PETITIONER: MANAK LAL Vs. RESPONDENT: DR. PREM CHAND DATE OF JUDGMENT: 06/02/1957 BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. AIYYAR, T.L. VENKATARAMA DAS, S.K. CITATION: 1957 AIR 425 1957 SCR 575 ACT: Tribunal-Member having bias against Party-Whether tribunal improperly constituted-Waiver-What amounts to-Effect of waiver--Failure to examine a witness-Witness no better than accomplice-Effect-Professional misconduct by advocate- Measure of punishment. HEADNOTE: P filed a complaint of professional misconduct against M, an advocate of the High Court of Rajasthan. The Chief justice appointed a tribunal under the Bar Councils Act for enquiry into the complaint. C, a senior advocate, was appointed chairman of the tribunal. C had appeared once for P before the trial Court in the case out of which the complaint arose. No objection was raised as to its constitution before- the tribunal. The tribunal found M guilty of having got a false stay order in favour of his clients written by the clerk of the Court by improper means. The High Court concurred in this finding and directed the removal of M's name from the rolls. It was contended on behalf of M that the tribunal was not properly constituted. Held, that the constitution of the tribunal suffered from a serious infirmity in that C was appointed its member and acted as its chairman. It is well settled that every member of a tribunal that is called upon to try issues in judicial or quasi-judicial proceedings must be able to act judicially; and it is of the essence of judicial decisions and judicial administration that judges should be able to act impartially, objectively and without any bias. In such cases the test is not whether in fact a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done. Frome United Breweries Co. v. Bath justices [1926] A. C. 586, Rex v. Sussex justices, Exparte Mc Carthy [1924] I. K. B. 256, Rex. v. Essex justices, Ex parte Perkins [1927] 2 K. B. 475, followed. Rex v. Williams, Ex Parte Phillips [1914] I. K. B. 6o8, explained. The objection to the constitution of., the tribunal can be waived. Waiver can be inferred from the failure of the party to take the objection only if and after it is shown that the party 74 576 knew about the relevant facts and was aware of his right to take the objection. Since M knew that C had appeared for P and must be deemed to have been conscious of his legal rights, his failure to take the objection before the tribunal creates an effective bar of waiver against him. Vyuyan v. Vyuyan (186I) 30 Beav. 65; 54 E. R. 8I3 relied on. Even in quasi-criminalproceedings all important and relevant evidence must be laid before the tribunal, but it is generally for the prosecutor to decidewhich witnesses are necessary for the unfolding of the case. No adverse inference can be drawn against the complaint's case for failure to examine a witness who was no better than an accomplice. The order of the High Court removing M's name from the roll of advocates is fully justified. The misconduct proved is of a very serious character. Disapproval of such unworthy conduct must be expressed emphatically as the legal profession must be saved from persons who do not feel any hesitation in corrupting public officers by unworthy and illegal means for the benefit of their clients. JUDGMENT:
CIVIL APPELLATE JURISDICTION. Civil Appeal No. 246 of 1956.
Appeal by special leave from the judgment and order dated-
the November 11, 1955, of the Rajasthan High Court in Civil
Misc. Case No. 3 of 1952.
C.K. Daphtary, Solicitor-General of India, Veda Vyasa, S.
K. Kapur and N. H. Hingorani, for the appellant
H.J. Umrigar and T. M. Sen, for the respondent No. 2.
1957. February 6. The Judgment of the Court was delivered
by
GAJENDRAGADKAR J.-The appellant Sri Manak Lal was an
advocate practising at Soiat. A complaint was filed against
him under s. 13 of the Legal Practitioners Act by Dr. Prem
Chand Singhvi. It was alleged that the appellant was guilty
of professional misconduct and the complainant requested
that suitable action be taken against him in that behalf.
Since the appellant was not a pleader or a mukhtear but an.
advocate of the High Court of Rajasthan, the complaint was
sent for enquiry to the tribunal nominated by the Chief
justice’ of the High Court of Rajasthan under S. 10(2)
577
of the Bar Councils Act. The tribunal held an enquiry
recorded evidence and came to the unanimous conclusion that
the appellant “was guilty of professional misconduct in
having got a false stay order written by the clerk by
improper means and thereby he managed to take an illegal and
undue advantage for his clients and therefore deserves to be
punished for the same.” When this report was received by the
High Court, the matter was argued before the Court. In the
result the High Court agreed with the findings made by the
tribunal and directed that the appellant should be removed
from practice. It is against this order that by Special
Leave the appellant has come to this Court.
The facts giving rise to the complaint against the appellant
are very few. It appears that there was a dispute
concerning Jhalra well and certain agricultural plots
surrounding the well between Pukhraj and others on the one
hand and Dr. Prem Chand and others on the other. These
parties were described in the said proceedings as Party No.
1 and Party No. 2 respectively. The appellant was the
counsel for Party No. r. As a result of this dispute the
police presented a report in the court of the Sub-Divisional
Magistrate, Sojat, that the dispute was likely to cause
breach of peace and suggested that proceedings under s. 145
of the Code of Criminal Procedure should be taken. The Sub-
Divisional Magistrate drew out, a preliminary order on July
5, 1951 (Ex. A-1). By this order both the parties were
called upon to put in their written statements as regards
their claims to possession of the property in dispute. The
learned Magistrate also passed an order attaching the
property in dispute pending the decision of the proceedings
under s. 145. This was followed by another order passed on
August 9, 1951,,that the crop which was on the field should
be auctioned, its price deposited in court and the land
itself should be given for cultivation to the highest bidder
for the next year. It appears that the hearing of the case
was fixed for August 21 1951. Members of Party No. 1 were
aggrieved by these orders and on their behalf the’ appellant
preferred a revision application against these orders in the
court of the Sessions Judge, Pali, on August 13,
578
1951. The appellant presented another petition before the
learned Sessions judge on August 29, 195 1. In this petition
it was alleged that the crop which stood on the fields in
question belonged to the cultivators Described as Party No.
1, that the crop was getting spoiled and that the
cultivators would be considerably prejudiced if they were
dispossessed- from their lands at that stage. On these
allegations the application prayed that an order should be
passed not to auction the crop as well as the right of
future cultivation and that liberty should be given to the
cultivators to go to the well and to look after the crop
pending the final disposal of their revision application
before the learned Sessions Judge. The learned Sessions,
Judge was not apparently inclined to grant ex parte interim
stay and so on the same day he directed that notice of the
revision application should be given to the other party and
called upon the applicants to furnish talbana and a copy of
the application. The case then stood adjourned for hearing
on September 6, 1951. On September 6, 1951, when the case
was called out before the learned Sessions Judge, the
appellant was present. The learned Sessions Judge found
that the appellant had not submitted a copy of his
application as already directed but he was told that the
appellant was submitting a copy on the same day. That is
why the learned Judge ordered that notice should be issued
after the said copy was filed. The hearing of the case was
then adjourned to September 12, 1951. So far there is no
dispute about the facts. There is, however, a serious
dispute as to other events which, according to the
complainant, happened on September 6, 1951. The
complainant’s case is that, after the hearing of the case
was adjourned to’ September 12, 1951, and notice of the
application was ordered to be issued to Party No. 2, the
appellant prevailed upon Shri Maghraj, clerk of the Sessions
Judge’s Court to prepare an actual stay order, that the said
stay order was accordingly prepared and was got signed by
the Reader of the Court. Then the appellant obtained the
stay order from Shri Sheolal the despatch clerk to whom it
was entrusted by the Reader. Armed with this order the
appellant personally took
579
the order to the Sub-Divisional Magistrate and presented it
to him the next day. In due course the revision application
was taken up for hearing on September 12, 1951. Since no
notice had been served on Party No. 2 the hearing was again
adjourned to September 22, 1951. It is common ground that
on September 22, 1951, it was discovered that a fraudulent
stay order had been issued from the office of the learned
Sessions Judge’s Court. The learned Sessions Judge then
called for explanation from Shri Maghraj and directed the
Sub-Divisional Magistrate to treat the letter of September
6, 1951, containing the alleged order of stay as cancelled.
It appears that as a result of the enquiry held by the
learned Sessions Judge, he found that Shri Maghraj had
committed a grave mistake and held that it would be enough
if Shri Maghraj was fined Rs. II/and administered a severe
warning to behave properly in future. The complaint against
the appellant is that the appellant took an active part in
the commission of the fraud and was thus guilty of
fraudulent and grossly improper conduct in the discharge of
his professional duty. A false order had been obtained by
him by unfair means and so he was guilty of professional
misconduct. That in substance is the case against the
appellant.
