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In Re: Philip N. Godinho - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported inAIR1934Bom70; (1934)36BOMLR1
AppellantIn Re: Philip N. Godinho
DispositionAppeal rejected
Excerpt:
.....rule 10 - rule not ultra vires-advocates a.s. have no right of audience in the high court sessions-criminal procedure code (act v of 1898), section 4-pleader-definition-indian bar councils act (xxxviii of 1926), section 8.;rule 10 of the bombay high court rules, appellate side, is not ultra vires.;advocates on the appellate side of the high court do not come within the definition of 'pleader' as denned in section 4(r) of the criminal procedure code, 1898, for the purposes of the high court sessions, because they are not authorised by law for the time being in force to practise in that court. they have, therefore, no right of audience in such court. - - and, in my opinion, there was clearly power to make that rule. the question raised, though interesting, is simple. 22. in the result i..........of mr. godinho, who appears for the petitioners, is that those rules are ultra vires.4. the criminal jurisdiction of this court on its original side is derived under clause 22 of the letters patent, which provides that this high court shall have ordinary original criminal jurisdiction within the local limits of its ordinary original civil jurisdiction; and then clause 38 provides that the procedure to be adopted in the exercise of the original criminal jurisdiction shall be the procedure and practice which was in use before the publication of the letters patent. but clause 44 of the letters patent declares that the provisions of the letters patent are subject to the legislative powers of the governor general in council under section 71 of the government of india act, 1915.5. mr......
Judgment:

John Beaumont, Kt., C.J.

1. This is a petition by certain pleaders on behalf of themselves and as representatives of the other members of the Western India Advocates Association, Bombay, in which they ask the Court to decree that they have a right as pleaders to appear on the Crown Side of the High Court. Their particular contention is that they should have a right of audience in the Criminal Sessions held by this High Court.

2. Rule 10 of the Appellate Side Rules of this Court provides that 'Advocates, who are not Advocates [on the Original Side] shall not appear, plead, or act for any Suitor in this Court in any matter of ordinary original jurisdiction, Civil or Criminal'; and if that rule is complied with, as it has been hitherto, it forbids the advocates on the Appellate Side from appearing in the Criminal Sessions in the High Court. There is a similar rule in the Original Side Rules, namely, Rule 44.

3. But the contention of Mr. Godinho, who appears for the petitioners, is that those rules are ultra vires.

4. The criminal jurisdiction of this Court on its Original Side is derived under Clause 22 of the Letters Patent, which provides that this High Court shall have ordinary original criminal jurisdiction within the local limits of its ordinary original civil jurisdiction; and then Clause 38 provides that the procedure to be adopted in the exercise of the original criminal jurisdiction shall be the procedure and practice which was in use before the publication of the Letters Patent. But Clause 44 of the Letters Patent declares that the provisions of the Letters Patent are subject to the legislative powers of the Governor General in Council under Section 71 of the Government of India Act, 1915.

5. Mr. Godinho contends that, having regard to Clause 44 of the Letters Patent, the procedure now in force in the Sessions Court of the High Court is governed by the Criminal Procedure Code, and with that contention I agree. The Criminal Procedure Code provides in Section 290 that an accused or his pleader may open his case, and that section is contained within a chapter which is intituled: 'Of Trials before High Courts and Courts of Session.' Then Section 340, which is contained within a chapter intituled 'General Provisions,' provides that: 'Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code in any such Court, may of right be defended by a pleader.' Mr. Godinho contends that an accused person being given a statutory right to be defended by a pleader, any rule of this High Court, which purports to take away or limit that right, is ultra vires. There might, I think, be considerable force in Mr. Godinho's contention if it were not for the definition of 'pleader' contained in Sub-clause (r) of Section 4 of the Code, which provides: ''pleader', used with reference to any proceeding in any Court, means a pleader (or a mukhtar) authorised under any law for the time being in force to practise in such Court.' If the rules of this Court to which I have referred are valid rules made under statutory authority, and if these rules preclude advocates on the Appellate Side from practising in the Sessions Court, then such advocates do not come within the definition of the term 'pleader', quoad the Sessions Court because they are not pleaders authorised by law for the time being in force to practise in that Court.

