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The Government Pleader Vs. L.B. Bhopatkar - Court Judgment

LegalCrystal Citation
Decided On
Case NumberCivil Aplication No. 864 of 1927
Reported inAIR1928Bom338; (1928)30BOMLR934; 113Ind.Cas.519
AppellantThe Government Pleader
RespondentL.B. Bhopatkar
.....80-pleader using objectionable language to a magistrate in a notice written on behalf of his client.;a pleader, in addressing a notice on behalf of his client to a magistrate, under section 80 of the civil procedure code, stated ;-;'you do not seem to have realised the gravity of the situation wherein n witness is to be prevented from attending the court at the stated time, and yet he is to be prosecuted for not complying with the summons. it is in fact making the refutation of respectable witnesses dependent upon your sweet will and whim... he was not bound to wait indefinitely till you chose to call him for examination, a witness's time is as much valuable if not more, than the time of the court... obviously enough, your order was not only arbitrary and high-handed, but was an article in a newspaper, there is a certain amount of publicity involved in such government pleader a notice.6. now, in this notice, 1 think, paragraph 4 is certainly one that mr. bhopatkar should have taken care to have put in a very form. we are not concerned herewith the question whether the magistrate improperly excludes persons from his court, contrary to the provisions of section 252 of the criminal procedure code. it may or may not be the ease that he does not properly observe the provisions of that section. but the question is really irrelevant to the point whether the magistrate exceeded his lawful powers in issuing a warrant for the arrest of mr. davare and in making a complaint against him in accordance with the provisions of section 476 of the criminal procedure code,.....

Fawcett, J.

1. The facts out of which this application arises are briefly as follows :-

2. One Mr. Davare was summoned as a witness in the Court of the City Magistrate, Poona. The summons required him to attend at 11 a.m. on May 27, 1927, in order to give evidence in a criminal case. According to Mr. Davare's affidavit in these papers, he attended in obedience to the summons at about five minutes to 11, and ascended the staircase leading to the City Magistrate's Court and was stepping into it, when a policeman, who was doing duty at the head of the staircase,-apparently acting under the Magistrate's order-rudely prevented him from entering the Court. He says that he waited for about half an hour and then left, as he had business to attend to in the District Court; and that, as soon as that was over, he returned to the City Magistrate's Court at about 2-30 p.m. He then learnt that he had been called at about 12-30 p.m. by the Magistrate, who, finding him absent, had issued a warrant against him. He saw the Magistrate, who had him bound over to appear next day. He appeared accordingly and gave evidence in the case, but on the same day, the Magistrate made a complaint against him under Section 174 of the Indian Penal Code, for having disobeyed the summons by not attending the Court in obedience to it. He was tried for this offence by a Bench of two Magistrates, but was acquitted; and an appeal from that decision was summarily dismissed by this Court. The ground of that decision was that as Mr. Davsre had, in fact, attended the Court and tried to see the Magistrate in order to be excused from waiting and also had returned to the Court, there was no intentional disobedience. The acquittal was on July 4, and on July 20, the opponent, Mr. Bhopatkar, sent a notice to the City Magistrate, who is Mr. Fleming, under Section 80 of the Civil Procedure Code, intimating that unless he paid his client, Mr. Davare, Rs. 1,000 as compensation, his client would be compelled to take such legal steps against him as he might be advised. The application is that the language used in the notice is far too strong, as also unjustifiably and unnecessarily insulting; that it is calculated to bring the administration of justice into contempt and is full of unwarrantable and unfair attack on a judicial officer; and that the conduct of the opponent is, therefore, in excess of the privilege of the Bar and amounts to improper conduct and contempt of Court.

3. The learned Advocate General has appeared in support of this application for the exercise of our disciplinary powers under Section 25 of the Bombay Pleaders Act XVII of 1920, while Mr. Coyajee for the opponent has argued that there has been no improper conduct or other reasonable cause for the exorcise of our disciplinary powers. There are one or two minor points which, I think, may first be disposed of.

