty of having wantonly mut;Jated the document. The petitioner wanted to take size to size photostat o.f the exhibit but his request was turned down.

As stated already his appeal to the Bar Council of India was dismissed by the disciplinary Committee of the Bar Council of India and later his appeal to this Court was dismissed summarily

on April 18, 1966 at the preliminary hearing. Mr. A. K. Sen appeared for the appellant.

The appellant then seems to have lost his head. He made successive applfoations of various kinds. He filed review peti-tion on April 23, 1966 before the disciplinary Committee of the Bar Cou.ncil of India but it was rejected on April 29, 1966. The appellant then filed writ petition in the High Court of Punjab (Delhi Bench) on May 23, 1966 challenging s. 38 of the Advo-cates Act and Rule 7 of Order V of the Rules of this Court as ultra vires Art. 138(2) of the Constitution. The Writ Petition was admitted and rule nisi was issued. The appellant before this had filed review petition in this Court and on September 12, 1966 this Court issµed notice to the District Judge to find out the torn pieces. The District Judge reported on September 22,, 1966 that the mutilated document was copy of lawyer's nqt1ce and that only small piece of t" was missing from the bottom of the second sheet. The pieces were not traceable. He . als~ reported that the junior clerk was not sure that anything was wntten on the torn pieces but according to his recollection the words 'True copy' followed by the signature 'Vir Bhan' were writ-ten, that this was not stated by him in his earlier statements and th.at the Ass.istant Clerk also said that according to his re'. collection som7thmg was written in ink on those pieces but could not. ~ay what 1t was. The Supreme Court dismissed the review peutmn on September 26, 1966. The appellant appeared in person at the hearing.

The writ petition in the High Court was also dismissed by single Judge on October 12, 1 ?66. The order sh?ws that the original of Ex. C-1 was not rehed upon by Mr. V1r Bhan and that he had not attempted to prove the copy, as there was .no context about the notice. It was contended before the High Court that there was no motive to t~ar two tiny pieces from document which was not in issue. The High Court seemed to agree with this but speculating .as t? possible motiv~s held that. in view o( the evidence of Amrik Singh, the question of motive was immaterial. The High Court did not go further than this into facts.

The learned single Judge considered the objection to the con-stitutionality of the rules of this Court and overruled it. He held that questions of fact could not be gone into in view of the suc-cessive appeals and review petitions dismissed by t~e appro~ate authorities. Letters Patent Appeal was filed agamst the smgle Judge's judgment and order. That appeal was heard by Divi-sion Bench of the High Court of Delhi and dismissed on Decem-ber 22, 1966. Before the Division Bench the validity of s. 38

of the Advocates Act alone was challenged. An objection on merits was rejected because the order of the discipli,nary co~­mittee of the Bar Council of the Union Territory was said to have merged in the order of the disciplmary committee of the Bar Council o.f India and later in that of this Court. The High Court granted certificate. This Court was represented at the hearings as it was made party to the writ petition. The appeal filed in this Court as result (C.A. No. 240 of 1967) was dismissed by the Constitution Bench on J~nuary 8, 1968. Only the validity oi s. 38 of the Advocates Act and rules. of this Court was considered. The hearing was on 14 and 15 December 1967. The appellant was 'in person. The Bar Coun-cil of Delhi and their disciplinary committee were represented by Mr. Avadh Behari Advocate, Mr. P. Rama Reddy and Mr. A. V. Rangam represented the disciplinary committee of the Bar Council of India, the Supreme Court (a party) was represented by Mr. Purshottam Tricumdas and Mr. I. N. Shroff and the At-tomely General was represented by Mr. P. Tricumdas and Mr. S. P. Nayyar. The hearing time was taken up by the appellant and Mr. Purshottam Tricumdas, Mr. P. Rama Reddy argued for 10 minutes and Mr. vad Behari was not called upon.

The appellant the.n tried another review petition (No. 21 of 1968) on the basis of the fresh evidence and report of the District Judge Delhi. This Court (on December 2, 1968) summoned the record and allowed the petitioner to take photostats of the Ex.C-1. The appellant also filed writ petition under Art. 32 o~ the Constitution (W.P. No. 69 of 1968). He first applied (C.M.P. 1171/68) for withdrawal of the writ petition and then withdrew that application itself. . The two matters were placed' before the Court on April 1 I, 1968 and at one time it appeared that Shri A. K. Sen had argued both of them but later Shri A. K. Sen said he had only appeared in the writ p'lltition and not in the review petition and it was still undlsposed of. As result on Au2ust 12. 1968. the review petition was ordered to be placed again for hearing. On the Court observing that on the basis of new material, review should be asked for from the Bar Councif p.f India. the review petition was withdrawn on January 6, I 969. The review application was not dismissed on merits.

The appellant then went before the Bar Council asking for reconsideration of his case under ss. 44 and 10 ( 3) of the Advo-cates Act. The Bar Council passed an order through i!s Chair-man I Mr. H. D. Shrivastava). The Bar Council of India held that it had no jurisdiction of any kind to reopen this matter al-H though the embarrassment involved in reconsidering the matter ..yas removed bv the observations of the Supreme Court. Accord-ing to the Bar Council the disciplinary committee was not acting

as subordina.te delegate of the Council and the general power to safeguard the mterests of the Bar or any individual memb~r could only re.fer to such interests as had not been negatived by judicial process under the Advocates Act. The petition was, therefore, d1sm1ssed. The Bar Council, however, went on to observe :

" ...... But we cannot part with this matte[ with-

out expressing our sense of uneasiness which arises from the production before us of fresh material particularly photostat of ti)e document said to have been torn by the petitioner. look at the document opens out reasonable possibility, that reconsideration by the dis-ciplinary committee of this Council may lead to dif-ferent result. The petitioner may i·f so advised fonnally ,ask for review by the Disciplinary Committee."

. The appellant then again applied for review of the order by ttt.e disciplinary committee of the Bar Council of India. In fairly long order the disciplinary committee declined to reopen the case. The disciplinary committee found fault with the single Judge of. the High Court of Punjab for not rejecting the writ peti-tion on the short ground that the High Court could not issue writ to the Supreme Court. The disciplinary committee also found it necessary to comment upon the order of tilis Court inquiring from the District Judge, Delhi how the pieces kept in safe custody were lost. The disciplinary committee also commented upon the action of the District Judge in re-examining witnesses who had been examined before.

The Di;ciplinary committee pointed out that in the second review petition decided by the Committee on February 26, 1967, it refused to take into consideration the report of the District Judge us it wus not evidence in the case 3nd because the Supreme Court also did not appear to have acted upon it when dismissing the review petition be.fore it The Supreme Court's order was not speakin~ order but had merely dismissed the review petition summarily.

The disciplinary committee next consideard how the matter came before them. Thev refused to take into account 'casual observation' of the Judge~ in the course of arguments befo;·e them in the review petition in this Court. They speculated that par-haps the appellant was advised to withdraw the review petition which otherwise would have had to be dismissed. The Com-mittee very reluctantly looked into the slatements of witnesses recorded by the District Judge when he reported about the loss of eht two pieces of paper. The matter was heard and the dis-ciplinary committee took time to consider their order. The disci-01 SUOI)B:J!fddu ..... ~.TMJ \lur.r~p!SUO:J UT lBljl Pl~IJ ~~l)i!UUIO:J ,\rnmtd

themselves, they should not be over-technical and that they would have granted review if there was any material on which it could · be granted. They, however, observed :

.... , ... It is however axiomatic that no Court or Tribunal can rewrite or alter its Judgment once J udg-B ment has been signed and delivered. We could enter-tain the review petition only on some ground similar or analogous to those as mentioned in Section 11<1 and Order 4 7 Rule I of the Code ot Civil Procedure. But in this case there is no such i:round available to the petitioner."

They held that as the order of the disciplinary committee iiad mer-ged in the decision of the Supreme Court, review granted by them would be incompetent. HavingJ held this two members went Q.n to consider the merits, procedure with whic:h the third member dissented. His observations in the circumstances were quite correct. This is what he said :

"If what the petitioner says about the observations of the Supreme Court that his remedy should be by Petition for review, 1s correct, the forum lies else-where and we cannot just entertain it. In this view of the matter the observations made by the Bar Council of India in their resolution dated 12th July, 1969, which are entitled to our respect, may we!! be le.ft alone mad (sic) need be commented upon."

The majority of the disciplinary committee however refused to be guided by the observations of the Bar Council of India. They observed that looking at the photostat copy did not advance the m~tter any further and they had previously seen the original it-self and on the evidence they were satisfied that there was some writing on th pieces to show that it was true copy signed by the attestor. This was proved by the evidence of Mr. Vir Bhan accepted by the disciplinary committees of the two Bar Councils. They discarded the fresh evidence of the two clerks as not of any use to the appellant. They went to the length of saying : ·

"Even if these witnesses had entirely contradicted their earlier statements that would not have been ground for review .... ".

Having said this they went on to say :

" ..... However in the present case we have also examined the depositions recorded by Shri J agjit Singh and we do not find any substantial difference between

what they had stated earlier and what they stated before

him."

The fact that writing on the pieces was not mentioned earlier by the clerks was not noticed. The majority then severely com-mented upon the conduct of the appellant in charging the sub-ordinate judiciary with hostility ·and he!d this to be 'frivolous and unw01 thy of notice.' They observed as follows : '"Even in our earlier Judgment we pointed out that defence of this nature calculated to deter and intimi-date reponsible officers from discharging their public duty was highly reprehensible."

They accordingly dismissed the review application expressing the hope that that would be close to thi·s chapter. In two para-graphs thereafter the majority commented strqngly on other con-duct of the appellant in court cases and outside it which 11ccurd-ing to them was deplorable. It is obvious· that the disciplinary committee was annoyed at the repeated attempts of the appellant to have his case reconsidered by the superior authorities and the hearing he had got. ·

From the respective orders of the Bar Council of India and the disciplinary Committee, these two appeals are brought. We granted special leave in the matter arisi,ng out of the Bar Coun-cil's order limited to the following two questions : " ( I ) Whether the Bar Council has no jurisdiction to direct the Disciplinary Committee to rehear the mat-ter; and

( 2) Whether the Disciplinary Committee was right

in not considering the matter afresh."

In the other appeal the question is.: whether the disciplinary committee was r:ght in refusing review and whether we should, therefore, review the matter ourselves, if we are satisfied that the case deserves it.

whether the disciplinary

In so far as the jurisdiction of the Bar Council of India is concerned we think the Bar Council acted correctly when they refused to review the matter themselves. For the Bar Council to do so would be an exercise of appellate power. That power the Bar Council of India does not possess. But the Bar Council cf India was right in saying that the question raised before them-selves was sufficientlv important for reconsideration and recom· '!lending it for reconsideration to their Disciplinary Committee.

For the Bar Council That power But the Bar Council

· U!e in t~ matters of appeals and review.

U!e provisions of the Advocates Act are no doubt precise

In all cases tried by the

Disciplinary Committee of the Bar Council of State (which term 1nclu<les the Union Territory of De1hi) an appeal lies to the Bar Council of Jnd1a. The appeal is, however, heard by the Discipiinary Committee of the Bar Council of India and they dispose of il as they deem fit. The Act does not say that the Discipl.inary Committee is reporting body :ind the executable order must be made by the Bar Council of lndia. This is made clear by ~he section that follows. lt speaks of an appeal to this Court against the order of the Disciplinary Committee. It an order of the Bar Council were intended to be interposed (whet-her endorsing or refusing to endorse the order of the Disciplinary Committee) one would expect the appeal to this Court to lie against the order of the Bar Council. But in the initiation of the proceedings and again in the matter of appeal, the Bar Coun-cil is mentioned and not the disciplinary Committee. Indeed un-der ss. 35 (I) and 36 (1) the Bar Council of the State or of India, as the case may b~, must be satisfied that prima facie case exists before they will refer the matter to their Disciplinary Com-mittee. This is in keeping with the jurisdiction of the Bar Coun-D cils of the States laid down bys. 6(1)(c) under which Bar Coun-cil is to entertain and determine cases of misconduct against ad-vocates on its rolls and under cl. ( d) with the duty to safeguard the rights and privileges and interests of advocates on its rolls, In regard to the Bar Council of India the same position obtains under s. 7(1 )( d) (which is ipsissima verba with the correspond-E ing provisions of s. 6) read with s. 7 (1) which lays down the jurisdiction of the Bar Council of India to deal with and dispose of any matter arising under the Act. Therefore the general superintendence of ethics and etiquette of the profession and ques-tions of misconduct of the members are not wholly outside the ken of the Bar Councils of the State or of India and are always within their respective jurisdictions.

Next, the appeal to this Court is not restricted appeal. It is not an appeal on law alone but also on fact. Indeed s. 38 gives the Supreme Court jurisdiction to pass in such appeals any orders it deems fit. Therefore the appropriate Bar Council or this Court do not act wrongly if they entertain subsequent peti-tions from person whose case has been dealt with by discipli-nary committee.