6. Now, the rules in question are, I think, valid under the Indian Bar Councils Act, 1926. It is true that under Section 8 of the Indian Bar Councils Act, a single roll of advocates is constituted. But in Section 9, which authorises the Bar Council to make rules regulating the admission of persons to be advocates, there is contained in Sub-clause (4) a provision saving the right of this High Court to prescribe the qualifications to be possessed by persons applying to practise in this Court in the exercise of its original jurisdiction; and power is reserved to the Court to grant or refuse any such application, or to prescribe the conditions under which such persons should be entitled to practise. Then Section 14 empowers an advocate as of right to practise subject to the conditions laid down in that section. But in Sub-clause (3) of that section it is provided that-

Nothing in this section shall be deemed to limit or in any way affect the power of the High Court of Judicature at Fort William in Bengal or of the High Court of Judicature at Bombay to make rules determining the persons who shall be entitled respectively to plead and to act in the High Court in the exercise of its original jurisdiction.

7. Under that provision, this High Court has made the rule that only advocates on the Original Side are to be entitled to practise in the Court of Session; and, in my opinion, there was clearly power to make that rule. That being so, advocates on the Appellate Side do not come within the definition of 'pleader' as defined in the Criminal Procedure Code for the purposes of the Sessions Court, because they are not authorised by law for the time being in force to practise in that Court. That being so, I think no order should be made on the petition.

John Blackwell, J.

8. I am of the same opinion, and have nothing to add.

Rangnekar, J.

9. This is a petition of three advocates on behalf of themselves and as representatives of the other members of the Western India Advocates Association and two other sister Associations, in which the petitioners claim that advocates have a right of audience in the Criminal Sessions held by the High Court. The question raised, though interesting, is simple.

10. The general principle as to a right of audience in a Court, as stated by Baron Parke, is that, in the absence of any statutory enactment or established practice defining what persons are to be heard as advocates, the Court itself has the power to regulate its own procedure and to determine what class of persons have audience: Ex Parte Evans (1846) 9 Q.B. 279

11. On the ground of established practice the petitioners have no case. It is clear, and it is not disputed, that ever since the High Court was established the right of audience in the Criminal Sessions was restricted to advocates practising on the Original Side. The question then is, whether the advocates, other than advocates (O.S.), have any such right under a statute.

12. Clause 9 of the Letters Patent authorises the High Court to approve, admit and enrol advocates, vakeels and attorneys, and provides that such advocates, vakeels and attorneys shall be authorised to appear for the suitors of the High Court, and to plead or to act, or to plead and act for the said suitors according as the High Court may by its rules and directions determine. Clause 10 of the Letters Patent provides inter alia that the High Court shall have power to make rules for the qualification and admission of proper persons to be advocates, vakeels and attorneys of the High Court, and further provides that no persons whatsoever but such advocates, vakeels or attorneys shall be allowed to act or to plead for, or on behalf of, any suitor in the said High Court. Accordingly, the High Court has made rules for the qualifications, etc., of advocates, vakeels and attorneys, and also for the right of audience of such advocates, etc., in the High Court in the exercise of its various jurisdictions, civil and criminal, etc. The rules material to the present petition are Rule 10 of the Appellate Side Rules and Rule 44 of the Original Side Rules. Rule 10 of the Rules of the High Court, Appellate Side, Bombay, provides that the advocates who are not advocates (O.S.) shall not appear, plead or act for any suitor in any Court in this Court in any matter of ordinary original jurisdiction, civil or criminal, or in any matter of appeal from any case of ordinary civil jurisdiction, except in one case, which is not material to the present petition. Rule 44 of the Original Side Rules is to the same effect. These rules are made by the High Court in the exercise of the power conferred upon it by Clauses 9 and 10 of the Letters Patent.

13. Mr. Godinho contends that these rules are ultra vires. He says that the power of the High Court to regulate its procedure and practice in the Criminal Sessions is derived from Clause 38 of the Letters Patent, but under Clause 44 it is subject to the legislative powers of the Governor General in Council under Section 71 of the Government of India Act, 1915. That being the case the learned advocate argues that since the enactment of the Criminal Procedure Code, Act V of 1898, and the Indian Bar Councils Act, XXXVIII of 1926, the procedure and practice to be followed is that laid down in these two statutes. He further argues that even the jurisdiction of the High Court to hold Criminal Sessions is governed and affected by the provisions of the Criminal Procedure Code. In support of this last argument he relies on the definition of the expression 'High Court' in Section 4(j), Section 6, and ch. XXII of the Criminal Procedure Code. This last argument is, in my opinion, irrelevant to the only question raised on the petition, and this, I think, was in the end fairly conceded by the learned advocate. I shall, however, briefly deal with it first.

