{"id":37079,"date":"1970-09-04T00:00:00","date_gmt":"1970-09-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/o-n-mahindroo-vs-distt-judge-delhi-anr-on-4-september-1970"},"modified":"2019-01-02T04:26:27","modified_gmt":"2019-01-01T22:56:27","slug":"o-n-mahindroo-vs-distt-judge-delhi-anr-on-4-september-1970","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/o-n-mahindroo-vs-distt-judge-delhi-anr-on-4-september-1970","title":{"rendered":"O. N. Mahindroo vs Distt. Judge, Delhi & Anr on 4 September, 1970"},"content":{"rendered":"
Supreme Court of India<\/div>\n
O. N. Mahindroo vs Distt. Judge, Delhi & Anr on 4 September, 1970<\/div>\n
Equivalent citations: 1971 AIR 107, \t\t 1971 SCR (2)\t 11<\/div>\n
Author: M Hidayatullah<\/div>\n
Bench: Hidayatullah, M. (Cj)<\/div>\n
           PETITIONER:\nO.   N. MAHINDROO\n\n\tVs.\n\nRESPONDENT:\nDISTT.\tJUDGE, DELHI & ANR.\n\nDATE OF JUDGMENT:\n04\/09\/1970\n\nBENCH:\nHIDAYATULLAH, M. (CJ)\nBENCH:\nHIDAYATULLAH, M. (CJ)\nMITTER, G.K.\nRAY, A.N.\n\nCITATION:\n 1971 AIR  107\t\t  1971 SCR  (2)\t 11\n CITATOR INFO :\n RF\t    1980 SC 674\t (8)\n R\t    1983 SC 990\t (9)\n RF\t    1983 SC1125\t (7)\n APL\t    1989 SC 245\t (12)\n\n\nACT:\nAdvocates  Act\t1961, ss. 44  and  10(3)-Review-Bar  Council\ncannot\t review\t  aecision   of\t  Disciplinary\t  Committee-\nDisciplinary Committee's power of review-Grounds for  review\nneed not be similar or analogous to those found in s. 114 or\n0.47  R. 1 of Code of Civil Procedure Principles  of  antre-\nfois  convict  or  antre- fois acquit  also  not  applicable\nReview\tpetition  must be dealt with  objectively-Review  by\nSupreme\t Court, considerations for-Appeal to  Supreme  Court\nunder s. 38 Advocates Act, Scope of-Professional misconduct-\nProof of.\n\n\n\nHEADNOTE:\nThe  appellant was an advocate of this Court.\tA  complaint\nwas  made  by the District Judge Delhi against him  on\t29th\nFebruary,  1964\t to the Bar Council of the  State  of  Delhi\nalleging  that\the had mutilated a document by\ttearing\t two\npieces\tfrom  it while examining a judicial  record  in\t the\ncourtroom  in  the presence of the junior  clerk.   The\t Bar\nCouncil\t of  the State of Delhi referred the matte,  to\t its\nDisciplinary  Committee.  The explanation of  the  appellant\nbefore the Disciplinary Committee was of the Judges and\t the\nstaff of the District Court, Delhi.He  denied that  the\ndocument was important or that he mutilated it.He   asked\nfor summoning the torn\t   document and the pieces but onlythe\ndocument was received.\tAccording to the District Judge\t the\npieces\twere  misplaced\t and   could  not  be  found.\t The\nDisciplinary  Committee held the appellant guilty of  having\nmutilatedthe document on the basis of the oral evidence of\nthe junior clerk.  Theappellant,  thereupon, appealed  to\nthe  Bar Council of India but the Disciplinary Committee  of\nthe  Bar Council of India dismissed the appeal.\t His  appeal\nto  this  Court under s. 38 of the Advocates  Act  was\talso\ndismissed at the preliminary hearing.  The appellant filed a\nreview petition before the Disciplinary Committee of the Bar\nCouncil\t of India but it was rejected.\tThe  appellant\tthen\nfiled  a  writ petition in the High Court of  Punjab  (Delhi\nBench)\tchallenging s. 38 of the Advocates Act and r. 7\t and\nOr. 5 of the rules of this Court as ultra vires Art.  138(2)\nof  the Constitution.  The writ petition was admitted and  a\nrule nisi was issued.  Meanwhile this Court in dealing\twith\na review petition filed by the appellant had issued a notice\nto  the\t District Judge to find out the\t torn  pieces.\t The\nDistrict  Judge reported that the mutilated document  was  a\ncopy  of the lawyer's notice and that only a small piece  of\nhalf  inch was missing from the bottom of the  second  page.\nThe  pieces were not traceable.\t He also reported  that\t the\njunior clerk was not sure that any thing was written on\t the\ntorn  pieces  but according to his  recollection  the  words\n'true  copy'  followed\tby  the\t signature  Vir\t Bhan'\twere\nwritten. This.\t Court\tdismissed the  review  petition\t on\nSeptember, 26, 1966.  Thewrit  petition\t in  the   High\nCourt was also dismissed by a single Judgeon October  12,\n1966.\tIn the proceedings it appeared that the document  in\nquestion  had  not been relied upon by the party  which\t had\nfiled it. A  letters  patent appeal was\t filed\tagainst\nSingle\tjudge's\t judgment and order.   Before  the  Division\nBench  the validity of s. 38 of the Advocates Act alone\t was\nchallenged.   The  Division Bench dismissed the\t ,)peal\t but\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL  APPELLATE JURISDICTION : Civil Appeals Nos. 2637\t and
\n2638 of 1969.\n<\/p>\n
Appeals by special leave from the order dated July 12,\t1969
\nof  the\t Bar Council of India, New Delhi in  Petition  dated
\nJanuary\t 17, 1969 at item No. 42 of 1969 and from the  order
\ndated  October 4, 1969 of the Disciplinary Committee of\t the
\nBar  Council  of  India in Review Petition  No.\t 2  of\t1969
\nrespectively.\n<\/p>\n
C.   K.\t Daphtary,  A.\tN.  Mulla,  Bishan  Narain,  W.\t  S.
\nBarlingay,  and O.N. Mohindroo, for the appellant  (in\tboth
\nthe appeals.).\n<\/p>\n
M.   Natesan, Uma Mehta, D. N. Misra and B. P. Singh, for
\nrespondent No. 2 (in C.A. No. 2637 of 1969).
