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Government Pleader Vs. R. A. Pleader - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Reported inAIR1935Bom71
AppellantGovernment Pleader
RespondentR. A. Pleader
Excerpt:
.....and the rejection of it on 30th august. it would have been better for the pleader to mention the application of 7th august although in point, of fact the grounds upon which he applied for a transfer of the case on 5th september were different from those on which the transfer application of 7th august was made. this clearly discloses a most undesirable state of affairs; accepting it as true, the explanation at the best iconic to this that the opponent was grossly negligent in accepting vakalatnama on behalf of the side opposite to the one for which he had already acaccepted a vakalatnama. r having failed in one court resorted to a second one of co-ordinate jurisdiction in which to repeat his application. this is, of course, perfectly legal, and the charge is not that he should not have..........to be under section 100, criminal p.c. he suppressed the fact that in a previous order made by the district magistrate in respect of the same person, (whose release was desired) the district magistrate had ordered that gomti was at liberty to go or stay as she wished, and also that in the same application he suppressed the fact that his own client was primarily responsible for this girl being detained at the ashram, and suggested, on the contrary, that other persons were responsible for it. the second charge against him is that in respect of the same case as the one just mentioned he made an application to the sub-divisional magistrate for a transfer of the case without disclosing the fact that only a fortnight before an application for transfer had been made to the district magistrate.....
Judgment:

Macklin, J.

1. This is an application by the Government Pleader under Section 25, Bombay Pleaders Act, made as a result of two applications to the District Judge of Kaira against Mr. R. The allegations against the pleader are three. The first is that in an application to the Sub-Divisional Magistrate purporting to be under Section 100, Criminal P.C. he suppressed the fact that in a previous order made by the District Magistrate in respect of the same person, (whose release was desired) the District Magistrate had ordered that Gomti was at liberty to go or stay as she wished, and also that in the same application he suppressed the fact that his own client was primarily responsible for this girl being detained at the ashram, and suggested, on the contrary, that other persons were responsible for it. The second charge against him is that in respect of the same case as the one just mentioned he made an application to the Sub-Divisional Magistrate for a transfer of the case without disclosing the fact that only a fortnight before an application for transfer had been made to the District Magistrate and had been refused. The third charge is that, having on two occasions filed a vakalatnama on behalf of four persons accused in a criminal case, at a later stage, when the matter came on for hearing, he accepted a vakalatnama from the complainant in the case. The District Judge has held all the charges proved, and has referred the matter for our orders. We do not think that the first two charges are proved, but we hold that the last charge is proved,

2. I take first the charge with reference to the application to the Sub-Divisional Magistrate under Section 100, Criminal P.C. This was in respect of a case under Section 498, Penal Code, and related to a woman named Mani, aged twenty, who was claimed by one Shiva Mathur and also by Lallu Mulji as his wife. The matter appears to have begun with an application under Section 100 by Shiva Mathur. On that application the District Magistrate ordered, on 19th June 1933, that Mani should be restored to her husband Shiva. Shiva then took her away and detained her. Thereupon the next day Lallu Mulji told the District Magistrate what had happened and himself claimed Mani for his wife. The District Magistrate then ordered the production of Mani before himself. On 21st June, Mani made a statement in which she denied that she was Shiva's wife and alleged that he had outraged her. Thereupon on the same day the District Magistrate passed an order directing that Mani should be permitted to stay at a certain ashram at Shiva's expense. The wording of the order is not very clear. It was probably intended to be taken as an order that Mani should stay at the ashram; but it appears rather in the form of a permission or advice that she would be well advised to stay at the ashram. In any case, if she did stay, it was to be at Shiva's expense. This order purports to have been passed pending the disposal of the case under Section 498. On 7th August, the District Magistrate modified his earlier order or direction, since there appeared to be no prospects of the ease under Section 498 being quickly finished. On that day he passed an order in the following: terms--

I see no point now in Bai Mani residing at the ashram. In amplification of my order dated' 21st June setting Bai Mani at liberty I do not. insist on the latter clause of my above order being adhered to and adopted. I leave it to the option of Bai Mani to leave the ashram whenever she likes and to go and stay wherever she-likes.

3. That order is dated 7th August 1933. On 11th August an application by Shiva, was drafted by his pleader, the opponent in this case, and was presented to the Sub-Divisional Magistrate three days-later on 14th August. The material parts of that application are these: In para. 1 the applicant says:

The Collector of Kaira has passed an order ore the date 7th August 1933, to set at liberty my wife Bai Mani who was staying in the Nadiad? Anath Ashram. Notwithstanding the said order Bai Mani is still detained in the Nadiad Anatb. Ashram against her will.

