Skip to content


Kalka Prasad Vs. Emperor - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1918All271; 44Ind.Cas.125
AppellantKalka Prasad
RespondentEmperor
Cases ReferredHari Charan Sarkar v. District Judge of Dacca
Excerpt:
.....the order to be exhibited in all courts subordinate to the district court, and its mere removal in one court out of many would not per. the section gives the judge the power, from time to time, to alter and amend the list and under the circumstances, inasmuch as the present applicant is desirous of being heard and may be able to satisfy the learned judge that if he had been given an opportunity of showing cause his name would not have been included in the list of the 4th of may, i think the learned judge might well allow an application by kalka prasad, if he sees fit to make it, to have the list altered or amended by the removal of his name, on the ground that whatever may have been the case in 1908 he is no longer a tout......body of evidence.3. the hearing of the case was spread over a considerable period and the learned judge devoted great pains to the performance of a difficult but highly important task. i have to consider in the case of each applicant to this court how far he is entitled to complain of the order made against him. before doing so, however, it is necessary to make one or two general observations. while exercising due care to see that each case is fairly made out by the evidence called, and is established in a hearing according to law, it is desirable to emphasize the great importance of this legislation both to the general public and to the legal profession. the judge has used language, none too strong, about the pests who perennially infest the courts, though i doubt whether he is.....
Judgment:

Walsh, J.

1. These are four applications in revision made by six persons, Abdul Rahiru, Iftikhar Husain, Nisar Ahmad, Rup Chand, Abdul Karim and Kalka Prasad, against one order made by the District and Sessions Judge of Meerut on the 4th of May 1917 ordering the names of these persons with others to be posted and put on a list of touts under Section 36 of the Legal Practitioners Act. Although the oases of the various applicants are not precisely similar, I propose to deal with all of them in one judgment.

2. The proceedings were undertaken by the District Judge at the instance of the Bar Association of Meerut, which had sat and considered the matter with great thoroughness and which supported the complaint which they made against the system of touting by a large number of persons with a considerable body of evidence.

3. The hearing of the case was spread over a considerable period and the learned Judge devoted great pains to the performance of a difficult but highly important task. I have to consider in the case of each applicant to this Court how far he is entitled to complain of the order made against him. Before doing so, however, it is necessary to make one or two general observations. While exercising due care to see that each case is fairly made out by the evidence called, and is established in a hearing according to law, it is desirable to emphasize the great importance of this legislation both to the general public and to the legal profession. The Judge has used language, none too strong, about the pests who perennially infest the Courts, though I doubt whether he is accurate in attributing their success to the technicalities of English Law rather than to those of Indian Legislation. But it is common knowledge that systematic touting is inseparable from a great deal of deception and imposition practised upon poor and ignorant litigants, whose interests are subordinated to those of the needy persons who prey upon their credulity. It is also inseparable from unprofessional conduct on the part of those who employ them. It is only by the vigilant efforts of bodies like the Meerut Bar Association and by strict enforcement of statutory safeguards, that the poorer members of the public and the respectable members of the profession can obtain protection.

4. The nature of the evidence which may legitimately be tendered in such a case does not really admit of much controversy. The learned Judge has held that the recognised principles applicable in cases under Section 110 of the Code of Criminal Procedure, or the 'evil livelihood' section, are applicable here. This is clearly right. Indeed it was admitted at the Bar by both sides in this case, which was well and temperately presented. The Statute says 'by general reputation or otherwise.' The former of those provisions clearly includes hearsay evidence which may be tested, when admissible, by cross-examination just as other evidence may be tested and challenged. The latter provision ' or otherwise' is clearly intended to include all the ordinary modes of proof known to the law which might otherwise be said to have been impliedly excluded such as personal observation, evidence of conduct, admissions in conversation and the like, proved by first hand testimony. In this case almost every possible kind of evidence was given. I note that none of the alleged touts themselves gave evidence on oath, though I can find nothing in the statute or in the general law to prevent their doing so if they chose. The Code of Criminal Procedure is not applicable and there seems no reason in good sense or in the general law to disentitle them to be heard on oath. It is not to be supposed that direct evidence of a specific case of consideration passing between tout and employer can be forthcoming, except in the rarest cases. The case quoted to me from the Punjab Record is not in point. The only evidence in that case was a letter of introduction which did not suggest remuneration, and might have been perfectly harmless. But it is a reasonable and legitimate inference of fact that if a man is shown to spend the greater portion of his working hours in canvassing and introducing clients to members of the profession, he is not rendering gratuitous service such as a casual friend or acquaintance may do.

5. In my opinion revision may be entertained in such a case as this. It is a case in which no appeal lies.' I am aware that the contrary view has been expressed by some Judges of this Court in Madho Ram, In the matter of the petition of 21 A. 181 : A.W.N. (1899) 15 : 9 Ind. Dec. (N.S.) 825. The point taken was that the finding was against the weight of evidence. That is not a ground for revision and, therefore, it was not necessary for the Court to decide more. I do not think that it is necessary to invoke the aid of the superintendence section in the Government of India Act, 1915, though it seems to have been held in In Re: Kedar Nath 1 Ind. Cas. 143 : 31 A. 59 : 6 A.L.J. 22 : A.W.N. (1908) 279 : 9 Cr.L.J. 59, that this was one way of questioning orders in this Court. There is no decision binding upon me and I prefer the view taken in Bavu Sahib v. District Judge of Madura 26 M. 596 : 13 M.L.J. 272 where the High Court interfered in revision in a similar case. The matter has been very fully discussed in Hari Charan Sarkar v. District Judge of Dacca 6 Ind. Cas. 327 : 11 C.L.J. 513 : 11 Cr.L.J. 320 where it was held that the revisional jurisdiction could only be entertained in the furtherance of justice.