\nA.S.  R. Chari and B. Datta, for the intervener (in  both
\nthe appeals).\n<\/p>\n
The Judgment of the Court was delivered by
\nHidavatullah, C.J.-The appellant in these two appeals is  an
\nadvocate any of this Court, who on complaint by the District
\nJudge,\tDelhi, 29 February, 1964, to the Bar Council of\t the
\nState  of Delhi, was held guilty of professional  misconduct
\nand  suspended from practice for a year by the\tdisciplinary
\ncommittee  of  the  said Bar Council.  He  appealed  to\t the
\ndisciplinary committee of the Bar Council of India under  s.
\n37  of\tthe Advocates Act.  The appeal was  dismissed.\t His
\nappeal\tto this Court under S. 38 of the Act  was  dismissed
\nsummarily  at the preliminary hearing.\tThe  charge  against
\nhim  was  that\twhile inspecting a judicial  record  in\t the
\ncompany\t of Mr. Kuldip Singh Advocate, he tore out 2  pieces
\nof  paper from an Exhibit (C-1).  The pieces were thrown  by
\nhim  on\t the  ground.\tThe  clerk  in-charge  reported\t the
\nincident to the District Judge and the complaint followed.
\nThe suit, record of which was being inspected, arose in\t the
\nfollowing circumstances.  On February 6, 1963 Mr. Anant\t Ram
\nWhig, an advocate, sent a notice on behalf of one Sarin to a
\ncertain\t Ramlal\t Hans  and his wife claiming a\tsum  of\t Rs.
\n4,3701as  reward  for the success of their  daughter  at  an
\nexamination including tuition fees.  Sarin was preparing the
\ngirl  for  the\tB.A. examination.  The claim  of  Sarin\t was
\nrepudiated  by\tRamlal Hans in a reply\tdated  February\t 11,
\n1963.\tThe  matter was referred to the arbitration  of\t Mr.
\nMansaram, Municipal Councillor, Delhi by an agreement  dated
\nFebruary  24,  1963.  The arbitrator gave an award  for\t Rs.
\n1,000\/-\t in  favour of Sarin.  The award was  filed  in\t the
\nCourt  of  Mr. Brijmohanlal Aggarwal, Sub-Judge,  Delhi\t for
\nbeing made a rule of the court.\t Ramlal Hans’ engaged
\n15<\/span>
\nthe  appellant\tas  advocate.  The  appellant  In  his\tturn
\nengaged two other advocates to conduct, the actual cases and
\n‘also  filed his vakalatnama.  A copy of the notice sent  by
\nMr.  Whig was filed in the case (Ex.  C-1) but was  not\t yet
\nproved.\n<\/p>\n
On February 24, 196-3 the appellant went for the, inspection
\nof  the\t record\t of the case in the company  of\t his  junior
\nlawyer.\t The file was given by Amrik Singh, the junior clerk
\nof  the\t Bench.\t Amrik Singh then went out of the  room\t but
\nsoon  returned to his seat.  Later he charged the  appellant
\nof having torn 2 pieces from the document (which was Ex.  C-\n<\/p>\n
1)  and\t picked up the alleged pieces from the\tfloor.\t Mr.
\nAggarwal  then arrived on the scene.  The statement  of\t the
\nappellant was recorded.\t The Sub-Judge also obtained reports
\nfrom his junior and Assistant clerks and made a report\tWith
\nthe report he sent the Exhibit said to be mutilated and\t the
\ntwo  pieces  said  to be the torn pieces of Ex.\t  C-1  in  a
\nsealed envelope.  A complaint was also made to the  District
\nJudge  by Sarin.  The District Judge then made a report\t and
\nwrote that the document was important in the case and action
\nwas, therefore, called for.\n<\/p>\n
The  disciplinary committee of the Bar Council of the  Union
\nTerritory  of  Delhi took up the matter under s. 35  of\t the
\nAdvocates  Act.\t The explanation of the advocate was  called
\nfor.  He explained that the charge was false and it was\t due
\nto  the\t ill-will  of Mr. Aggarwal  and\t his  staff  because
\nearlier\t he  had made some serious allegations\tagainst\t Mr.