As we have already indicated, many of ‘the facts alleged in
the complaint against the appellant are not in dispute. The
appellant admits that he was present before the learned
Sessions Judge on September 6, 1951. It is not denied by
him that he took the envelope from the despatch clerk
addressed-to the Sub-Divisional Magistrate, Sojat, and that
he in fact handed over the envelope the next day in the
office of -the Sub-Divisional Magistrate. His case,
however, is that he never approached Shri Maghraj in this
matter and that he was not in any way instrumental in get-
ting the draft prepared. In fact, according to the
appellant, he did not know the contents of the envelope and
it was only on September 22, 1951, that he knew that a false
order of stay had been issued by the office.of the Sessions
Judge by mistake. Before the tribunal, (evidence was led by
both the parties The
580
complainant Dr. Prem Chand himself gave evidence and on his
behalf Shri Maghraj and Shri Sheolal were examined. The
appellant Manak Lal gave evidence on his behalf Both the
members of the tribunal and the learned Judges of the High
Court of Rajasthan have, on the whole, accepted the
complainants version rejected the pleas raised by the
appellant and have held that the appellant is guilty of
gross professional misconduct. It is this finding which, on
the merits, is challenged before us by Shri C. K. Daphtary
on behalf of the appellant. Shri Dal phtary has also raised
two points of law in support of his argument that the order
passed against the appellant must be set aside. It -will be
convenient to deal with these points first.
Shri Daphtary contends that the tribunal appointed by the
learned Chief Justice of the High Court of Rajasthan to
enquire into the alleged misconduct of the appellant was
improperly constituted and all proceedings taken before the
tribunal, the report made by it and the subsequent order
passed by the High Court pursuant to this report are all
invalid. This point arises in this way. The tribunal
consisted of three members with Shri Changani as it,-,
Chairman. It is common ground that Shri Chhangani had filed
his vakalat on behalf of Dr. Prem Chand in proceedings under
s. 145 of the Code of Criminal Procedure on August 23, 1952,
and had in fact argued the case on that date. Shri Daphtary
contends that since Shri Chhangani had appeared in the
criminal proceedings in question for the opponent he was
disqualified from acting as a member of the tribunal and
this disqualification introduces a fatal infirmity in the
constitution of the tribunal itself There is some force in
this argument. It is well settled that every member of a
tribunal that is called upon to try issues in judicial or
quasi-judicial proceedings must be able to act judicially;
and it is of the essence of judicial decisions and judicial
administration that judges should be able to act
impartially, objectively and without any bias. In such
cases the test is not Whether in fact a bias has affected
the judgment; the test
581
always is and must be whether a, litigant could reasonably
apprehend that a bias attributable to a member of the
tribunal might have operated against him in the final
decision of the tribunal. It is in this sense that it, is
often said that justice must not only be done but must also
appear to be done. As Viscount Cave L. C. has observed in
From United Brewerses Co. v. Bath Justices (1) ” this rule
has been asserted not only in the case of Courts of Justices
and other judicial tribunals but in the case of authorities
which, though in no sense to be called Courts, have to act
as judges of the rights of others “. In dealing with cases
of bias attributed to members constituting tribunals, it is
necessary to make a distinction between pecuniary interest
and prejudice so attributed. It is obvious that pecuniary
interest, however small it may be in a subject-matter of the
proceedings, would wholly disqualify a member from acting as
a judge. But where pecuniary interest is not attributed but
instead a bias is suggested, it often becomes necessary to
consider whether there is a reasonable ground for assuming
the possibility of a bias and whether it is likely to
produce in the minds of the litigant, or the public at large
a reasonable doubt about the fairness of the administration
of justice. It would always be a question of fact to be
decided in each case. ” The principle says Halsbury, “nemo
debet esse judex in causaproprta sua precludes a justice,
who is interested in the subjectmatter of a dispute, from
acting as a justice therein ” (2). In our opinion, there is
and can be no doubt about the validity of this principle and
we are prepared to assume that this principle applies not
only to the justices as mentioned by Halsbury but to all
tribunals and bodies which are given jurisdiction to
determine judicially the rights of parties.
In support of his argument, Shri Daphtary referred us to the
decision in Rex v. Sussex Justices, Ex parte McCarthy (3).
In this case, the Court was dealing with a case &rising out
of a collision between a motor
(1) [1926] A.C. 586, 590.
(2) Halsbury’s Laws of England, Vol- XXI, P- 535, para 952.
(3) [1924] 1. K. B. 256,
582
vehicle belonging to the applicant and one belonging to W.
At the hearing of the summons the acting clerk to the
justices was a member of the firm of solicitors who were
acting for W in a claim for damages against the applicant
for injuries received in the collision. After the evidence
was recorded the justices retired to consider their decision
and the acting clerk also retired with them in case they
should desire to be advised on any point of law. The appli-
cant was convicted in the case. This conviction was
challenged by the applicant on the ground that it was
vitiated by the improper conduct of the justices in allowing
the acting clerk to be associated with them when they
deliberated about the merits of the case. An affidavit was
filed on behalf of the justices that they reached their
decision without consulting the acting clerk and that the
acting clerk had in fact abstained from referring to the
case. This affidavit was accepted as true by all the
learned judges who heard the case and yet the conviction was
quashed. “The question is” observed Lord Hewart C.J.
whether the acting clerk was so related to the case in its
civil aspect, as to be unfit to act as a clerk to the
justices in the criminal matter” and the learned judge added
that “the answer to that question depends not upon what
exactly’was done but upon what might appear to be done.
Nothing is to be done which creates even a suspicion that
there has been an improper interference in the course of
justice.” Lush J. who agreed with Lord Hewart C.J. likewise
accepted the affidavit made on behalf of the justices but
observed, “that they have placed themselves in an impossible
position by allowing the clerk in those circumstances to
retire with them into their consultation room.” The same
principle was enunciated. with equal emphasis in Rex v.
Essex Justices, Ex parte Perking (1). This was a dispute
between a husband and his wife and it appeared that the wife
had consulted the solicitor’s clerk in their office about
the preparation of a deed of separation from her husband and
the lawyer acted in the matter for a time after which she
ceased to consult him. No mention of
(1) (1927] 2 K.B. 475.
583
the matter was made to the solicitor himself except one very
short reference to it in a weekly report from his clerk.
Subsequently the solicitor acted as a clerk to the justices
who tried the case. He stated in his affidavit that, when
acting as a clerk to the justices on the occasion in
question, he had no knowledge that his firm had acted for
the wife and that he was in no way adverse to the husband.
It was urged that the decision of the justices should be set
aside as the justices were not properly constituted and it
appears also to have been suggested that the decision might,
perhaps, have been influenced by a prejudice though
indirectly and to a very small extent. Rejecting the
argument that the decision of the justices had been
influenced even remotely by the impropriety alleged, Avory
J. stated that “though the clerk to the justices and the
‘justices did not know that his firm had acted for the
applicant’s wife, the necessary, or at least the reasonable,
impression, on the mind of the applicant would be that
justice was not done seeing that the solicitor for his wife
was acting with the justices and advising’ them on the hear-
ing of the summons which she had taken against him.”
It has, however, been urged before us by Shri Umrigar, on
behalf of the Advocate-General, that this principle should
not be applied to the proceedings before the tribunal
appointed under the Bar Councils Act. He contends that the
tribunal is not empowered to. pass final orders on the
enquiry and that the report made by the tribunal is, in
every case, to be submitted to the High Court for the final
decision of the High Court. We are not impressed with this
argument. If it is true that in judicial or quasi-judicial
proceedings justice must not only be done but must appear to
be done to the litigating public, it is equally true that
when a lawyer is charged for professional misconduct and is
given the privilege of being tried by a tribunal of the Bar
Council, the enquiry before the tribunal must leave no room
for a reasonable apprehension in the mind of the lawyer that
the tribunal may have been even indirectly influenced by any
bias in the mind of any of the members of the tribunal. In
the present case, we have no hesitation in assuming that
when
75
584
Shri Chhangani agreed to work as the Chairman of the
tribunal, he did not remember that he had appeared against
the appellant’s clients in the criminal proceedings under s.
145. We are told that Shri Chhangani is a senior member of
the Bar and was once Advocate-General of the High Court of
Rajasthan. Besides he had not appeared in the case at all
stages but had appeared only once as a senior counsel to
argue the matter. It is, therefore, not at all unlikely
that Shri Chhangani had no personal contact with the client
Dr. Prem Chand and may not have been aware of the fact that,
in the case from which the present proceedings arose, he had
appeared at any stage for Dr. Prem Chand. We are, however,
inclined to hold that this fact does not in any way affect
the legal argument urged before us by Shri Daphtary. It is
not Shri Daphtary’s case that Shri Chhangani actually had a
bias against the appellant and that the said bias was
responsible for the final report made against the appellant.
Indeed it is unnecessary for Shri Daphtary to advance such
an argument. If Shri Chhangani was disqualified from
working as a member of the tribunal by reason of the fact
that he had appeared for Dr.’ Prem Chand in the criminal
proceedings under s. 145 in question, then it would not be
necessary for Shri Daphtary to prove that any prejudice in
fact had been caused or that Shri Chhangani improperly
influenced the final decision of the tribunal. Actual proof
of prejudice in such cases may make the, appellant’s case
stronger but such proof is not necessary in order that the
appellant should effectively raise the argument that the,
tribunal was not properly constituted.
Shri Umrigar, however, contended that unless prejudice is
actually proved the challenge to the validity of the
constitution of the tribunal cannot be upheld and he sought
to rely upon the decision in Rex v. Williams, Ex parts
Phillips(1) in support of this contention. In this case the
court was dealing with an application for a writ of
certiorari. A baker had been charged under s. 4 of Bread
Act of 1836. It was
(1) [1914] 1 K.B. 608.
585
alleged that he had sold bread otherwise than by weight and
was liable to be convicted under s. 15 of the Act. In fact
he was so convicted. Thereupon he obtained a rule nisi for
a writ of certiorari to quash the conviction on the ground
that one of the justices was a person concerned in the
business of a baker. Section 15 disqualified persons
concerned in the business of a baker to act as a justice in
the trial of such cases. This application for a writ was
ultimately rejected by the Court. The decision of the
Court, however, was based substantially on two grounds.
Channel J., who delivered the principal judgment of the
Court, observed that ” when objection to a conviction is
taken merely by a member of the public and not by a party
more particularly aggrieved the granting of a certiorari’ is
discretionary. Where the objection is by a party aggrieved,
then, as a rule, a writ is issued ex debito. justitiae.
This position, however, is subject to the exception that a
party aggrieved may by his conduct preclude himself from
taking objection to the jurisdiction of an inferior Court.
” But it is significant that the second ground on which the
judgment proceeded clearly indicates that the justice whose
presence at the hearing was challenged under s. 15 of the
Act by the petitioner did not apparently appear to fall
within the mischief of s. 15 of the Act at all. “I do not
say”, observed Channel J., ” whether the facts shown would
be enough to make him a person following or concerned in the
business of a baker within the meaning of s. 15 “. This
conclusion was accepted by the two other learned judges. It
would thus appear that the decision in this case does not
justify Shri Umrigar’s contention that, even if the
constitution of the tribunal is held to be defective or
improper, the proceedings taken before the tribunal and the
orders subsequently passed in pursuance of the report cannot
be successfully challenged unless it is shown that the
defective constitution of the tribunal had in fact led to
the prejudice of the appellant. We would,, therefore, hold
that Shri Daphtary is right when he contends that the
constitution of” the tribunal appointed by the Chief Justice
of the High Court of
586
Rajasthan suffered from a serious infirmity in that Shri
Chhangani, who had appeared for Dr. Prem Chand in the
criminal proceedings in question, was appointed a member of
the tribunal and in fact acted as its Chairman.
The next question which falls to be considered is whether it
was open to the appellant to take this objection for the
first time before- the High Court. In other words, has he
or has he not waived his objection to the presence of Shri
Chhangani in the tribunal? Shri Daphtary does not seriously
contest the position that the objection could have been
effectively waived. The alleged bias in a member of the
tribunal does not render the proceedings invalid if it is
shown that the objection against the -presence of the member
in question had not been their by the party even though the
party knew about the circumstances giving rise to the
allegations about the alleged bias and was aware of his
right to challenge the presence of the member in the
tribunal. It is true that waiver cannot always and in every
case be inferred merely from the failure of the party to
take the objections Waiver can be inferred only if and after
it is shown that the party knew about the relevant facts and
was aware of his right to take the objection in question.
As Sir John Romilly M. R. has observed in Vyvyan v. Vyvyan
(1) ” waiver or acquiescence, like election, presupposes
that the person to be bound is fully cognizant of his
rights, and, that being so, he neglects to enforce them, or
chooses one benefit instead of another, either, but not
both, of which he might claim “. If, in the present case, it
appears that the appellant knew all the facts about the
alleged disability of Shri Chhangani and was also aware that
he could effectively request ‘the learned Chief Justice to
nominate some other member instead of Shri Chhailgani and
yet did not adopt that course, it may well be that he
deliberately took a chance to obtain a report in his favour
from the tribunal and when he came to know that the report
had gone against him he thought better of his rights and
raised this point before the High Court for the first
(1) (1861) 30 Beav, 65, 74 54 ER. 813, 817.
587
time. In other words, though the point of law raised by
Shri Daphtary against the competence of the, tribunal be
sound, it is still necessary for us to consider whether the
appellant was precluded from raising this point before the
High Court by waiver or acquiescence.
From the record it is clear that the appellant never raised
this point before the tribunal and the manner in which this
point was raised by him even before the High Court is
somewhat significant. The first ’round of objection filed
by the appellant against the tribunal’s report was that Shri
Chhangani had pecuniary and personal interest in the
complainant, Dr. Prom Chand. The learned Judges of the High
Court have found that the allegations about the pecuniary
interest of Shri Chhangani in the present proceedings are
wholly unfounded and this finding has not been challenged
before us by Shri Daphtary. The learned Judges of the High
Court have also found that the objection was raised by the
appellant before them only to obtain an order for a fresh
enquiry and thus gain time. It may be conceded in favour of
Shri Daphtary that the judgment of the High Court does not
in terms find against the appellant on the ground of waiver
though that no doubt appeare to be the substance of their
conclusion. We have, however, heard Shri Daphtary’s case on
the question of waiver and we have no hesitation in reaching
the conclusion that the appellant waived his objection
deliberately and cannot now be allowed to raise it. Shri
Daphtary does not contend that at the material time the
appellant did not remember the fact that Shri Chhangani had
appeared for Dr. Prem Chand in the criminal proceedings.
Indeed such a plea cannot be raised by the appellant in view
of the affidavit which the appellant sought to place before
us in the present appeal. -Under this affidavit, the
appellant’s case appears to be that until lie met his
advocate Shri Murli Manohar for filing objections to the
report of the tribunal, the appellant did not know that Shri
Chhangani was legally disqualified from acting as a member
of the tribunal. It is obvious that this ground necessarily
implies that the appellant knew about the facts giving
588
ise to the alleged disqualification of Shri Chhangani to act
as a member of the tribunal. In substance, the Contention
is that though the appellant knew that Shri Chhangani had
appeared for Dr. Prem Chand in the criminal proceedings in
question, he was not aware that, in consequence, Shri
Chhangani was disqualified to act as a member of the
tribunal. It is this limited aspect of the matter which is
pressed before us by Shri Daphtary. Shri Daphtary contends
and no doubt rightly that if we are satisfied that the
appellant did not know about the true legal position in this
matter and his rights arising therefrom, his failure to
challenge the appointment of Shri Chhangani on the tribunal
would not raise an effective plea of waiver. However, in
our opinion, it is very difficult to accept Shri Daphtary’s
argument that his client did not know the true legal
position or his rights until he met Shri Murli Manohar. No
doubt the appellant is a junior at the Bar but even so he
can claim ten years’ standing at the Bar. Besides, he had
the assistance of a lawyer in defending him in the present
proceedings and it appears extremely difficult to assume
that neither the appellant nor his lawyer knew that the
presence of Shri Chhangani in the tribunal could be
effectively challenged by them. We are disposed to think
that even a layman, not familiar with legal technicalities
and equitable principles on which this doctrine of
disability has been based, would have immediately
apprehended that the lawyer who had appeared for Dr. Prem
Chand was authorised to sit in judgment over the conduct of
the appellant and that might cause embarassnient to the
appellant and might lead to prejudice against him. From a
purely common sense point of view of a layman, the position
was patently awkward, and so, the argument that the
appellant was not conscious of his legal rights in this
matter appears to us to be an afterthought. Since the
appellant was driven to adopt this untenable position before
the High Court in seeking to raise this point for the first
time at that stage, we are not surprised that the High Court
took the view that the plea had been taken late in order, to
gain time and to secure a fresh enquiry in
589
the matter. Since we have no doubt that the appellant knew
the material facts and must be deemed to have been conscious
of his legal rights in that matter, his failure to take the
present plea at the earlier stage of the proceedings creates
an effective bar of waiver against him. It seems clear that
the appellant wanted to take a chance to secure a favourable
report, from the tribunal which was constituted and when he
found that he was confronted with an unfavourable report, he
adopted the device of raising the present technical point.
Then Shri Daphtary sought to challenge the main conclusion
of the High Court that the appellant was guilty of
professional misconduct on a preliminary ground. He
contended that the High Court judgment shows that the
learned Judges had considered some inadmissible evidence in
the absence of the appellant and without giving him an
opportunity to be heard on the said evidence and that had
introduced an infirmity in the judgment which vitiated their
final conclusions. It appears from the judgment of the High
Court that the learned Judges sent for and looked into the
record of Revision Application No. 31 of 1951 in the Court
of the Sessions Judge, Pali, and the record of Case No. 134
of 1951 in the Court of the Sub-Divisional Magistrate,
Sojat. Shri Daphtary has made pointed reference to the fact
that the record in Case No. 134 of 1951 was sent for by the
High Court after this matter had been argued before them.