6. These being the general considerations applicable, I now come to the particular case of each applicant before mo. In the cases of Rup Chand, Iftikhar Husain and Abdul Karim there was ample evidence to justify the order. They were constantly seen to be taking clients about, one of them had taken away one case from one of the witnesses, they had been seen to stop clients, hold them in conversation and apparently take charge of them. The evidence as to their general reputation was very strong. It was urged on behalf of Rup Chand, and I think one of the others, that the Judge had erred in refusing to send for files of cases which would have shown that they were legitimately engaged in litigation in which they or members of their family were interested. This might be so, but it would not negative or prove anything inconsistent with the other evidence called against them. The learned Judge was, no doubt, pressed for time to conclude enquiry before going on leave. He took the right view in assuming that these files would prove what they were alleged to show and that it was superfluous to prove them strictly, because they would not alter his view. I see no reason to interfere with the decision in the case of these three applicants and I, therefore, dismiss their applications.

7. The cases of Nisar Ahmad and Abdul Rahim stand upon a somewhat different footing. I have felt some doubt as to whether I ought to interfere even in their cases. I am not prepared to overrule the findings of the learned Judge on a question of fact of this kind even if I had the power to do so, and it may be that I am stretching the powers of this Court in revision somewhat by interfering at all. I only do so because the evidence as recorded in the Judge's note in these two cases is not very strong, and the Judge feeling admittedly pressed for time and having given- reasons in their oases which are not entirely satisfactory, it is just possible that they may have suffered injustice by being, so to speak, swept away in the general current against their co-defendants. Abdur Rahim had been in the employment for one year of Mr. Abdul Bari, a Barrister against whom the complainants made no suggestion, but who had been temporarily absent from Meerut. Those who mentioned Abdur Rahim said very little about him. Muhammad Husain in cross-examination (see page 58 of the Judge's English notes) really spoke in his favour and mentioned that he had returned to Mr. Abdul Bari's employment. Gauri Prasad said little or nothing about him Ghasi Ram (see page 21 of the English notes) mistook him altogether for another.

8. As to Nisar Ahmad two Pleaders were called for the defence. One with over three years' experience spoke of him as being regularly in the employment, and constantly being seen in the company of Mr. Zamirul-Islam, his employer. Mr. Abdullah Shah had nothing to suggest against the latter (see page 6). Bahal Singh and Ghasi Ram certainly gave positive evidence about his holding clients. Ramji Lal (pages 36-37) on the whole spoke in his favour. In these two cases the learned Judge's reason, namely, that the evidence did not warrant him in rejecting the considered complaint of the Bar Association, is not quite satisfactory. He must form an independent view of his own, though no doubt the opinion of the Bar Association on a matter of general reputation is entitled to very great weight. I am not deciding that his conclusion was wrong. It is a question of fact of which he is a better Judge than I. I merely hold that these two applicants have made out a case for further consideration and I remit their oases to the learned Judge for consideration and for such final order thereon as he, on hearing any further evidence on either side or of the men themselves, sees fit to make. He can, of course, take into account the evidence already given. And in the exercise of my discretion I leave it to the learned Judge to decide whether in the cases of these men he will suspend the operation of the list until he is able to take up the further enquiry. Further than this I decline to interfere,

9. The last case is the case of Kalka Prasad. This case has caused me some difficulty. The applicant was put upon a list in 1908 by the then District Judge of Meerut, the list which gave rise to the decision in In Re: Kedar Nath 1 Ind. Cas. 143 : 31 A. 59 : 6 A.L.J. 22 : A.W.N. (1908) 279 : 9 Cr.L.J. 59. The District Judge reports that he has repeatedly applied to have his name removed as it was impeding his chances of obtaining work in Delhi, but the District Judge, of course, had no material on which to act. The applicant, undoubtedly, wrote to the Court on the 9th of February of this year and received what I may accept as an official reply that no list of touts was then affixed. According to the learned Judge it was also not affixed from the long vacation of 1916 and afterwards. It is clear that the list ought to be exhibited. I think sub Section 3 means that the exhibition of the copy list, there referred to, is necessary to constitute a man a proclaimed tout, though it is not necessary for me to decide that point in this case. But upon further consideration, I have come to the conclusion that the mere removal or failure to keep the list exhibited in the Court of the District Judge of Meerut had not the effect of cancelling the list altogether, inasmuch as it was by the order to be exhibited in all Courts subordinate to the District Court, and its mere removal in one Court out of many would not per. se cancel the original order of 1908. The form, however, adopted by the learned Judge in this particular case has caused some embarrassment. He might have made a further list supplementary to the existing list of 1908 and merely ordered his officials to restore the list of 1908 to the place from which it should not have been removed. In that event the applicant would have had no grievance. As it is, he has the grievance, technical though it may be, that his name has been included in a new list consisting of the old list and the new names added thereto by the order of the 4th of May, and before that was done he was given no opportunity of showing cause. In this case again I decline in my discretion to interfere. Though the applicant's name would not be properly upon the new list and ought to be removed, it is not improperly upon the old list. The section gives the Judge the power, from time to time, to alter and amend the list and under the circumstances, inasmuch as the present applicant is desirous of being heard and may be able to satisfy the learned Judge that if he had been given an opportunity of showing cause his name would not have been included in the list of the 4th of May, I think the learned Judge might well allow an application by Kalka Prasad, if he sees fit to make it, to have the list altered or amended by the removal of his name, on the ground that whatever may have been the case in 1908 he is no longer a tout. The result is, though feeling some doubt in the matter, that I dismiss the application of Kalka Prasad.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //