John Beaumont, Kt., C.J.
1. In this case there was a petition presented to the High Court by oneRamkrishna Bhai Thakur which asked us to take disciplinary action against Mr. J.D. Davar, Advocate on the Original Side. The matter was referred to a. Tribunal of the Bar Council under Section 10 of the Indiaq Bar Council Act.
2. The gist of the complaint in the petition was that Mr. Davar had used language unfairly abusive in describing the applicant and his witnesses. It appears that the applicant had launched a prosecution against a Doctor Deshmukh and another for negligence in the carrying on of their profession and Mr. Dava appeared in those proceedings before the Presidency Magistrate as counsel for Dr. Deshmukh. It appears from Mr. Davar's statement before the Tribunal that the case was, in the view of the accused persons, what is generally described as a black mailing prosecution, that is to say, the accused considered that the prosecution was launched really for the purpose of extorting money from the accused and not for the purpose of procuring their punishment for the offence charged. The meet material part of the petition in thiscase is contained in paragraph 6 in which the petitioner says:-
Your petitioner had to undergo a lengthy cross-examination of which he does not complain but a great many of the questions were deliberately couched in insulting and defamatory language calculated to cause him annoyance and humiliation directly and by insinuation before a large Dumber of people who attended the hearing of the case.
Your petitioner will here quote only a few of the vile and abusive expressions:- These disreputable people, scamps, thieves, swindlers, people out to extort moneys, the medical fraternity is to be protected from the clutches of such disreputable people, faked witnesses brought in to bolster up a false case.'
3. The case of the accused being, as I have said, that it was not a bona fide prosecution, counsel appearing for the accused would be quite at liberty to cross-examineprosecution witnesses on that basis, that is to say, he could cross-examine them as being in his view dishonest witnesses, But there is always a limit beyond which counsel should not go in attacking the opposing party or his Witnesses. Counsel has a very valuable privilege in that he is not liable in other than exceptional circumstances to civil or criminal proceedings on account of anything which he may say in Court on behalf of his clients. But that privilege imposes a corresponding responsibility and counsel has to be vary careful not to make any attack upon parties or witnesses engaged in the case, which goes beyond what is fairly necessary for the presentation of his own client's case. If in fact counsel had referred to the petitioner or his witnesses in the terms which I have quoted, he would, I think, undoubtedly have been going too far. There was, however, no Shorthand note of counsel's observations, and Mr. Davar, before the Tribunal of the Bar Council appointed to inquire into thiscase, has explained exactly what happened. It appears that the passage quoted is really a confusion of various parts of Mr. Davar's address. The words, ' scamps, thieves, swindlers, undesirable persons' and so forth were not in fact used as descriptive of the petitioner at all. The petitioner's brother was examined as a witness and he stated in answer to a question by Mr. Davar as to his means of livelihood, that he was a man conducting his own affairs, and Mr. Davar says that subsequently in addressing the Court he pointed out that any person, a thief, a swindler, a cut-throat, etc., could all live on their nefarious trade and justify their answer by saying 'I am a man who conducts my own affairs.' That is to say the epithets used were not descriptive of the petitioner but were descriptive of imaginary persons, who were brought into counsel's argument. If that had been made clear in the petition I have no doubt that the High Court would have dismissed the matter summarily. But under the Indian Bar Councils Act the Court, when a complaint is made, can only dismiss it summarily or else refer it to a Tribunal of the Bar Council to inquire into. The Court would not generally be justified in dismissing a petition summarily unless it was satisfied that, even if the allegations alleged in the petition be proved, there would be no case for taking action. In this case if the allegations in the petition had been true, I think there would have been a case for taking some sort of action, because the bench and the bar are extremely jealous of the honour of the profession of the bar, and as a general rule the only step which can be taken against an advocate who abuses his privilege is for the Court to take disciplinary action. I think, therefore, if the allegations in the petition had been substantiated, there would have been a case for taking disciplinary action. But the Tribunal of the Bar Council appointed to inquire into the matter have heard the evidence of persons engaged in the case and they have unanimously come to the conclusion that Mr. Davar's explanation is right, and that, therefore, there was no breach whatever of his duties. I quite agree with that finding and propose to take no action on the petition.
4. It has been argued that we ought to order the petitioner to pay the costs of the proceedings. Undoubtedly, the Indian Bar Councils Act as at present framed does enable unscrupulous persons to put advocates to great expense and inconvenience by presenting a petition containing untrue statements. But I am, as at present advised, very doubtfulas to the jurisdiction of the Court to order that person to pay the costs of the proceedings. Under Section 10 of the Indian Bar Councils Act the Court can refer a matter to the Bar Council and appoint a Tribunal to hear it. The Tribunal can make its own rules under Section 12, and it reports its finding to the High Court, and under Sub-section (3) of Section 12 notice of the date of hearing has to be given to the advocate concerned, to the Bar Council and to the Advocate General, but not to the complainant. Then under Sub-section (5) of that section it is provided ; ' In passing final orders the High Court may pass such order as regards the payment of the costs of the inquiry and of thehearing in the High Court as it thinks fit.' It is suggested that that gives power to the Court to order the complainant to pay the whole costs of the inquiry, I think that point is very doubtful, because I am disposed to think that the whole procedure for dealing with the alleged misconduct of the advocate is designedly made a domestic affair, and although the Tribunal under their rules may allow the complainant to appear and state his case and call any evidence, I do not think that places him in anything approaching the position of a litigant hostile to the advocate. However, I think it is not necessary finally to decide the point, because for two reasons I do not think it desirable, even if we have power to do go, in this case to order the applicant to pay the costs. In the first place he is an insolvent and therefore the order would not be fruitful. In the second place there was no shorthand note of the observations made by counsel. It is not disputed that Mr. Davar did use more or less the expressions which are referred to in the petition, although in the context in which they were used they were quite innocuous. But it is conceivable that the petitioner, not having the words taken down in writing before him, considered that the reference to undesirable people, scamps, thieves, swindlers, etc., was intended to apply to him and his party. I am not prepared, therefore, to say that the petition was intended to be misleading. That being so we should make no order as to costs.