The power of review is expressly granted to the Disciplinary Committee of the Bar Council which may on its. own motion or otherwise review any order passed by it. The word othenvise is wide enough to cover case referred by the Bar Council for re-view. There is r. proviso wilich makes the 'Bar Council of India the final judge because no order of disciplinary committee of

State Bar Council on review has effect unless it is approved· by· the Bar Coimci/ of India.

The powers of review are not circumscribed bl' the Act. The analogy of the Civil Procedure Code must nQt be carried too fill'· Such powers may be exercised in suitable case for or against an advocate even after the matter has gone through the" hands of the Disciplinary Committee at some stage or even through this Court. These matters are also not governed by the analogy of autre fois convict or autrefois acquit in the Code of Criminal Pro-cedure. Disciplinary proceedings against lawyer involve not only the particular lawyer but thr. entire profession. The repu-tation of the legal profession is the sum total of the reputation oi the practitioners. The honour of the lawyer and the purity ::>f thee profession are the primary considerations and they are intennixed. Duri'lg the hearing we gave an illustration which we i;nay also give here. Suppose an advccate is charged with embezzling the money of his client. The advocate plear;ls that he paid the money in cash to the client and obtained his receipt but the receipt is misplaced and he cannot find it. He is disbelieved by the Disciplinary Committees and even by this Court. Subs<:-quently he finds the receipt and wishes to clear his good name. The matter can be gone into again on the fresh material. It is not only hfs right but also the duty of the those including this,,. Court to reconsider tlie rr,atter. The Bar Council in any event can restart the matter to clear him whether before any of the authorities which dealt with the matter before. The facts in the illustration may be reversed to see the converse position where an advocate gets off on false plea cf not having received the money at all; if he can be successfully confro,nted with his own receipt which the client had misplaced and could not lay hands upon in the first instance.

From this it follows that questions of professional conduct are as open as charges of cowardice against Generals or reconsidera-tion of the conviction of person convicted of crimes. Otherwise how could the Hebron brothers get their conviction set aside after Charles Peace confessed to the crime for which they were charged and held guilty ? .

The fact of the matter in this case is that too much emphasis was laid on the oral evidence of clerk who alone said that he had seen the appellant tear two pieces from Ex. C.I. The Advo-cate's denial was not accepted althoug.h there was word against word. There was on evidence that the vieces found on the floor matched the tear. No witness spoke of having taken the ~lemen­tary care of matching the pieces with Ex. C-1. Indeed the pieces

having been lost the only corroboration re;garding the pieces has disappeared. The only corroboration now is that the edges of Ex. C-1 show such tear.

The question is whether this by itself is sufficient. There is no evidence against the appellant except that of Amrik Singh. It is true that tli.ere is no personal allegatiOl!I against him of harbour-ing any grudge or hostility beyond saying that the stat! of the Courts were against the appellant. As against this, one consi-deration is what was the gain to the appellant by tearing the tiny pieces ? 'We Shall presently show how tiny they were. The charge is serious one; and we have to see the matter in the whole setting of the evidence. The document said to be torn is copy of notice which Sarin's Counsel hae sent to the opposite. side. The counsel for Sarin said that he had not proved the do-cument. Further the original notice could be summoned. Exhi-bit C-I was in two sheets 30.5 cm. x 20.5 cm. and 34.6 cm. x 21.5 cm. The second sheet was extraordinarily long and its edges appear very much frayed. It was suggested at the hearing it must have protruded from the rest of the file and thus i;ot damaged in the handling of the file. This was not given due weight.

We have examined the document carefully. It is carbon copy of notice. The document ends thus : Nott : Copy of this notice is being sent under postal certifi · cate to your wife. Yours faithfully, The tear occurs 1.5 cm. to the left of 'ficate' and ends below the letter 'A' in 'postal'. The letters of 'faithfully' are missing except for the head of 'f' and so also letters 'der' in 'under' and parts of 'p' and 'o' in 'postal' are missing. The complainant claimed that the document had an attestation 'true copy' followed by signature and .that it had been torn out. The two clerks who had seen the pieces do not definitely say that the pieces had any writing and as the pieces have disappeared we cannot g~t corro-boration. They had originally not said this but now at later stage they have deposed about the writing on the pieces. We have therefore. done the best to discover the truth. This is the result of our observations :

The document is rectangular foolscap sheet, rather old paper which is frayed along the edges. As the fraying edges were falling off we have secureJ them with transparent scotch tape. One piece actually fell off when the papers was being exa-mined by us but the piece has been secured in situ with scotch tape. Another piece found in the file could not be matched

.and has been secured in the margin with scotch tape so that it may not be lost It belongs to the same paper. Now for des-cription of the paper.