4. Then in para. 4 he again says:

The Collector has passed an order on the data 7th August 1933, to set at liberty Bai Manu Moreover, the lady also does not seem inclined, to stay in the Nadiad Anath Ashram. Notwithstanding that Bai Mani has been kept in the Nadiad Anath Ashram.

5. Then in para. 6:

Bai Mani is entitled to go wherever she likes. Still by keeping the lady in the Anath Ashram her freedom has been restricted. It appears that the lady desires to go anywhere she likes. Therefore by locking her up in the ashram the purpose; of the law is not served.

6. The applicant then says that when a copy of the Collector's order is ready it will be furnished to the Sub-Divisional Magistrate. On this application the District Judge says:

The application suppressed firstly the fact that the District Magistrate had left it to the option of Mani to continue to stay on in the ashram if she wanted to do so, and secondly the fact that the applicant himself was responsible-for her inability to leave the Ashram, and suggested falsely that either the ashram authorities-or some person other than the applicant himself were not allowing her to leave the ashram and go elsewhere.

7. There is thus an alleged suppression veri and suggestio falsi. But, we find it difficult to hold the charge proved? against the opponent. As regards the suggestio falsi the application says that the Collector's order set Mani at liberty thereby implying that Mani would have gone if it had been in her power to do so. But the District Magistrate's order really goes further than this. It says that Mani is free to go or stay as she likes. There is a distinction between the two. But it is a subtle distinction, and in our opinion it is too subtle for us to be able to hold conclusively that in this respect the opponent had the deliberate intention of misleading the Court.

8. As regards the suppression of the alleged fact that it was the opponent's client himself who was responsible for Mani not being able to leave the ashram, it is a fact that there is reason to believe that the opponent some two months before must have known what was going on, and therefore that his client was responsible for the restricted movements on the part of Bai Mani; but we do not think it possible to hold conclusively that he was aware of the fact--if indeed it is a fact--that his client on the date of this application in August as distinct from June, was restraining his wife's movements. For these reasons we hold this particular charge not proved. The second charge is in respect of an application to the sub-Divisional Magistrate for a transfer of this same case. On 7th August the District Magistrate had transferred the case from a Second Class Magistrate to a First Class Magistrate. This apparently was done on the technical ground that the Second Class Magistrate was not empowered to try all the charges. On 19th August an application for transfer was presented to the District Magistrate, Ex. 24, upon the ground that if the applicant had to go to Borsad for the case he would be in danger of his life, and moreover that as the opponents were influential people, they would be in a position to influence the conduct of the case if it were continued at Borsad. This application was rejected on 30th August on the ground that the reasons put forward by the applicant were not substantial. On 5th September the opponent on behalf of his client, Shiva, made an application to the Sub-Divisional Magistrate in which neither of these previous applications for transfer was mentioned. The present charge is concerned with his failure to mention the application for transfer made on 19th August and the rejection of it on 30th August.

9. On this point the case of the opponent is that he had no idea that the application of 19th August had ever been presented at all, and that he did not hear that it had been rejected on 30th August. This explanation has been disbelieved' by the learned District Judge, because he thought it highly improbable that the opponent's client would have applied on his own account to have the matter transferred without informing his pleader, or that he would have gone to another pleader for that purpose. It does indeed seem improbable that he should have done so but nevertheless the opponent definitely says that he was never informed of this, and it may be that his client would not have cared to mention the rejection of his application to his pleader fearing that his pleader would insist upon mentioning it in his application to the Sub-Divisional Magistrate even at the risk of having that application to the Sub-Divisional Magistrate rejected. But, as it turned out, it was rejected because the Sub-Divisional Magistrate already knew of the application of 7th August. It would have been better for the pleader to mention the application of 7th August although in point, of fact the grounds upon which he applied for a transfer of the case on 5th September were different from those on which the transfer application of 7th August was made. Nevertheless, we are not prepared to reject his explanation; it is possible that it may be a true explanation, and as these matters are in the nature of criminal proceedings it is necessary that every charge should b& proved beyond all reasonable doubt.