If we had been satisfied that the learned Judges of the High
Court had taken into consideration material documents which
were not before them at the time the case was argued before
them, we would certainly have considered Shri Daphtary’s
grievance more seriously. We are, however, not satisfied
that the grievance made by Shri Daphtary against this
alleged irregularity is really justified. The High Court
judgment shows that the appellant argued before the High
Court that he could not have been concerned with the
fabrication of the false order because his subsequent
conduct showed that he was not at all interested in seeing
that the said order was implemented.. In fact, this argument
has been characterised
590
by the High Court as plausible but not sound. It was this
argument which provoked the reply from the other side that
in fact the fabricated order had been implemented and in
support of this reply reference was made to the application
made by Dr. Prem Chand and his men in which it had been
specifically alleged that the appellant’s clients had taken
possession of the crops and that they had also removed them.
This application had been made on September 24, 1951, and it
requested the Sub-Divisional Magistrate to prevent the
appellant’s clients from taking illegal possession of the
land and removing the crops. It is these two rival
contentions which the learned Judges of the High Court had
to examine. The judgment shows that it was substantially
with a view to satisfy themselves that the application
referred to by the respondent before the High Court in the
course of the argument had in fact been made that the High
Court subsequently called for and examined the relevant
records. It may be that in the earlier part of the judgment
the learned Judges have stated somewhat generally that they
had looked at the records of both the cases; but it is clear
from the reasons given by the learned Judges that the
perusal of the records in the said two cases had played no
part in the final decision of the High Court. We are,
therefore, not satisfied that the procedure adopted by the
High Court in dealing with this matter suffers from any
serious irregularity as a result of which their final orders
should be set aside and a fresh hearing of the matter should
be ordered.
Then remains the question of the merits of the finding
recorded by the High Court. Shri Daphtary himself was aware
that this part of his case is bound to be weak in an appeal
which has been admitted on Special Leave under Art. 136 of
the Constitution. Both the tribunal and the High Court have
made concurrent findings of fact against the appellant and
it is difficult to accept the argument that this finding of
‘fact should be re-examined on the merits by us in the
present appeal. We may, however, incidentally point out
that there are some salient features of the case which
unequivocally support the view taken by the High
591
Court against the appellant. It is common ground that the
appellant’s clients were not present before the Sessions
Judge on September 6, 1951. It is admitted that the
appellant was present and that he took the envelope
containing the order to the Sub-Divisional Magistrate. It
may be that, in the State of Jodhpur, lawyers practising in
subordinate courts sometimes assisted the court officers by
taking packets containing judicial orders from one court to
another; but, if the appellant’s clients were not present in
the court, it is difficult to understand how the fabricated
order came to be prepared without instigation by the,
appellant. It is inconceivable that officers of the court
would suo motu think of fabricating the order. The order
was intended to benefit the appellant’s clients and, on the
whole, it is an irresistible inference that the appellant
must have corrupted the officers of the court by the offer
of illegal consideration and induced them to fabricate the
order. Shri Daphtary attempted to rely on the view taken by
the learned Sessions Judge in the enquiry which he held soon
after he learnt about the issue of this fabricated order.
We are free to confess that we are not at all satisfied with
this enquiry and its final decision. However., we are
really not concerned to consider the merits of this enquiry
and we cannot attach any importance to an argument based on
the view taken by the learned Sessions Judge in this
enquiry. The High Court has taken the view, and we think
rightly, that the conduct of Shri Loya should also be
examined as it is obvious that both Shri Loya and Shri
Maghraj were interested in persuading the Sessions Judge to
take the view that the fabrication of the order was due to a
mistake committed by Shri Maghraj. The theory of a mistake
committed by Shri Maghraj is, in our opinion, wholly
unreasonable, if not fantastic. The order passed by the
learned Sessions Judge on September 6, 1951, is clear beyond
any doubt. Shri Maghraj read this order and it is suggested
that he misconstrued its effect. How an order directing
notice of the application to the opponent along with a copy
of the application to be served on the opponent could ever
have been construed to mean an order
76
592
Directing the issue of stay, it is impossible to understand.
Then again, the order actually issued is elaborate in its
terms and its object clearly was to require the Sub-
Divisional Magistrate to give effect to the prayers made by
the appellant in his application without any delay.