4. Mr. Coyajee contended that this? notice under Section 80 was merely on the footing of a private letter to Mr. Fleming, and that it was not on a par with an application submitted by Mr. Bhopatkar on behalf of a client, concerned in a criminal proceeding before the Magistrate. It may be conceded that it is not on quite the same footing as an application in the course of a trial; but at the same time, in my opinion, it cannot be said that the notice is on the same footing as a mere private letter to Mr. Fleming in his personal capacity. In the first place, the notice is one which Section 80 of the Code requires in the case of an intended suit against a public officer in respect of any act purporting to be done by that public officer in his official capacity, and the contents of the notice had reference to acts of Mr. Fleming, which purported to be done in the exercise of his judicial office as City Magistrate of Poona. Therefore in my opinion the distinction which is sought to be made has plainly no sound basis. On the other hand, I am quite willing to concede what Mr. Coyajee has very ably put before us that his client wants to proceed against a judicial officer on the allegation that that officer has committed acts which were in excess of his lawful powers, or Government otherwise beyond his jurisdiction, so that he loses the protection which he might otherwise have under the Judicial Officers' Protection Act XVIII of 1850; and that the pleader, who drafts and sends notice under Section 80 on behalf of such a client, is entitled to put forward that cause of action and the allegation that an act was unwarranted or beyond jurisdiction. I am very anxious that anything I may say should not be taken as, in any way, intended to derogate from what a pleader or an attorney might properly write in the exercise of his duty to his client in a notice under Section 80. But, at the same time, as was pointed out in Government Pleader v. Tatke (1922) 25 Bom. L.R. 264 which in that respect merely follows what has been often laid down, a pleader owes not only a duty to his client, but has also a duty towards the Court of which he is an officer; and therefore there are certain limits which he must be careful to observe in framing the contents of such a notice. This is very much what has been already and by the late Chief Justice in his judgment in that ease. For he refers to the point of a notice under Section 80 and says (p. 267):-

But whatever his instructions were, it would have been his duty as a pleader to send that notice strictly in accordance with the terms of that section.

5. In saying that, I think, he clearly meant not merely that the terms of the notice must be such as conform with the provisions of Section 80, viz., that it should state the cause of action and so on, but is referring to what was the subject-matter of that decision, viz., the question of a pleader not failing in his duty towards the Court. As there has been such a recent decision which is binding upon us, it is quite unnecessary for me to discuss the question whether such failure will amount to a reasonable cause justifying disciplinary action under Section 25 of the Bombay Pleaders Act. There is clear authority for that proposition. I think that it is clearly a matter in regard to which this Court should, upon complaint, be careful to see that pleaders do not exceed the proper limits of advocacy that have been laid down. Mr. Coyajee has cited cases, such as Bhaishanker v. L.M. Wadia (1899) 2 Bom. L.R. 3 and In re Nagarji Trikamji I.L.R (1894) Bom. 340 where the remarks made have reference to what is permissible, where a counsel is actually conducting a case in Court; and, of course, there are considerations which render it inadvisable not to be too strict, if in the heat of argument, he has used some words that are objectionable. But the present is an entirely different case, The pleader here was not conducting a case in Court, but was acting as a solicitor who drafts a letter for his client, He had no excuse of hurry in drafting the terms of the notice, for there is nothing to show that there was not plenty of time for the pleader to consider how he should draw it up. I would adopt some expressions that were used in a case to which Mr. Coyajee drew our attention, Reg. v. Kashinath Dinkar (1871) 8 B.H.C.R.146 viz., a counsel has a knowledge of what is, or what is not relevant, superior to that of his client, which should be sufficient to restrain him within due bounds in expressing his opinion; and it is the duty of counsel towards their clients to use their own judgment and experience and discretion; and as the result, whatever be their instructions, to exclude all topics and observations of which the ease does not properly admit. Now, applying these principles to the present application, I certainly would not be inclined to say that there was' improper conduct on the part of Mr. Bhopatkar, constituting 'reasonable cause' within the meaning of Section 25 of the Bombay Pleaders Act, if there had been merely one expression, to which objection might be taken, such as, 'A witness's time is as much valuable if not more, than the time of the Court.' If there had been a complaint merely in regard to a remark of that kind, I should say that there was nothing that was really so objectionable as to constitute 'reasonable cause' within Section 25. I am prepared to concede that the time of a business-man, who is making money, may be more valuable than the time of a Judge from a purely financial point of view. But this notice goes beyond that and does not keep within the proper limits of restraint, which a pleader, with his superior knowledge and experience, should observe in addressing a notice to a judicial officer. As I have already stated, he may quite legitimately say that the officer has done acts, which his client submits are in excess of his powers, and so on; but he should be careful to express that in a form which will not be unduly insulting or opprobrious to the officer, who has to receive the notice. It is not a case of a mere letter that Mr. Coyajee says could be consigned to a, waste paper basket, for it threatens litigation, unless the officer complies with the demand made in it, and it is a necessary preliminary to a suit, If proceedings are taken, it has to be put is evidence, and the officer, if he wants Government to defend the suit, will have to submit the notice with the other papers in the case. Though it is not on the same footing as an article in a newspaper, there is a certain amount of publicity involved in such Government Pleader a notice.

