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In Re: Sri H.P. Chaudhari - Court Judgment

LegalCrystal Citation
SubjectService
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Case No. 388 of 1958
Judge
Reported inAIR1959All472
ActsBar Councils Act, 1926 - Sections 9; Bar Councils Rules - Rule 1; Government of India Act, 1935
AppellantIn Re: Sri H.P. Chaudhari
Appellant AdvocateR.S. Pathak, Adv.
Respondent AdvocateG.N. Kunzru, Adv.
Excerpt:
service - meaning of 'judicial office' - proviso to section 9 of bar councils act, 1926 - means member of judicial service - 'vakil' working in income-tax department is not a person holding judicial office. - - 5. without deciding whether membership of the judicial service for the requisite period necessarily in all cases amounts to the holding of a judicial office, we are satisfied that unless a person is or has been a member of such service he does not qualify for enrolment as an advocate of this court under the first proviso to rule 1. we accordingly uphold the objection of the bar council......or pleader prior to 14-12-1929, may be admitted to the roll of advocates (if) ..... (c) he hasheld judicial offices for more than ten years in british india, dominion of india or india, as the case may be; .....'it is sri chaudhri's contention that having served as an officer of the income-tax department for more than ten years he has held 'judicial office' within the meaning of this proviso and is accordingly entitled to be enrolled. it is common ground that officers of the income-tax department perform judicial duties and that proceedings before them under section 37 of the income-tax act are judicial proceedings.the argument for sri chaudhri, which has been ably advanced by sri r. s. pathak, is that a person holds an office if while holding it he has some duty to perform, and if that.....
Judgment:

O.H. Mootham, C.J.

1. This Court has before it an objection preferred by the Bar Council to the admission of Sri Har Prasad Chaudhri as an Advocate of the Court,

2. Sri Chaudhri was enrolled as a Vakil of this Court on the 1st August 1923, but almost immediately thereafter he entered the service of the Government of India in the Income-tax Department He was an Income-tax Officer for eighteen years and later was appointed successively to the offices of Assistant Income-tax Commissioner and Commissioner of Income-tax.

For some time he was a member of the Income-tax Investigation Commission and for the last eighteen months of his service he was Director of Inspection, Special Investigation. After his retirement from Government service in 1056 he applied for enrolment as an Advocate but his admission is objected to by the Bar Council on the ground that he is not duly qualified.

3. Rule 1 of the Rules made by the Bar Council under Section 9 of the Indian Bar Councils Act prescribes generally the qualifications for enrolment but to this Rule there are a number of provisos of which the first, so far as it is relevant, reads thus:

'Provided, firstly, that a person who is a graduate in Law as referred to in Rule 1 or who has passed the Vakils Examination of the Allahabad High Court and has been and could be enrolled as a vakil or pleader prior to 14-12-1929, may be admitted to the Roll of Advocates (if) ..... (c) he hasheld judicial offices for more than ten years in British India, Dominion of India or India, as the case may be; .....'

It is Sri Chaudhri's contention that having served as an officer of the Income-tax Department for more than ten years he has held 'judicial office' within the meaning of this proviso and is accordingly entitled to be enrolled. It is common ground that officers of the Income-tax Department perform judicial duties and that proceedings before them under Section 37 of the Income-tax Act are judicial proceedings.

The argument for Sri Chaudhri, which has been ably advanced by Sri R. S. Pathak, is that a person holds an office if while holding it he has some duty to perform, and if that duty is judicial in its nature the office is a judicial office, and that Sri Chaudhri is accordingly qualified for enrolment.

4. This argument assumes however that the expression 'judicial office' can only have one meaning whereas we think that in fact it is an expression the exact meaning of which can be determined only by the context in which it is used. It is not, for example, used in the same sense as in the Corrupt and Illegal Practices Prevention Act, 1883, where it is defined as including the office of a Justice of the Peace, and in Article 217 of the Constitution where the holding of judicial office is a qualification for appointment as a Judge of a High Court.

Although the proviso to Rule 1 which we are now considering came into force in 1950, it is in substantially the same form as the proviso for which it was substituted and which came into operation when the Government of India Act, 1935, was in force, and we think that there can be no real doubt that the framers of the proviso had, when drafting it, the provisions of that Act relating to judicial officers in mind.

Sections 253 to 256 relate to 'Judicial Officers', and it is clear in those sections that the expression refers exclusively to members of a judicial service, that is to say to a service consisting exclusively of persons intended to fill civil judicial posts. It is in that sense, in our opinion, that the expression 'judicial office' is used in the proviso; a person holding judicial office being a member of the Judicial Service, or, in short, a judicial officer.

5. Without deciding whether membership of the judicial service for the requisite period necessarily in all cases amounts to the holding of a judicial office, we are satisfied that unless a person is or has been a member of such service he does not qualify for enrolment as an advocate of this Court under the first proviso to Rule 1. We accordingly uphold the objection of the Bar Council.


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