\nKalra,\tSub-Judge Ill Class in a transfer petition  and\t had
\nalso   started\tcontempt  proceedings.\t According  to\t the
\nappellant this led to hostility between the judges and their
\nstaff and him.\tHe denied that the document was\t imimportant
\nor  that  he  had mutilated it.\t He  asked  inter  alia\t for
\nsummoning  the\ttorn document and the pieces and  they\twere
\nsummoned.   The original document was received but  not\t the
\npieces.\t The District Judge informed the Committee that\t the
\npieces\twere  misplaced and were not found.   The  appellant
\nmaintained that they were put in the same envelope with\t the
\nexhibit and he alleged that they were suppressed to deny him
\na  legitimate defence that they were not a part of the\tsame
\ndocument.\n<\/p>\n
Oral  evidence was recorded.  On the basis of the oral\tevi-
\ndence  of  Amrik Singh, the petitioner was  held  guilty  of
\nhaving\twantonly  mutilated the\t document.   The  petitioner
\nwanted\tto take a size to size photostat of the exhibit\t but
\nhis request was turned down.\n<\/p>\n
As stated already his appeal to the Bar Council of India was
\ndismissed  by the disciplinary Committee of the Bar  Council
\nof  India and later his appeal to this Court  was  dismissed
\nsummarily
\n16<\/span>
\non April 18, 1966 at the preliminary hearing.  Mr. A. K. Sen
\nappeared for the appellant.\n<\/p>\n
The  appellant\tthen seems to have lost his head.   He\tmade
\nsuccessive applications of various kinds.  He filed a review
\npetition on April 23, 1966 before the disciplinary Committee
\nof the Bar Council of India but it was rejected on April 29,
\n1966.  The appellant then filed a writ petition in the\tHigh
\nCourt of Punjab (Delhi Bench) on May 23, 1966 challenging s’
\n3 8 of the Advocates Act and Rule 7 of Order V of the  Rules
\nof   this   Court  as  ultra  vires  Art.  138(2)   of\t the
\nConstitution.\tThe  Writ Petition was admitted and  a\trule
\nnisi  was  issued.  The appellant before this had  filed’  a
\nreview petition in this Court and on September 12, 1966 this
\nCourt issued a notice to the District Judge to find out\t the
\ntorn  pieces.  The District Judge reported on September\t 22,
\n1966  that the mutilated document was a copy of\t a  lawyer’s
\nnotice\tand that only a small piece of I” was  missing\tfrom
\nthe  bottom  of\t the  second sheet.   The  pieces  were\t not
\ntraceable.   He also reported that the junior clerk was\t not
\nsure  that  anything  was written on  the  torn\t pieces\t but
\naccording to his recollection the words ‘True copy’ followed
\nby the signature ‘Vir Bhan’ were written, that this was\t not
\nstated\tby  him\t in his earlier\t statements,  and  that\t the
\nAssistant Clerk also said that according to his recollection
\nsomething ‘Was written in ink on those pieces but could\t not
\nsay  what  it was.  The Supreme Court dismissed\t the  review
\npetition  on September 26, 1966.  The appellant appeared  in
\nperson at the hearing.\n<\/p>\n
The writ petition in the High Court was also dismissed by  a
\nsingle Judge on October 12, 1966.  The order shows that\t the
\noriginal of Ex.\t C-1 was not relied upon by Mr. Vir Bhan and
\nthat he had not attempted to prove the copy, as there was no
\ncontext about the notice.  It was contended before the\tHigh
\nCourt that-there was no motive to tear two tiny pieces\tfrom
\na document which was not in issue.  The High Court seemed to
\nagree with this but speculating as to possible motives\theld
\nthat in view of the evidence of Amrik Singh, the question of
\nmotive\twas immaterial.\t The High Court did not\t go  further
\nthan this into facts.\n<\/p>\n
The  learned  single Judge considered the objection  to\t the
\nconstitutionality  of the rules of this Court and  overruled
\nit.   He held that questions of fact could not be gone\tinto
\nin  view  of  the successive appeals  and  review  petitions
\ndismissed by the appropriate authorities.  A Letters  Patent
\nAppeal\twas filed against the single Judge’s  judgment\t‘and
\norder.\t That  appeal was heard by a Division Bench  of\t the
\nHigh  Court  of Delhi and dismissed on\tDecember  22,  1966.
\nBefore the Division Bench the validity of s. 38
\n17<\/span>
\nof the Advocates Act alone was challenged.  An objection  on
\nmerits\twas rejected because the order of  the\tdisciplinary
\ncommittee of the Bar Council of the Union Territory was said
\nto have merged in the order of the disciplinary committee of
\nthe  Bar Council of India and later in that of\tthis  Court.
\nThe  High  Court  granted a  certificate.   This  Court\t was
\nrepresented at the hearing in as it was made a party to\t the
\nwrit petition.\n<\/p>\n
The appeal filed in this Court as a result (C.A. No. 240  of
\n1967) was dismissed by the Constitution Bench on January  8,
\n1968.\tOnly the validity of s. 38 of the Advocates Act\t and
\nrules  of this Court was considered.  The hearing was on  14
\nand 15 December 1967.  The appellant was in person.  The Bar
\nCouncil\t of  Delhi  and their  disciplinary  committee\twere
\nrepresented by Mr. Avadh Behari Advocate, Mr. P. Rama  Reddy
\nand Mr. A. V. Rangam represented the disciplinary  committee
\nof the Bar Council of India, the Supreme Court (a party) was
\nrepresented by Mr. Purshottam Tricumdas and Mr. 1. N. Shroff
\nand the Attorney General was represented by Mr. P. Tricumdas
\nand Mr. S. P. Nayyar.  The hearing time was taken up by\t the
\nappellant  and Mr. Purshottam Tricumdas, Mr. P.\t Rama  Reddy
\nargued\tfor  10 minutes and Mr. Avad Behari was\t not  called
\nupon.\n<\/p>\n
The appellant then tried another review petition (No. 21  of
\n1968)  on the basis of the fresh evidence and report of\t the
\nDistrict  Judge\t Delhi.\t This Court (on\t December  2,  1968)
\nsummoned  the  record  and allowed the\tpetitioner  to\ttake
\nphotostats  of the Ex.C-I. The appellant also filed  a\twrit
\npetition  under Art. 32 of the Constitution (W.P. No. 69  of
\n1968).\tHe first applied (C.M.P. 1171\/68) for withdrawal  of
\nthe writ petition and then withdrew that application itself.