Besides, the endorsement made by Shri Maghraj showing that
the order had been complied with and his silence on
September 12, 1951, when the learned Sessions Judge found
that notice had not been served are very eloquent. If Shri
Maghraj had committed an honest mistake, he would have
immediately reported to the learned Sessions Judge that
notice had not been issued and instead erroneously an order
of stay had been sent in the said proceedings. Besides,
when Shri Maghraj gave evidence in the present proceedings,
he did not adhere to the theory of mistake. His present
version is that he prepared the draft order at the instance
of the appellant before the case was argued and when he
received it back duly signed by the Reader Shri Loya, it was
given to the despatcher and from him it reached the hands of
the appellant. There is no doubt that Shri Maghraj is an
accomplice and, so like all accomplices, he has tried to
minimise the part played by him in this transaction. It is
true that the evidence against the appellant is
substantially circumstantial and there is no a doubt that
the finding against the appellant cannot be made on such
circumstantial evidence unless the evidence is wholly incon-
sistent with his innocence and leads irresistibly to the
inference of his guilt. The judgment of the High Court
shows that the learned judges were fully conscious of this
legal position. They have held that, having regard to all
the circumstances of the case it is impossible to hold that
the fabricated order could have come into existence. and
would have been despatched hurriedly without the active
assistance and collaboration of the appellant.
Shri Daphtary then argued that the failure of the
complainant to examine Shri Loya, the Reader, was deliberate
and he suggested that adverse inference against the
complainant should be drawn in consequence. Indeed this was
the only point which Shri
593
Daphtary placed before us seriously in regard to the merits
of the finding recorded by the High Court against the
appellant. It may be conceded in favour of Shri Daphtary
that, even in quasi-criminal proceedings like the present,
all important and relevant evidence must be laid before the
tribunal; but this requirement is always subject to the
proviso that it is generally for the prosecutor who is in
charge of the case to decide which of the witnesses are
necessary for the unfolding of the case. The prosecutor no
doubt must act bona fide and fairly by the court and the
person against whom the proceedings have been started.
Acting bona fide, if the prosecutor takes the view that
certain witnesses need not be examined, generally the court
would be reluctant to draw an adverse inference against the
prosecution. Besides, in the present case, there is no
justification for drawing any such adverse inference against
the complainant because Shri Loya is no better than an
accomplice and it is difficult to assume that the failure of
the complainant to examine an accomplice can ever give rise
to an adverse inference against the complainant’s case. If
that be the true position, it would be idle to contend that
the finding of the High Court is vitiated by reason of the
fact that the High Court did not consider the effect of the
complainant’s failure to examine Shri Loya before the
tribunal. Incidentally this point does not appear to have
been pressed before the High Court. In the result, we have
no hesitation in holding that no case has been made out for
our interference with the conclusions of the High Court
under Art. 136 of the Constitution.
That leaves only one point to consider and that is the
correctness or the propriety of the order passed by the High
Court directing the removal of the appellant’s name from the
roll of legal practitioners. Shri Daphtary contends that
this order is unduly severe and he has appealed to us to
consider the fact that the appellant was a junior at the Bar
and the removal of his name from the roll of legal
practitioners would deprive him of the source of his
livelihood. We are not impressed with this argument at all.
Unfortunately
594
it appears that this, is not the first time that the
appellant has come into trouble on the ground of
professional misconduct. In 1952 he was suspended for a
period of two months for misappropriating some money given
to him by his clients for the payment of court fee. This is
one fact which is against the appellant. Besides, the
misconduct which is proved in this case is, in our opinion,
of a very serious character. In the administration of law
and justice, lawyers have to play an important part. They
are, in a sense, officers of the court and as such they are
given special rights and privileges. The profession of law
enjoys high and respected status and reputation of its own
and this status carries with it corresponding obligations.
Naturally the Bar must zealously safeguard the highest
standards of professional morality and integrity. In
fairness to the Bar, we ought to add that cases of this
nature are very rare but unfortunately when such cases come
before the courts, the courts must take a serious view of
such reprehensible lapses and must pass deterrent orders.
It is our duty to express our disapproval of such unworthy
practices as emphatically as we can because the legal
profession must be saved from persons who do not feel any
hesitation in corrupting public officers by unworthy and
illegal considerations for the temporary and immediate
benefit of their clients. We must, therefore, hold that the
order passed by the High Court directing the removal of the
appellant’s name from the rolls is fully justified. In the
result, the appeal fails and must be dismissed with costs.
Appeal dismissed.
595