10. The third charge is that, having accepted a vakalatnama for the accused, the opponent subsequently accepted and presented a vakalatnama for the complainant, (or rather for the person who was primarily interested in the prosecution). It appears that before the matter actually came to be tried, the opponent received a vakalatnama in general terms and presented this vakalatnama with an application for bail. The case eventually came on for hearing before another Magistrate, and on several hearings the opponent was not present. But later on, when he was engaged in that Court on another case of his own, and after the conclusion of that case the present case was called upon for hearing, he received a vakalatnama from the so-called complainant and at once presented it to the Magistrate. His attention, according to the opponent himself, was then drawn to the fact that he had already appeared in the case on behalf of the accused and that he could not possibly appear now on behalf of the complainant. Thereupon, (again according to the opponent), he asked the Magistrate to permit him to withdraw and to take back his vakalatnama. Whatever may be the details of what happened, it is a fact, so far as can be ascertained, that he really did not actually conduct the case for the complainant, or take any action on the complainant's vakalatnama.

11. The opponent says that his conduct was duo purely to a mistake and that he had entirely forgotten that he had appeared already on behalf of the accused in respect of the bail application. In this connexion it is worth while noticing what he says. He says that the petition-writer kept with him a stock of blank forms of vakalatnamas belonging to the opponent, and that the complainant in the case came to the petition-writer and the petition-writer thereupon filled in the blank spaces in the form of the vakalatnama and handed it in to the opponent as coming from the complainant. This clearly discloses a most undesirable state of affairs; but as this state of affairs forms no part of the Charge against the opponent, no more need be said about it here. Accepting it as true, the explanation at the best iconic to this that the opponent was grossly negligent in accepting vakalatnama on behalf of the side opposite to the one for which he had already acaccepted a vakalatnama. When he accepted that vakalatnama, the accused for whom he appeared in the bail application must have been in Court, and in any case their names would have been road out and if he had exercised ordinary diligence, he would at once have known that the names of the accused wore the names of the persons for whom he had already appeared for bail. If it is a fact that he did not know these persons already, then his ignorance was due to the unfortunate system of getting brief which he had adopted. What over the truth of the matter, it is clear that his conduct amounts to gross negligence and in our opinion is deserving of a severe reprimand. We reprimand him 'accordingly and direct that he pay the costs of this application.

Murphy, Ag. C.J.

12. I wish to add a little to what has been said by my learned brother. The charges against the opponent are that in two cases, facts, which should have been mentioned in applications for which Mr. R was responsible, were suppressed from the knowledge of the Courts to which they were made, because they were considered disadvantageous to the request which was then being made, and in the other of them the application also contained suggestions which were false. In the last charge against the accused he has been found guilty, by the learned District Judge of having accepted a brief from each of the two sides.

13. My learned brother has dealt with the merits of the several charges. One general remark which may be made as to the charges Nos. 1 and 2 is that in each case Mr. R having failed in one Court resorted to a second one of co-ordinate jurisdiction in which to repeat his application. This is, of course, perfectly legal, and the charge is not that he should not have done so, but that, if ha did, he should at least have been frank with the second Court to which he applied, and have correctly recited the facts before he came to that Court. It is clear that in these two cases this requirement was not observed. What was omitted to be stated in the application under Section 100, Criminal P.C. is explicable on the ground of clumsy drafting by an inexperienced pleader, and we have accepted this explanation. On the second charge, the explanation is ignorance of what his client had meanwhile been doing. This explanation is possible, because the transfer application to the District Magistrate does not appear to be in Mr. R's hand, and he does not seem to have acted in it. Mr. R's client, Shiva Mathur, was unfortunately not examined, and we do not know exactly what happened. It is possible therefore that Mr. R's explanation is true, though it is difficult to imagine that his client acted without his advice in the matter.

14. On the last charge there is no doubt that Mr. R was engaged as a pleader by four persons against whom a criminal complaint was expected, and that he afterwards accepted a brief for the prosecution. It has been argued by Mr. Thakor that Mr. R was only engaged in a bail application, and did not appear in the case, but all that is necessary is that he should agree to do so and since he put in a vakalatnama, it must be concluded that he accepted a retainer within Section 11 of the Act. Mr. Shah's explanation was that he had left vakalatnama forms ready with a petition-writer Ramanlal Bhailal and that just before the case was called Ramanlal handed him one duly filled in, which he ac cepfced and so appeared for the complainant. Immediately after, he says, Mr. Hiralal for the other side drew his attention to the fact that he had already appeared for the defence, whereupon he withdrew. We find it very difficult to accept this explanation and we feel strongly that the arrangement he has disclosed with the petition-writer at Matar is most objectionable. At the best Mr. R's explanation amounts to carrying on his work without due care and attention, or in other words with gross carelessness. But we feel that there was more in it than that, and that Mr. R is guilty of professional misconduct. I agree therefore with the severe reprimand which has been pronounced by my learned brother.


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