14. The ordinary criminal jurisdiction of the High Court is derived under Clause 22 and 23 of the Letters Patent. Clause 22 provides that the High Court shall have ordinary original criminal jurisdiction within the local limits of its ordinary original civil jurisdiction-this latter being denned by Clause 11-and also in respect of all persons beyond such limits over whom the High Court had criminal jurisdiction at the date of the publication of the Letters Patent. Clause 23 provides that the High Court in the exercise of its ordinary criminal jurisdiction shall be empowered to try all persons brought before it in due course of law. Is there anything in the Criminal Procedure Code which takes away or qualifies the jurisdiction of the High Court? I think not. What the Criminal Procedure Code does is to lay down the procedure to be followed by the High Court in the exercise of its ordinary original criminal jurisdiction and there is nothing in the Code which in any way encroaches upon the jurisdiction. Before the enactment of the Criminal Procedure Code, the procedure followed by the High Court in trials held in the exercise of ordinary criminal jurisdiction was as laid down in Clause 38 of the Letters Patent. That clause provides that the proceedings in all criminal cases in the High Court in the exercise of its ordinary original criminal jurisdiction shall be regulated by the procedure and practice which was in use in the Court before the publication of the Letters Patent, and now the procedure to be followed is that laid down in the Criminal Procedure Code, and that is all.

15. Mr. Godinho relies on Section 4 of the Criminal Procedure Code. Section 4, however, says that the words and expressions mentioned in that section have the meanings given to them therein unless a different intention appears from the subject or context, and it is clear that the definition of the expression 'High Court' must be read subject to the other provisions of the Code. Section 6 is next relied upon. This section lays down the classes of criminal Courts, and among others, mentions Courts of Session. But the section itself makes a distinction between the High Courts as one class of criminal Courts and other classes of criminal Courts mentioned therein. Mr. Godinho next relies on ch. XXII of the Criminal Procedure Code. The very first section in the chapter, namely Section 256, gives a different definition of the expression 'High Court', and defines the High Court as meaning inter alia a High Court established under the Indian High Courts Act, 1861, or the Government of India Act, 1915. Apart from this there are ample indications in the Code which show that the jurisdiction in the High Court under Clauses 22 and 23 was left untouched. For instance, Section 9(1) says that the Local Government shall establish a Court of Session for every Sessions Division and appoint a Judge of such Court. This is the first class of Court created by Section 6. Surely this cannot apply, to the Criminal Sessions of the High Court. Then there is Section 28 in ch. III which deals with the powers of Courts, and provides that subject to the other provisions of the Code any offence under the Indian Penal Code may be tried (a) by the High Court, or (b) by the Court of Session, or (c) by any other Court by which such offence is shown in column 8 of the second schedule to be triable. The section thus makes a clear distinction between the High Court and a Court of Session, Then in ch. XXII itself there are special provisions for High Courts as such. Section 333 empowers the Advocate General to enter nolle prosequi. Section 334 says that for the exercise of its original criminal jurisdiction, every High Court shall hold sittings on such days and at such convenient intervals as the Chief Justice from time to time appoints. Section 335 empowers the High Court to hold its sittings at the place at which it was holding them at the time the Criminal Procedure Code was enacted. I may also refer to another important section which shows a distinction between a Court of Session and the Criminal Sessions of the High Court. Chapter xxv provides for the mode of taking down and recording evidence in criminal inquiries and trials. Section 356 lays down the rules how the Sessions Judge is to take down evidence and provides inter alia that the record is to be signed by the Judge. Section 365 on the other hand says that every High Court shall from time to time by general rule prescribe the manner in which evidence shall be taken down in cases coming before it, and that the evidence shall be taken down in accordance with such rule. It is unnecessary to refer to other sections in the Code, and, in my opinion, this contention must be rejected.

