Lawerence Jenkins, C.J.
1. This is an application under Section 56 of Regulation II of 1827. whereby it is provided that a pleader accused of a criminal offence, or guilty of misbehaviour or neglect of duty, shall be liable to be suspended or dismissed.
2. On the basis of that section this petition has been presented by the learned Government Pleader in the ordinary way, praying that the Court will call upon Mr. Maganlal Choksi, whose conduct has been impugned, to show cause, why he should not be suspended or dismissed, or why such other order should not be passed as may seem meet in the exercise of this Court s disciplinary jurisdiction. Mr. Choksi has been practising and still practises as pleader in the Broach District and the petition charges him with conduct bringing him within the disciplinary powers of this Court in five particulars In other words there are five charges brought against him.
3. The first charge is that he altered a pursis. I think that it was wrong of him to have done that. At the same time by altering the pursis he made no appreciable difference in its effect and the alteration was made in the presence of the pleader on the other side. His conduct was at the time the subject of enquiry with the result that the Subordinate Judge held that his action was highly reprehensible, but excused him on his tendering an unqualified apology and expressing regret for what he had done.
4. I think that was ample. I do not mean to excuse what he has done, but I think the pleader's conduct in this matter has been adequately dealt with.
5. The second charge, is that he presented a darkhast and filed along with it a certified copy of the decree wherein the date of the decree was changed in three places from Gth to 16th, which had the effect of bringing the application for execution within the period of limitation. Had Mr. Choksi made this change himself or presented it with the knowledge of the change, clearly it would have been grave misbehaviour. But the petition which has been drawn with care and great fairness says, that it is not proved that Mr. Choksi was directly concerned or conversant with the alteration. The fault found is that he failed to check the copy of the decree before presenting it in the Court.
6. I do not think that this can be regarded as neglect of duty within the meaning of Section 56. I do not see any reason for not holding on the materials before us, that Mr. Choksi was misled as to the date.
7. The second charge therefore fails.
8. The third charge is, that Mr. Choksi, withheld from the Sub-Divisional Magistrate to whom he applied for the transfer of a case, information of the fact, that he had made a previous application to the District Magistrate for the transfer of the case and had failed. If it could be said that this was made out in the form in which I have stated it, then I think there would have been lack of candour on Mr. Choksi's part, which certainly would invite criticism.
9. But Mr. Choksi?s explanation in my opinion meets the charge that has been brought. In the first place, the application to the Sub-Divisional Magistrate was not certainly on all fours with that made to the District Magistrate and further than that. Mr. Choksi points out, that though he did not state in his written application that he had made a previous application to the District Magistrate, he says that it was his intention, when the time came for him to address the Court, to state to the Sub-Divisional Magistrate the particulars, but in the interval between his presentation of the written application (which I understand was not accompanied by any oral address to the Court) and the time for addressing the Court the Sub-Divisional Magistrate had learnt of the previous application to the District Magistrate and immediately charged the pleader with what he had done, before he had the opportunity of addressing the Court on the subject. That is certainly a possible explanation which in the circumstances we should accept. At the same time it is most important for pleaders in matters of this kind to be absolutely candid with the Court, if they wish to avoid finding themselves in the position Mr. Choksi has found himself.
10. The fourth charge is, that Mr. Choksi in the grounds of appeal in a oriminal appeal made allegations against a Government officer without due care and caution.
11. I am clearly of opinion that the charge is met by the explanation.
12. The fifth and last charge, is summed up in the 10th para of the petition as follows:-
That from the evidence taken by the District Judge during the said inquiry, it will appear that the conduct of Mr. Choksi was reprehensible and unprofessional in (1) not applying for he Court's permission to remove the books he wanted or in allowing them to be removed without such permission ; (2) in denying when questioned all knowledge of the matter and seeking to defend his client and himself by making or permitting to be made false and reckless statements as in the rejoinder Ex. 163 instead of admitting his, negligence fairly and in a straight forward manner to the Subordinate Judge and (3) in persisting in his denial in the District Court where he stated on oath that so far as he knew the books had not been removed to his office.
13. This undoubtedly does involve a serious charge and it is dealt with at length in Mr. Choksi's explanation. In the first place, I come to the conclusion that it is not established that the books were in the custody of the Court, but still, Mr. Choksi may have deliberately told a falsehood before the District Court when examined on oath. This depends upon the evidence taken before Mr. Madgaoker, on which the learned Judge formed an opinion unfavourable to Mr. Choksi. We have no further evidence or material before us and the Government Pleader has stated that in the circumstances of the case he could not usefully place before us any material beyond that on the record as it stands.