\nThe  two, matters were placed before the Court on April\t 11,
\n1968  and  at one time it appeared that Shri A. K.  Sen\t had
\nargued\tboth  of them but later Shri A. K. Sen said  he\t had
\nonly  appeared\tin the writ petition and not in\t the  review
\npetition  and  it was still undisposed of.  As a  result  on
\nAugust\t12,  1968,  the review petition was  ordered  to  be
\nplaced\tagain for hearing.  On the Court observing  that  on
\nthe  basis of new material, review should be asked for\tfrom
\nthe Bar Council of India, the review petition was  withdrawn
\non  January  6,\t 1969.\t The  review  application  was\t not
\ndismissed on merits.\n<\/p>\n
The  appellant then went before the Bar Council\t asking\t for
\nreconsideration\t of his case under ss. 44 and 10(3)  of\t the
\nAdvocates Act.\tThe Bar Council passed an order through\t its
\nChairman (Mr.  H. D. Shrivastava).  The Bar Council of India
\nheld that it had no jurisdiction of any kind to reopen\tthis
\nmatter ,although the embarrassment involved in reconsidering
\nthe  matter was removed by the observations of\tthe  Supreme
\nCourt.\t According  to\tthe  Bar  Council  the\tdisciplinary
\ncommittee was not acting
\n18<\/span>
\nas  a  subordinate delegate of the Council and\tthe  general
\npower  to  safeguard  the  interests  of  the  Bar  or\t any
\nindividual member could only refer to such interests as\t had
\nnot ‘been negatived by judicial process under the  Advocates
\nAct.   The  petition  was, therefore,  dismissed.   The\t Bar
\nCouncil, however, went on to observe
\n\t      “………….But\t we  cannot part  with\tthis
\n\t      matter   without\texpressing  our\t  sense\t  of
\n\t      uneasiness  which arises from  the  production
\n\t      before  us  of fresh material  particularly  a
\n\t      photostat\t of the document said to  have\tbeen
\n\t      torn  by\tthe  petitioner.   A  look  at\t the
\n\t      document opens out a .reasonable\tpossibility,
\n\t      that  a  reconsideration by  the\tdisciplinary
\n\t      committee\t of this Council may lead to a\tdif-
\n\t      ferent  result.\tThe  petitioner\t may  if
\n\t      so  advised formally ask for a review  by\t the
\n\t      Disciplinary Committee.”\n<\/p>\n
The appellant then again applied for review of the order  by
\nthe disciplinary committee of the Bar Council of India.\t  In
\na  fairly long order the disciplinary committee declined  to
\nreopen\tthe  case.  The disciplinary committee\tfound  fault
\nwith  the single ,Judge of the High Court of Punjab for\t not
\nrejecting  the\twrit petition on the short ground  that\t the
\nHigh Court could not issue a writ to the Supreme Court.\t The
\ndisciplinary  committee also found it necessary\t to  comment
\nupon  the  order of this Court inquiring from  the  District
\nJudge, Delhi how the pieces kept in safe custody were  lost.
\nThe disciplinary committee also commented upon the action of
\nthe  District Judge in re-examining witnesses who  had\tbeen
\nexamined before.\n<\/p>\n
The  Disciplinary committee pointed out that in\t the  second
\nreview\tpetition  decided by the Committee on  February\t 26,
\n1967,  it refused to take into consideration the  report  of
\nthe  District Judge as it was not evidence in the  case\t and
\nbecause the Supreme Court also did not appear to have  acted
\nupon  it when dismissing the review petition before it.\t The
\nSupreme\t Court’s  order\t was not a speaking  order  but\t had
\nmerely dismissed the review petition summarily.
\nThe  disciplinary committee next consideard how\t the  matter
\ncame  before  them.   They refused to take  into  account  a
\n‘casual\t observation’  of  the\tJudges\tin  the\t course\t  of
\narguments before them in the review petition in this  Court.
\nThey  speculated that parhaps the appellant was\t advised  to
\nwithdraw the review petition which otherwise would have\t had
\nto be dismissed.  The Committee very reluctantly looked into
\nthe  statements of witnesses recorded by the District  Judge
\nwhen he reported about the loss of the two pieces of  paper.
\nThe  matter  was heard and the disciplinary  committee\ttook
\ntime  to  consider their order.\t The  disciplinary  committe
\nheld that in considering review application to
\n19<\/span>
\nthemselves  they should not be over-technical and that\tthey
\nwould have granted review if there was any material on which
\nit could be granted.  They, however, observed :\n<\/p>\n
\t      “…… It is however axiomatic that no  Court
\n\t      or Tribunal can rewrite or alter its  Judgment
\n\t      once a Judgment has been signed and delivered.
\n\t      We could entertain the review petition only on
\n\t      some  ground similar or analogous to those  as
\n\t      mentioned\t in Section 114 and Order 47 Rule  I
\n\t      of the Code of Civil Procedure.  But in  this’
\n\t      case there is no such ground available to\t the
\n\t      petitioner.”\n<\/p><\/blockquote>\n
They  held that as the order of the  disciplinary  committee
\nhad  merged in the decision of the Supreme Court,  a  review
\ngranted by them would be incompetent.  Having held this\t two
\nmembers\t went  on to consider the merits, a  procedure\twith
\nwhich  the third member dissented.  His observations in\t the
\ncircumstances were quite correct.  This is what he said :\n<\/p>\n
\t      “If   what  the  petitioner  says\t about\t the
\n\t      observations  of\tthe Supreme Court  that\t his
\n\t      remedy should be by a Petition for review,  is
\n\t      correct,\tthe  forum  lies  elsewhere  and  we
\n\t      cannot just entertain it.\t In this view of the
\n\t      matter  the  observations\t made  by  the\t Bar
\n\t      Council  of  India in their  resolution  dated
\n\t      12th  July,  1969, which are entitled  to\t our
\n\t      respect, may well be left alone mad (sic) need
\n\t      be commented upon.”\n<\/p><\/blockquote>\n
The  majority of the disciplinary committee however  refused
\nto  be\tguided\tby the observations of the  Bar\t Council  of
\nIndia.\tThey observed that looking at the photostat copy did
\nnot  advance the matter any further and they had  previously
\nseen  the  original  itself and on the\tevidence  they\twere
\nsatisfied that there was some writing on the pieces to\tshow
\nthat  it was a true copy signed by the attestor.   This\t was
\nproved\tby  the\t evidence of Mr. Vir Bhan  accepted  by\t the
\ndisciplinary  committees  of  the two  Bar  Councils.\tThey
\ndiscarded  the fresh evidence’ of the two clerks as  not  of
\nany use to the appellant.  They went to the length of saying
\n\t      “Even   if   these  witnesses   had   entirely
\n\t      contradicted  their  earlier  statements\tthat
\n\t      would    not   have   been   a   ground\t for
\n\t      review. . . .”.\n<\/p>\n
\t      Having said this they went on to say:\n<\/p>\n
\t      “…….. However in the present case we\thave
\n\t      also examined the depositions recorded by Shri
\n\t      Jagjit   Singh   and  we\tdo  not\t  find\t any
\n\t      substantial difference between
\n\t      20<\/span>
\n\t      what  they  had stated earlier and  what\tthey
\n\t      stated before him.”\n<\/p>\n
The  fact  that\t writing on the\t pieces\t was  not  mentioned
\nearlier\t by the clerks was not noticed.\t The  majority\tthen
\nseverely  commented  upon the conduct of  the  appellant  in
\ncharging  the subordinate judiciary with hostility and\theld
\nthis to be ‘frivolous and unworthy of notice.’ They observed
\nas follows
\n\t      “Even  in our earlier Judgment we pointed\t out
\n\t      that a defence of this nature calculated to de
\n\t      deter and intimidate reponsible officers\tfrom
\n\t      discharging  their  public  duty\twas   highly
\n\t      reprehensible.”\n<\/p>\n
They accordingly dismissed the review application expressing
\nthe hope that that would be a close to this chapter.  In two
\nparagraphs  thereafter\tthe majority commented\tstrongly  on
\nother conduct of the appellant in court cases and outside it
\nwhich according to them was deplorable.\t It is obvious\tthat
\nthe  disciplinary  committee  was annoyed  at  the  repeated
\nattempts  of the appellant to have his case reconsidered  by
\nthe superior authorities and the hearing he had got.