16. This brings me now to the real question raised on the petition. Mr. Godinho relies on Sections 340 and 290 of the Code in support of his contention that the advocates have a right to appear in the Criminal Sessions of the High Court. Section 340 provides that any person accused of an offence before a criminal Court may of right be defended by a pleader. Section 290, which occurs in ch. XXIII, says that the accused or his pleader may then-that is, when the case for the prosecution is closed- open his case, etc. Mr. Godinho, therefore, argues that a 'pleader' is entitled as of right to appear in the Criminal Sessions of the High Court. The expression 'pleader' is defined in Section 4(r) in the terms following:

Pleader, used with reference to any proceeding in any Court, means a pleader or a mukhtar authorised under any law for the time being in force to practise in such Court, and includes (1) an advocate, a vakil and an attorney of a High Court so authorised, and (2) any...other person appointed with the permission of the Court to act in such proceeding.

17. Now, the fact that an accused person has a right to be defended by a pleader, and if he is defended by a pleader, the fact that the latter can take part in the proceedings and may open his case, etc., cannot by themselves, in my opinion, entitle a person who may answer the description of a 'pleader' to say that he has a right of audience in a Court. The mere definition in Section 4(r) cannot create any such title or status. Apart from that, the definition restricts the right of audience only to (1) a pleader authorised under any law, and (2) to an advocate, a vakil or an attorney authorised by law to practise in a particular Court. Therefore, the petitioners have to show that they are authorised by law to practise in the Criminal Sessions of the High Court, and it is clear that apart from the Indian Bar Councils Act there is no such law which authorises the advocates to practise in the Criminal Sessions of the High Court. On the other hand, under the rules made under the Letters Patent they are debarred from practising in such Court. There is nothing in the sections to which I have referred or in the Criminal Procedure Code which takes away or restricts the power of this Court to make rules for admissions, etc., and for determining the right of audience under its Letters Patent. Then the only question is whether there is anything in the Indian Bar Councils Act which challenges the right of the High Court to make such rules? I think not.

18. Mr. Godinho says that under the Indian Bar Councils Act there is only one class of advocates and only one roll is kept. That is so, but Section 9, Sub-section(4), provides that nothing in Section 9, which empowers the Bar Council to make rules for qualifications and admission of advocates or in any other provisions of this Act, shall be deemed to limit or in any way affect the powers of the High Courts of Bombay and Calcutta to prescribe the qualifications to be possessed by persons applying to practise in those Courts in the exercise of their original jurisdiction or the powers of these High Courts to grant or refuse any such application or to prescribe the conditions under which such persons shall be entitled to practise or plead. Section 14 is important. It creates the right of advocates to practise in the Courts. Sub-section (1) provides that an advocate shall be entitled as of right to practise subject to the provisions of Sub-section (4) of Section 9 in the High Court of which he is an advocate. Sub-section (3) is in the terms following:

(3) Nothing in this section shall be deemed to limit or in any way affect the power of the High Court of Judicature at Fort William in Bengal or of the High Court of Judicature at Bombay to make rules determining the persons who shall be entitled respectively to plead and to act in the High Court in the exercise of its original jurisdiction.

19. It need hardly be pointed out that the Criminal Sessions held by the High Court is part of its ordinary original jurisdiction. This is clear from Clause 22 of the Letters Patent.

20. The provisions of the Indian Bar Councils Act, to which I have referred, leave no doubt in the matter, and, in my opinion, there is only one answer which can be given to the point raised on the petition, and that is that there is nothing in the Act which invalidates the rules made by this Court under the Letters Patent and that they are not ultra vires the powers of the High Court.

21. There is only one more point to which I may now refer. Mr. Godinho says that Clauses 9 and 10 of the Letters Patent refer to the civil jurisdiction of the High Court and relies upon the word 'suitor' occurring in these clauses. I am unable to see why the clauses should not apply to criminal proceedings, and the scheme of the Letters Patent shows that they do. You have first the clause providing for the constitution of the High Court, appointment of Judges and ministerial officers. Then the Letters Patent provides for the admission of advocates, vakeels and attorneys, and then follow the provisions in regard to the various jurisdictions and the law to be administered by the High Court. Thus you have provisions in regard to the civil jurisdiction and the law to be administered by the High Court, criminal jurisdiction and the criminal law, admiralty jurisdiction, testamentary and intestate jurisdiction, and so on. Then follow the provisions regulating the procedure to be followed.

22. In the result I agree that the petition must fail and be rejected.


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