Fortunately the machine cut edges are available on all four .sides enabling us to measure the paper and to find out the exact measurements of missing parts. This will enable us· to find out if an attestation and signature could have been written at all on these papers. It is obvious that the tearing if deliberate, as is suggested, must have been to tear out not the blank space left .on the bottom oi the typewritten portion but of some writing, . typed ar manuscript. The paper is exactly 34.6 cm. x 21.5 cm. As no portion is .alleged to be torn from the top or the sides we may ignore the measurement of the breadth except to ·compare it with the tear. The tear today is found along 17.5 cm. out of the total breadth of 21.5 cm. We have already said that except for 1.5 cm. to the left of the letters 'ficate' the tear falls directly below the 1yped portion and that is 15.5 cm. in length. 7.5 cm. are below the portion where the last line of typing 'ficate' to your wife' and the words 'yours faithfully' occur. The bottom of these typed letters are exactly 34.4 cm. from the top leaving strip ·which would be .2 cm. In other words out of tear of 17.5 ·cm., 8 cm. allow only space of .2 cm. for any writing. Now for the remaining 8 cm. This is made up of 2.5 cm. below 'ta! ce~ti' which is almost whole and there is no writing on this portion. That leaves tear of 5.5 cm. measures lengthwise where there is no typing on top. This is m'adc up of 3 traingu· Jar portions joined by the .2 cm. strips below typed po1tions. ht triangle is 2 cm. i,n length with I cm. pcrpcndicul~r from apex lo base. The second is 3.2 cm. base with perpendicular of 1 cm. and the third is 2.8 cm, by 1 cm, Therefore out of the total length of 17.S cm., 7.5 cm. is strip uniformly of .2 cm. There are 3 triangles, in length res· pectively 2 cm.. 3, 2 cm. and 2. 8 cm. with the height aim est at the centre in each case I cm. The photostat of the document is an annexe and can· be seen also. We took the measurements from the original. It is easy to see how small will be space for writing. The three triangles of which only 2 could be held to be torn by the appellant could not have contained the words of attestation and signatures. The one of the extreme left is so situated that no one would write there an attestation. The three trian~les are separated by 4 cm. and 3.5 cm and it is impossible to think that the attestation was written in one triangle and the signature in another for there was not enough space to write them

one above the other even if one could cramp in one line. Fur-ther with the typing having gone to .2 cm. from the bottom any-one wishing to write an attestation would ordinarily write it in the margi,n where pienty of space was available and that is the usual course lawyers adopt when the writing goes right down to the bottom. We are, therefore, satisfied that there was no wri-ting on the pieces and the halting testimony of the 2 clerks should not have been accepted without corroboration. They said noth-ing about it when they were first examined.The sum total of our observations may now be stated. The document was merely copy of which the original could be sum-moned. One sheyt was unduly long and was likely to protrude from the file of papers and thus liable to get frayed. It is frayed and the paper is showing more tears today. The typing had gone to the very bottom of the paper and there w~ not &uflicient space to write in natural hand the attestation and W 3ign it. There was blank paper in the margin where the attestation could be conveniently written and signed. The document was not ne-cessary for the decision of the case and Mr. Vir Bhan had not even attempted to prove it. It was being inspected to find out the original case of the claimant after the case had gone to arbi-tration and there \\'!Is an award. Nothing was to be gained by tearing it or even by tearing out the attestation even if there was one. Of course it would be improper ev~ to to tear out the blank portion but no one indulges in such silly and useless act. There was serious allegation against judge of the court and there was possibility of the appellant being the target of hostility and the ev:dence against him was of single cleric. There was word against word.