\nFrom  the respective orders of the Bar Council of India\t and
\nthe  disciplinary Committee, these two appeals are  brought.
\nWe  granted special leave in the matter arising out  of\t the
\nBar Council’s order limited to the following two questions
\n\t      “(1   )  Whether\tthe  Bar  Council   has\t  no
\n\t      jurisdiction   to\t direct\t  the\tDisciplinary
\n\t      Committee to rehear the matter; and
\n\t      (2)Whether  the Disciplinary Committee  was
\n\t      right in not considering the matter afresh.”
\nIn   the  other\t appeal\t the  question\tis  :  whether\t the
\ndisciplinary  committee\t was right in  refusing\t review\t and
\nwhether we should, therefore, review the matter our  selves,
\nif we are satisfied that the case deserves it.
\nIn so far as the jurisdiction of the Bar Council of India is
\nconcerned we think the Bar Council acted correctly when they
\nrefused\t to  review  the matter\t themselves.   For  the\t Bar
\nCouncil\t to do so would be an exercise of  appellate  power.
\nThat  power the Bar Council of India does not possess.\t But
\nthe  Bar  Council  of India was right  in  saying  that\t the
\nquestion raised before themselves was sufficiently important
\nfor reconsideration and recommending it for  reconsideration
\nto their Disciplinary Committee.\n<\/p>\n
The provisions of the Advocates Act are no doubt precise  in
\nthe  matters of appeals and review.  In all cases  tried  by
\nthe
\n21<\/span>
\nDisciplinary Committee of the Bar Council of a State  (which
\nterm  includes the Union Territory of Delhi) an appeal\tlies
\nto the Bar Council of India.  The appeal is, however,  heard
\nby  the Disciplinary Committee of the Bar Council  of  India
\nand  they dispose of it as they deem fit.  The Act does\t not
\nsay that the Disciplinary Committee is a reporting body\t and
\nthe  executable\t order must be made by the  Bar\t Council  of
\nIndia.\tThis is made clear by the section that follows.\t  It
\nspeaks of an appeal-, to this Court against the order of the
\nDisciplinary Committee.\t It an order of the Bar Council were
\nintended to be interposed (whether endorsing or refusing  to
\nendorse\t the order of the Disciplinary Committee) one  would
\nexpect the appeal to this Court to lie against the order  of
\nthe  Bar Council.  But in the initiation of the\t proceedings
\nand  again  in\tthe matter of appeal,  the  Bar\t Council  is
\nmentioned and not the disciplinary Committee.  Indeed  under
\nss.  35(1)  and\t 36(1) the Bar Council of the  State  or  of
\nIndia,\tas the case may be, must be satisfied that  a  prima
\nfacie case exists before they will refer the matter to their
\nDisciplinary  Committee.   This\t is  in\t keeping  with\t the
\njurisdiction of the Bar Councils of the States laid down  by
\ns.  6 (1 ) (c) under which Bar Council is to  entertain\t and
\ndetermine cases of misconduct against advocates on its rolls
\nand under cl. (d) with the duty to safeguard the rights\t and
\nprivileges  and\t interests of advocates on  its\t rolls.\t  In
\nregard to the Bar Council of India the same position obtains
\nunder  s.  7  (1) (d) (which is\t ipsissima  verba  with\t the
\ncorresponding  provisions of s. 6) read with s.\t 7(1)  which
\nlays  down the jurisdiction of the Bar Council of  India  to
\ndeal  with and dispose of any matter arising under the\tAct.
\nTherefore   the\t general  superintendence  of\tethics\t and
\netiquette  of the profession and questions of misconduct  of
\nthe  members  are  not wholly outside the  ken\tof  the\t Bar
\nCouncils  of  the State or of India and\t are  always  within
\ntheir respective jurisdictions.\n<\/p>\n
Next,  the appeal to this Court is not a restricted  appeal.
\nIt  is not an appeal on law alone but also on fact.   Indeed
\ns.  38 gives the Supreme Court jurisdiction to pass in\tsuch
\nappeals any orders it deems fit.  Therefore the\t appropriate
\nBar  Council  or  this\tCourt do not  act  wrongly  if\tthey
\nentertain subsequent petitions from a person whose case\t has
\nbeen dealt with by a disciplinary committee.
\nThe power of review is expressly granted to the Disciplinary
\nCommittee of the Bar Council which may on its own motion  or
\notherwise review any order passed by it.  The word otherwise
\nis  wide enough to cover a case referred by the Bar  Council
\nfor review.  There is a proviso which makes the Bar Council.
\nof India the final judge because no order of a\tdisciplinary
\ncommittee of a
\n22<\/span>
\nState Bar Council on review has effect unless it is approved
\nby the Bar Council of India.\n<\/p>\n
The powers of review are not circumscribed by the Act.\t The
\nanalogy of the Civil Procedure Code must not be carried\t too
\nfar.   Such powers may ‘be exercised in a suitable case\t for
\nor  against  an\t advocate even after  the  matter  has\tgone
\nthrough\t the  hands of the Disciplinary\t Committee  at\tsome
\nstage  or even through this Court.  These matters  are\talso
\nnot  governed  by  the\tanalogy of  autre  fois\t convict  or
\nautrefois   acquit  in\tthe  Code  of  Criminal\t  Procedure.