14. The evidence before Mr. Madgaoker, appears to me to be open to the comments, first that it was taken on the understanding, that Mr. Choksi was not then a person on his defence. He was told in answer to an application made by him that the case must proceed as he was not at that time an accused person. It is therefore reasonable to assume that the cross?examination was not directed to exculpating Mr. Choksi or establishing the truth of what he had stated. The only witness on whom the Judge relies is Manecklal. This witness states that the books were taken in the first instance to the office of Mr. Choksi and that they were then taken to the shop and that they remained in the shop for two or three days and then were brought from the shop to the Court. Lakshmidas, another witness, says, that was not so and that they were taken to the pleader's office just before they were returned to the Court and other witnesses, say that they were not taken at all. On this evidence it would not be safe to find a professional man guilty of a criminal offence, or of misbehaviour. It is quite true that Mr. Madgaoker has expressed an opinion adverse to Mr. Choksi, but there are two matters which detract from the value I would ordinarily attribute to the opinion of the learned Judge. The first is, the District Judge's own declaration as to the limit and scope of the enquiry to which I have already referred, that is to say, that in his view Mr. Choksi was not an accused person and the second is the fact, that though the case was adjourned for argument, judgment was delivered without hearing the argument. It is clear that a Judge in the great majority of cases cannot do full justice to a case without hearing the arguments which the Advocates desire to address.
15. In these circumstances I am of opinion, having regard to the nature of the evidence, the defects in procedure, that it would not be safe for us to accept the opinion expressed by the learned Judge in this case. Therefore I hold that the 5th charge fails.
16. We must therefore discharge the rule.
1. Upon the first four charges all materials requisite to a conclusion, have been laid before us and I agree in thinking that the charges cannot be sustained. The most serious part of the fifth charge is that the opponent deliberately made a false statement on oath before the District Judge. The only evidence, if it can be properly called evidence, offered to prove this charge are depositions of witnesses contemporaneously examined in the enquiry in which as a witness the opponent is alleged to have made the deliberately false statement. In reading and criticizing that evidence the opponent?s learned counsel insisted upon three principal defects; 1, that at the time it was taken the opponent was not on trial, therefore that it could not in any sense be said to have been evidence taken at that time against him 2. That the opponent had no opportunity of cross?examining the witnesses who gave it, on his own behalf? 3. That he was not allowed to address the District Judge upon that evidence. The two first are radical; the third goes no further than to impair the value of the conclusion adverse to the accused which the District Judge formed upon that evidence. The District Judge's conclusion, however, is in no sense evidence. As touching the quality of the evidence, the intrinsic quality of the evidence I mean, it is plain that the third defect is of little if any importance. For supposing these depositions to be evidence, the defect is curable before this Court, which is the Court that has finally to appreciate them. I am not very familiar with this special proceeding. But I understand that this Court is in a position closely analogous to if not precisely the same as that of a criminal Court trying an accused person on formulated charges. If that is so it is plain that the two radical defects which opponent?s counsel has pointed out in the evidence laid before us, go much further than the ordinary criticism of the intrinsic quality of otherwise legal evidence. Suppose that A, B, C are giving evidence before a Magistrate and the Magistrate concludes from what is said by A and B that what is said by C is false and thereupon C is prosecuted. It is I think obvious that the depositions of A and B are not evidence against C. In the trial of C it would be necessary to have the evidence of A and B taken again, so that C might cross?examine and finally address arguments to the Court upon it. Nor does it appear to me, that should C's counsel read and criticize the former depositions, while insisting upon the Court noticing defects, that make it wholly inadmissible, the mere reading and criticism would cure them. I express this opinion with deference, because I gather from what has fallen from the learned Chief Justice, that on the point I am not in complete agreement with him. But it appears to me that the definition of 'evidence' in the Act lends strong support to my opinion. I feel grave doubt whether reading and criticizing depositions or other matter, which if objected to could not be received in evidence, makes those depositions or that matter evidence unless the objection or objections are expressly waived. For as long as they are retained, insisted upon and impressed on the mind of the Court, speaking for myself, I feel that I should be quite unable to approach the appreciation of those evidentiary materials, in the same way as though they were admittedly legal evidence. In the present case if the District Judge had informed the opponent that he believed he had given deliberately false evidence and had then allowed him to cross?examine the witnesses upon whose statements that belief rested and to argue the matter fully from his own point of view and had yet come to the conclusion that the statement of Maneklal was certainly true and that of the opponent here, certainly false, I should have been in a much better position I think to estimate the true value of the evidence upon which the Government Pleader has asked us to exercise our disciplinary powers. As the case stands I entirely agree that there is no good evidence upon which this charge can be sustained and I would therefore discharge the rule with costs.