The question that arises is what ·are we to do. We have held r above that the disciplinary committee could be asked to reconsi· der the m·atter by the Bar Council. The order of the discipli· nary committee does show that although they held that the Bar Council had acted without jurisdiction, they went on to express their satisfaction with what t)ley had already done. The reexamination was not made objectively but with the intention ol, reaffirning their decision by every argument for it. No attemot was made to find whether the circumstances were such that the appellant could be said to have proved satisfactorily the contrary of what was held or had created sufficient doubt in the matter. The earlier findings w~re affirmed when there was no need to do so as the petition fof\ review was held incompetent. At the hearing before us the Bar Council of India apoeared and supported the case of the advocate. Mr. Natesan said that in the opinion of the Bar Council, it would be prooer for this Court to go into the matter. Previously the Bar Council had 3-L235Sup.CT/71

probably supported the case against the appellant. of the Bar Council in the case before us was this :

The stand

"The Disciplinary Committee of the Bar Council, while fi.nding that it has no jurisdiction to review the matter in view of the prior appeal to this Court, has gone also into the merits of the case, examined it ela-bJr utcly with reference to the material stated t°' be new niatter and has come to the same conclusion. The question that now arises is whether the Supreme Court can review the matter itself in this appeal when the Disciplinary Committee had no jurisdiction, and set aside the order made by the Disciplinary Committee on the merits. It may be different thing if this Court now reviews the order in the light of the materials placed before the Court after the production of the original document stated to have been torn which ex facie sho\\·s that it could not have been deliberate or wanton".Another body of lawyers. namely, the Bar Association of the Supreme Court sought permission to intervene and were heard. Mr. A. S. R. Chari on behalf of the As~ociation strongly supported the advocate's case. Thus we have the entire Bar of the countr1 and the entire Bar· of this Court unanimously asking this Court to go into the matter. It appears to us, therefore, that the Bar Council oil India does not wish to oppose the review by us of our vrder and indeed they invite us to grant relief to the appellant. Ordinarily we would have been unwilling to grant revi'ew afrer this Court had declined to do so on an earlier occasion. But the circum-stances are different. Our view of the matter is also that the charge of deliberately and wantonly qiutilating an important do-cument i.n iudicial file has not been a~ clearly made out as one would wish. This Court on earlier occasions. taking the facts from the order of the disciplinary committees., declined to inter· fere as no question ot law was involved. It decided the anpeal summarilv without issuing notice or sending far the record. There is force in the contention that an advocate is entitled to full appeal on facts and law under s. 38 of the Advocates Act. Since the disciplinary jurisdiction of the High Court h.as been taken away right of appeal to this Court has been substituted. This Court must in a]] cases go into the matter to satisfy itself that justice has been by the disciplinary committee or committees. tees.

We find some unusual circumstances facing us. The entire Bar of India are of the opinion that the case was not as satisfac-torily proved as one should be and me are also of the sams

opinion. All processes of the court are intended to secure justice and one such process is the power of review. No doubt frivolous reviews are to be disoouraged and technical rules have b(een devised to prevent persons from reopening decided cases. But as the disciplinary committee themselves observed there should not be too much technicality where professional honour is in-B volved and if there is manifest wrong done it is never too late to undo the wrong. This Court possesses under the Constitution special power of review and further may pass any order to do full and effective justice. This Court is moved to take action and the Bar Council of India. and the Bar Association of India are unanimous that the appellant deserves to have the order against him disbarring him from practice set aside. Looking at the. matter for ourselves we find tliat the document said to be mutilated was not needed for the case. l;n any event it was only carbon copy and not an orignal. No part of the typed portion was damaged except very slightly. The tear in two places equal to third 04' small postage stamp are the 0 subject of the charge. In our• opinion there was most probably no writing there as there was hardly any space available and the whole of the margin was available to write the attestatio,n of 'true copy'. The clerks did not speak of any writing at lirst and nov1 · too in very halting manner. No ste'ps were taken to· match the alleged pieces with the tears and the pieces have not been preserved. Thus there is the word of Amrik Singh against that of the appellant. There was background of hostility which the apµella.nt had created by his aggressive action in other cases. Whether· he handed the paper roughly and piece came off which he threw down without rnoticing it or the µaper gave way and piece fell (as it did when we handled it) it is not µossible to say with definiteness. We find it difficult to believe that this multi-F lation, without any rhyme or reason, was done with sinister motive. This is the unanimous view of the entire Bar of India speaking through Counsel.Our duty is clear. We would have paused to consider the law applicable to reviews in such matters but we do not think we should ascertain it in this case. This matter is one of the ethics of the profession which the law has entrusted to the Bar Council of Indfa. It is their opinion of case which must receive due weight. The Bar Council ihinks that the decision against the appellant is unsustainable. We see no reason to differ from them. We accordingly grant review in this case and set aside the order disbarring: the appellant from practice which had been pas~ed against him. There shall be no order about costs.