\nDisciplinary  proceedings against a lawyer involve not\tonly
\nthe particular lawyer but the entire profession.  The  repu-
\ntation\tof  the\t legal profession is the sum  total  of\t the
\nreputation  of the practitioners.  The honour of the  lawyer
\nand   the   purity  of\tthe  profession\t are   the   primary
\nconsiderations and they are intermixed.\n<\/p>\n
During the hearing we gave an illustration which we may also
\ngive  here.  Suppose an advocate is charged with  embezzling
\nthe  money of his client.  The advocate pleads that he\tpaid
\nthe money in cash to the client and obtained his receipt but
\nthe  receipt  is  misplaced and he cannot find\tit.   He  is
\ndisbelieved by the Disciplinary Committees and even by\tthis
\nCourt.\t Subsequently  he finds the receipt  and  wishes  to
\nclear  his good name.  The matter can be gone into again  on
\nthe  fresh material.  It is not only his right but also\t the
\nduty  of  the those including this Court to  reconsider\t the
\nmatter.\t The Bar Council in any event can restart the matter
\nto  clear  him whether before any of the  authorities  which
\ndealt with the matter before.’ The facts in the illustration
\nmay  be\t reversed  to see the  converse\t position  where  an
\nadvocate gets off on a false plea of not having received the
\nmoney at all, if he can be successfully confronted with\t his
\nown receipt which the client had misplaced and could not lay
\nhands upon in the first instance.\n<\/p>\n
From this it follows that questions of professional  conduct
\nare  as\t open as charges of cowardice  against\tGenerals  or
\nreconsideration\t of  the conviction of person  convicted  of
\ncrimes.\t  Otherwise how could the Hebron brothers get  their
\nconviction  set aside after Charles Peace confessed  to\t the
\ncrime for which they were charged and held guilty ?
\nThe  fact  of  the  matter in this case\t is  that  too\tmuch
\nemphasis was laid on the oral evidence of a clerk who  alone
\nRaid that he had seen the appellant tear two pieces from Ex.
\nC.I.  The Advocate’s denial was not accepted although  there
\nwas  word  against matched the tear. There was\ton  evidence
\nthat  the  pieces found on the floor matched the  tear.\t  No
\nwitness\t spoke\tof  having  taken  the\telementary  care  of
\nmatching the pieces with Ex.  C-I.  Indeed the pieces
\n23<\/span>
\nhaving been lost the only corroboration regarding the pieces
\nhas  disappeared.   The only corroboration now is  that\t the
\nedges of Ex. C-1 show such a tear.\n<\/p>\n
The question is whether this by itself is sufficient.  There
\nis  no evidence against the appellant except that  of  Amrik
\nSin-h.\t It  is true that there is  no\tpersonal  allegation
\nagainst\t him  of harbouring any grudge or  hostility  beyond
\nsaying\tthat  the  staff  of the  Courts  were\tagainst\t the
\nappellant.   As against this, one consideration is what\t was
\nthe  gain to the appellant by tearing the tiny pieces  ?  We
\nshall  presently show how tiny they were.  The charge  is  a
\nserious\t one;  and we have to see the matter  in  the  whole
\nsetting of the evidence.  The document said to be torn is  a
\ncopy  of  a  notice which Sarin’s Counsel had  sent  to\t the
\nopposite  side.\t The counsel for Sarin said that he had\t not
\nproved\tthe document.  Further the original notice could  be
\nsummoned.  Exhibit C-1 was in two sheets 30.5 cm. x 20.5 cm.
\nand 34.6 cm. x 21.5 cm. The second sheet was extraordinarily
\nlong  and  its\tedges  appear  very  much  frayed.   It\t was
\nsuggested  at  the hearing it must have protruded  from\t the
\nrest of the file and thus got damaged in the handling of the
\nfile.  This was not given due weight.\n<\/p>\n
We  have  examined the document carefully.  It is  a  carbon
\ncopy of a notice.  The document ends thus :\n<\/p>\n
Note  :\t Copy  of this notice’ is being\t sent  under  postal
\ncertificate to your wife.\n<\/p>\n
Yours faithfully,
\nThe  tear  occurs 1.5 cm. to the left of ‘ficate’  and\tends
\nbelow\tthe  letter  ‘A’  in  ‘postal’.\t  The\tletters\t  of
\n‘,faithfully’ are missing except for the head of ‘f’ and  so
\nalso  letters ‘der’ in ‘under’ and parts of ‘P’ and  ‘o’  in
\n‘postal’  are  missing.\t The complainant  claimed  that\t the
\ndocument  had  an  attestation ‘true  copy’  followed  by  a
\nsignature and that it had been torn out.  The two clerks who
\nhad  seen the pieces do not definitely say that\t the  pieces
\nhad any writing and as the pieces have disappeared we cannot
\nget  corroboration.  They had originally not said  this\t but
\nnow at a later stage they have deposed about the writing  on
\nthe  pieces.  We have therefore, done the best\tto  discover
\nthe truth.  This is the result of our observations :
\nThe  document  is a rectangular foolscap sheet,\t rather\t old
\npaper which is frayed along the edges.\tAs the fraying edges
\nwere  falling  off  we have secured  them  with\t transparent
\nscotch\ttape.  One piece actually fell off when\t the  papers
\nwas  being examined by us but the piece has been secured  in
\nsitu  with  scotch tape.  Another piece found  in  the\tfile
\ncould not be matched’
\n24<\/span>
\nand has been secured in the margin with scotch tape so\tthat
\nit may not be lost.  It-belongs to the same paper.  Now\t for
\na description of the paper.\n<\/p>\n
Fortunately the machine cut edges are available on all\tfour
\nsides  enabling us to measure the paper and to find out\t the
\nexact  .measurements of missing parts.\tThis will enable  us
\nto  find  out if an attestation and a signature\t could\thave
\nbeen written at all on these papers.  It is obvious that the
\ntearing\t if deliberate, as .is suggested, must have been  to
\ntear  out  not the blank space left .on the  bottom  of\t the
\ntypewritten   portion\tbut  of\t some  writing,\t  typed\t  ar
\nmanuscript.\n<\/p>\n
The  paper is exactly 34.6 cm. x 21.5 cm.  As no portion  is
\nalleged\t to be torn from the top or the sides we may  ignore
\nthe measurement of the breadth except to compare it with the
\ntear.\tThe  tear today is found along 17.5 cm. out  of\t the
\ntotal breadth ,of 21.5 cm.  We have already said that except
\nfor  1.5  cm. to the left of the letters ‘ficate’  the\ttear
\nfalls directly below the .typed portion and that is 15.5 cm.
\nin length. 7.5 cm. are below the portion where the last line
\nof  typing  ‘ficate’  to your wife’  and  the  words  ‘yours
\nfaithfully’  occur.  The bottom of these typed\tletters\t are
\nexactly\t 34.4 cm. from the top leaving a strip\twhich  would
\nbe  .2 cm.  In other words out of a tear of 17.5 cm., 8\t cm.
\nallow only a space of .2 cm. for any writing.
\nNow  for  the remaining 8 cm.  This is made up\tof  2.5\t cm.
\nbelow  ‘tal  certi’ which is almost whole and  there  is  no
\nwriting on this portion. That leaves a tear of 5.5  cm.
\nmeasures lengthwise where thereis no typing on top.  This is
\nmade up of 3 traingular portionsjoined\tby  the\t .2   cm.
\nstrips\tbelow  typed portions.\t1 st triangle is 2  cm.\t iin
\nlength\twith  1 cm. perpendicular from apex  to\t base.\t The
\nsecond\tis 3.2 cm. base with a perpendicular of 1  ,cm.\t and
\nthe third is 2.8 cm. by 1 cm.\n<\/p>\n
Therefore out of the total length of 17.5 cm., 7.5 cm. is  a
\nstrip uniformly of .2 cm.  There are 3 triangles, in  length
\nrespectively  2\t cm., 3.2 cm. and 2.8 cm.  with\t the  height
\nalmost\tat the centre in each case I cm.  The  photostat  of
\nthe document is an annexe and can be seen also.\t We took the
\nmeasurements from the original.\t It is easy to see how small
\nwill  be  space for writing.  The three triangles  of  which
\nonly  2 could be hold to be torn by the appellant could\t not
\nhave contained the words of attestation and signatures.\t The
\none  of\t the extreme left is so situated that no  one  would
\nwrite  there  an  attestation.\t The  three  triangles\t are
\nseparated by 4 cm. and 3.5 cm. and it is impossible to think
\nthat  the  attestation was written in one triangle  and\t the
\nsignature in another for there was not enough space to write
\nthem
\n25<\/span>
\none  above  the other even if one could cramp in  one  line.
\nFurther\t with  the  typing having gone to .2  cm.  from\t the
\nbottom\t anyone\t wishing  to  write  an\t attestation   would
\nordinarily write it in the margin where plenty of space\t was
\navailable  and that is the usual course lawyers\t adopt\twhen
\nthe  writing  goes  right  down\t to  the  bottom.   We\tare,
\ntherefore, satisfied that there was no writing on the pieces
\nand  the halting testimony of the 2 clerks should  not\thave
\nbeen  accepted\twithout corroboration.\t They  said  nothing
\nabout it when they were first examined.\n<\/p>\n
The  sum total of our observations may now be  stated.\t The
\ndocument  was merely a copy of which the original  could  be
\nsummoned.   One\t sheet\twas unduly long and  was  likely  to
\nprotrude  from\tthe file of papers and thus  liable  to\t get
\nfrayed.\t  It is frayed and the paper is showing\t more  tears
\ntoday.\tThe typing had gone to the very bottom of the  paper
\nand  there  was not sufficient space to write in  a  natural
\nhand the attestation and to sign it.  There was blank  paper
\nin  the margin where the attestation could  be\tconveniently
\nwritten and signed.  The document was not necessary for\t the
\ndecision of the case and Mr. Vir Bhan had not even attempted
\nto  prove  it.\t It  was being inspected  to  find  out\t the
\noriginal  case\tof the claimant after the case had  gone  to
\narbitration  and  there\t was an award.\tNothing\t was  to  be
\ngained by tearing it or even by tearing out the\t attestation
\neven if there was. one.\t of course it would be improper even
\nto to tear out the blank portion but no one indulges in such
\na  silly  and  useless act.  There  was\t serious  allegation
\nagainst a judge of the court and there was a possibility  of
\nthe appellant being the target of hostility and the evidence
\nagainst\t him was of a single clerk.  There was word  against
\nword.\n<\/p>\n
The question that arises is what are we to do.\tWe have held
\nabove  that  the disciplinary committee could  be  asked  to
\nreconsider the matter by the Bar Council.  The order of\t the
\ndisciplinary  committee\t does show that although  they\theld
\nthat  the Bar Council had acted without\t jurisdiction,\tthey
\nwent  on  to express their satisfaction with what  they\t had
\nalready\t done.\tThe reexamination was not  made\t objectively
\nbut  with  the intention of reaffirming\t their\tdecision  by
\nevery argument for it.\tNo attempt was made to find  whether
\nthe  circumstances  were such that the .appellant  could  be
\nsaid to have proved satisfactorily the contrary of what\t was
\nheld  or  had created sufficient doubt in the  matter.\t The
\nearlier findings were affirmed when there was no need to  do
\nso as the petition for review was held incompetent.
\nAt the hearing before us the Bar Council of India applicared
\nand  supported the case of the advocate.  Mr.  Natesan\tsaid
\nthat  in the opinion of the Bar Council, it would be  proper
\nfor  this Court to go into the matter.\tPreviously  the\t Bar
\nCouncil had
\n26<\/span>
\nprobably  supported  the case against  the  appellant.\t The
\nstand of the Bar Council in the case before us was this
\n\t      “The   Disciplinary  Committee  of   the\t Bar
\n\t      Council,\t while\tfinding\t that  it   has\t  no
\n\t      jurisdiction  to review the matter in view  of
\n\t      the prior appeal to this Court, has gone\talso
\n\t      into the merits of the case, examined it\tela-
\n\t      borately with reference to the material stated
\n\t      to  be  new matter and has come  to  the\tsame
\n\t      conclusion.   The question that now arises  is
\n\t      whether  the  Supreme  Court  can\t review\t the
\n\t      matter   itself  in  this\t appeal\t  when\t the
\n\t      Disciplinary Committeehad no jurisdiction, and
\n\t      set  aside the order made by the\tDisciplinary
\n\t      Committee\t  on  the  merits.   It\t may  be   a
\n\t      different thing if this Court now reviews\t the
\n\t      order  in\t the light of the  materials  placed
\n\t      before  the Court after the production of\t the
\n\t      original\tdocument  stated to have  been\ttorn
\n\t      which  ex facie shows that it could  not\thave
\n\t      been deliberate or wanton”.\n<\/p>\n
Another body of lawyers, namely, the Bar Association of\t the
\nSupreme Court sought permission to intervene and were heard.