6. Now, in this notice, 1 think, paragraph 4 is certainly one that Mr. Bhopatkar should have taken care to have put in a very form. We are not concerned herewith the question whether the Magistrate improperly excludes persons from his Court, contrary to the provisions of Section 252 of the Criminal Procedure Code. It may or may not be the ease that he does not properly observe the provisions of that section. But the question is really irrelevant to the point whether the Magistrate exceeded his lawful powers in issuing a warrant for the arrest of Mr. Davare and in making a complaint against him in accordance with the provisions of Section 476 of the Criminal Procedure Code, for Mr. Fleming was not holding his Court at the time Mr. Davare says he tried to see him; and there is, in my opinion, an introduction of this question in a way that is objectionable and, as Mr. Bhopatkar must have known, unnecessary for the purpose of the notice under Section 80 of the Act, He must be aware of the ruling in Jehangir M. Cursetji v. Secretary of State I.L.R (1902) Bom. 189 : 5 Bom. that a notice under Section 80 is sufficient if it substantially fulfils its object in informing the parties concerned generally of the nature of the suit intended to be filed, including of course a statement of the relief which is claimed; and it would have been quite sufficient to have stated the facts that his client had attended Mr. Fleming's Court in accordance with the summons, that he had been prevented by the police officer in his attempt to see the Magistrate and so on, and that the Magistrate had exceeded his powers in prosecuting him, although his client had taken due steps to obey the summons. But, beyond this, in paragraph 5 the pleader allows himself to make statements which, he must know, are not legally correct. He there says :-

You should not have asked my client to attend the Court at 11 a.m., when he was not going to be examined at that time. He was not bound in law to wait indefinitely till you chose to call him for examination. A witness's time is as much valuable if not more, than the time of the Court.

This is a statement which cannot be sustained. The witness-summons necessarily fixes a time when he should attend, and generally that is the time when the Court opens. But a pleader knows that a witness is not entitled to go away, merely because he is not called upon to give evidence exactly at the time stated in the summons. It is his duty to wait till he is called on to give evidence unless there are urgent reasons to the contrary, such as illness, or unless he gets permission from the Magistrate to absent himself. That certainly is a paragraph which Mr, Bhopatkar, from his knowledge as a pleader, should not have inserted, Again in paragraph 4, when he refers to his client being prevented from going into the Court-house as high-handed, arbitrary and ultra vires, ho ignores the fact that the Magistrate was not present at the time, and that if the police constable acted wrongly, it would not necessarily be an act which could be imputed to Mr. Fleming. We are not concerned with the merits of the case; and I do not wish to say anything that might prejudice, in any way, the decision of the questions that may arise in any suit that Mr. Davare may bring. But, at any rates I think it is clear that Mr. Bhopatkar himself must have been aware that in paragraph 4 he went beyond the proper limits of a pleader's privilege, especially when he used the expression about the reputation of respectable witnesses being dependent upon the Magistrate's sweet will and whim.

7. Then paragraph 6 says that Mr. Fleming, quite in defiance of the law on the point and the powers and jurisdiction vested in him by law and Government, ordered the prosecution of Mr. Davare under Section 174 of the Indian Penal Code. I do not say that, so far as the notice was intended to allege that his acts were unwarranted and were not covered by the Judicial Officers' Protection Act, that was clearly objectionable. But, when he goes on to Bay:

Obviously enough, your order was not only arbitrary and high-handed, but also spiteful and malicious.

the pleader, in fact, identifies himself with the allegations of his client. It was quite unnecessary to say 'obviously enough', he could have said 'my client submits in the circumstances' or some such phrase. This animus h emphasized when we come to paragraph 8 where the notice states :

From what is stated above, you will clearly see the enormity of your own acts.

8. Here, again, the pleader, who signs and sends the notice, associates himself with the imputations of high-handed, arbitrary con-duct and be on; and to my mind, there has been a clear excess of the privilege of the Bar, amounting to improper conduct as alleged in the application. The legal profession in this Presidency has had clear notice of the rule laid down, not for the first time, in Tatke's case; and therefore, I think that, after giving due weight to the arguments that Mr. Coyajee has advanced, we must hold that this is a case where there is reasonable cause for the exercise of our disciplinary powers. I do not think, however, that we need go so far as to suspend Mr. Bhopatkar's sanad, because is not a case of mere vulgar abuse of a Magistrate, as in Tatke's case, nor is it one of dishonesty or gross negligence; and in all the circumstances, I think it would meet the ends of justice, if we reprimand Mr. Bhopatkar and order him to pay the costs of this application on the Original Side scale. I would order accordingly.

Mirza, J.

9. I agree.

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