\nMr.  A.\t S. R. Chari on behalf of the  Association  strongly
\nsupported the advocate’s case.\tThus we have the entire\t Bar
\nof the country and the entire Bar of this Court\t unanimously
\nasking this Court to go into the matter.\n<\/p>\n
It  appears to us, therefore, that the Bar Council of  India
\ndoes  not wish to oppose the review by us of our  order\t and
\nindeed\tthey  invite us to grant relief\t to  the  appellant.
\nOrdinarily  we would have been unwilling to grant  a  review
\nafter  this  Court  had\t declined to do\t so  on\t in  earlier
\noccasion.  But the Circmstances are different.\tOur view  of
\nthe matter is also that the charge of deliberately and\twant
\nonly mutilating an important document in a judicial file has
\nnot been as clearly made out as one would wish.\t This  Court
\non earlier occasions, taking the fact,,-, from the order  of
\nthe  disciplinary  committees, declined to interfere  as  no
\nquestion  of  law  was involved.   It  decided\tthe,  appeal
\nsummarily  without issuing notice or sending for the  record
\nThere  is  force  in the contention  that  aTi\tadvocate  is
\nentitled  to a full appeal on facts and law under s.  38  of
\nthe  Advocates Act.  Since the disciplinary jurisdiction  of
\nthe High Court has been taken away a right of appeal to this
\nCourt has been substituted.  This Court must in all cases go
\ninto  the matter to satisfy itself that justice has been  by
\nthe disciplinary committee or committees. tees.
\nWe  find some unusual circumstances facing us.\t The  entire
\nBar  of\t India are of the opinion that the case was  not  as
\nsatisfactorily\tproved as one should be and we are ‘also  of
\nthe same
\n27<\/span>
\nopinion.  All processes of the court are intended to  secure
\njustice\t and  one such process is the power of\treview.\t  No
\ndoubt frivolous reviews are to be discouraged and  technical
\nrules  have been devised to prevent persons  from  reopening
\ndecided cases.\tBut as the disciplinary committee themselves
\nobserved  there\t should not be too much\t technicality  where
\nprofessional honour is involved and if thereis\ta  manifest
\nwrong  done  it is never too late to undo  the\twrong.\tThis
\nCourt  possesses under the Constitution a special  power  of
\nreview\tand  further  may  pass any order  to  do  full\t and
\neffective  justice.  This Court is moved to take action\t and
\nthe  Bar Council of India and the Bar Association  of  India
\nare unanimous that the appellant deserves to have the  order
\nagainst him disbarring him from practice set aside.
\nLooking\t at  the  matter  for ourselves\t we  find  that\t the
\ndocument  said to be mutilated was not needed for the  case.
\nIn any event it was only a carbon copy and not an  original.
\nNo  part  of  the  typed portion  was  damaged\texcept\tvery
\nslightly.   The\t tear in two places equal to a\tthird  of  a
\nsmall  postage stamp are the subject of the charge.  In\t our
\nopinion\t there was most probably no writing there  as  there
\nwas  hardly any space available and the whole of the  margin
\nwas available to write the attestation of ‘true copy’.\t The
\nclerks did not speak of any writing at first and now too  in
\na  very halting, manner.  No steps were taken to  match\t the
\nalleged\t pieces with the tears and the pieces have not\tbeen
\npreserved.   Thus there is the word of Amrik  Singh  against
\nthat of the appellant.\tThere was a background of  hostility
\nwhich the appellant had created by his aggressive action  in
\nother  cases.\tWhether he handed the paper  roughly  and  a
\npiece  came off which lie threw down without noticing it  or
\nthe  paper  gave  way and a piece fell (as it  did  when  we
\nhandled it) it is not possible to say with definiteness.  We
\nfind it difficult to believe that this multilation,  without
\nany rhyme or reason, was done with a sinister motive.\tThis
\nis  the unanimous view of the entire Bar of  India  speaking
\nthrough Counsel.\n<\/p>\n
Our duty is clear.  We would have paused to consider the law
\napplicable  to reviews in such matters but we do  not  think
\nshould ascertain it in this case.  This matter is one of the
\nethics of the profession which the law has entrusted to\t the
\nBar  Council of India.\tIt is their opinion of a case  which
\nmust  receive due weight.  The Bar Council thinks  that\t the
\ndecision against the appellant is unsustainable.  We see  no
\nreason to differ from them.  We accordingly grant review  in
\nthis  case and set aside the order disbarring the  appellant
\nfrom  practice\twhich had been passed. against\thim.   There
\nshall be no order about costs.\n<\/p>\n
G.C.\n<\/p>\n
28<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India O. N. Mahindroo vs Distt. Judge, Delhi & Anr on 4 September, 1970 Equivalent citations: 1971 AIR 107, 1971 SCR (2) 11 Author: M Hidayatullah Bench: Hidayatullah, M. (Cj) PETITIONER: O. N. MAHINDROO Vs. RESPONDENT: DISTT. JUDGE, DELHI & ANR. DATE OF JUDGMENT: 04\/09\/1970 BENCH: HIDAYATULLAH, M. (CJ) BENCH: HIDAYATULLAH, M. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-37079","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nO. N. Mahindroo vs Distt. Judge, Delhi & Anr on 4 September, 1970 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/o-n-mahindroo-vs-distt-judge-delhi-anr-on-4-september-1970\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"O. N. Mahindroo vs Distt. 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