1. In this case a notice was issued to Mr. Day, a Vakil practising in Agra, to show cause why he should not be dealt with under paragraph 8 of the Letters Patent with regard to certain statements made by him in paragraphs 4, 12 and 16 of an affidavit filed in this Court in Criminal Revision No. 489 of 1923.
2. The affidavit Avas filed in support of a petition for revision ofan order passed by the Sessions Judge of Agra in a criminal appeal, in which Mr. Day had appeared for the appellants. That appeal was unsuccessful. In his affidavit Mr. Day stated that the Sessions Judge had pre-judged the appeal, that he did not wait for the records to come, and that he was so impressed with the opinion which he had already formed in the absence of the record that he did not appreciate the arguments addressed to him, and was some times inattentive. In reply to this affidavit Mr. Bennett, the Sessions Judge, stated that he might have put some notes taken from the copy of the judgment produced in the appeal, but the making of the notes did not mean that he had prejudged the case. He further stated that though the record of the case and other records had not arrived when the hearing was started Mr. Day was allowed to proceed with his address, as he stated that hehad complete copies of the evidence typed out and of other papers, that a telephonic message vvas sent to get the records wanted by Mr. Day and they arrived while the argument was going on, that the hearing of the appeal took about 3 hours and that Mr. Day was wrong in saying that he was at any time inattentive. He also controverted certain other statements made by Mr. Day which are not material o the present proceeding.
3. Mr. Day has been examined by this Court in answer to the charge. He explains that from a note appended to the petition of appeal in the handwriting of the Sessions judge, he formed an impression that the Sessions Judge had already formed his opinion adverse to the appellants, that his impression was confirmed by the Judge not waiting for the records, and that he did not question the honesty of the Judge, but only meant to say that the Judge would have come to a different conclusion, had he done what Section 423 of the Code of Criminal Procedure required him to do. He admits that the. Judge allowed him to say what he had to say and that the records sent for had arrived before his argument was concluded, but he explains that from the attitude taken up by the Judge and from his remark that he was unable to see his points, he honestly felt that the Judge, was sometimes inattentive and unable to appreciate his arguments.
4. It is clear that Mr. Day was absolutely wrong in saying that the Sessions Judge had pre-judged his case, and that the records had arrived at the end of his address. The slip merely contained the preliminary notes the Sessions Judge had made for his own use on reading the copy of the judgment, when admitting the appeal, or setting it down for hearing, it could not in any way represent the final conclusion at which he was to arrive on hearing the appeal. The record of the original trial and the other records summoned by Mr. Day had arrived, before the hearing was concluded, and his statement on that point is, to say the least, not quite accurate. Mr. Day may have thought that when the records came they arrived too late to be of any use to him. But a legal practitioner who chooses to file an affidavit in support of a petition of appeal or revision must swear to the facts as they occur and take scrupulous Care not to conceal or distort them or confound them with hisown impressions hastily formed at the time. From the slip of notes found attached to the record of the appeal, or the refusal of the Judge to wait for the records before proceeding with the hearing, or from his own failure to make an impression on the Judge, Mr. Day had no right to assuihe that the Sessions Judge had made up his mind, of prejudged the case. The Sessions Judge allowed him the fullest possible opportunity for saying what he had to say, and though, it might perhaps have been better for the Judge to have Waited for the record of the case under appeal before the hearing of the appeal was commenced, Mr. Day had no justification for asserting that the Sessions Judge had already formed his opinion or was sometimes inattentive.
5. Mr. Day has now withdrawn the statements made by him in paragraphs 4, 12 and 16 of the affidavit and expressed his unqualified regret for having made them. The Sessions Judge of Agra reports that Mr. Day has expressedlris regret publicly and in opeir Court and has undertaken not to make such reckless statements in future. It would have been necessary for us to take niuch more serious notice of his conduct but for the consideration that he was apparently led in the heat of advocacy to treat his impressions hastily formed, as facts and to describe the stage at which the records had arrived before the close of his arguments, as if they had come at the end of his address when, he thought, they could be of no use to him. As pointed out In the matter of Dwarka Prasad 81 Ind. Cas. 177 : 21 A.L.J. 893: 46 A. 121; (1924) A.I.R. (A.) 253 the menjbers of the legal profession are responsible for the fair and honest conduct of a case and they, cannot be allowed to make personal attacks or reckless and unfounded charges of impropriety or inattention against a Tribunal when the real ground is that the Advocate concerned has failed to make an impression by his arguments on the Court concerned and lost his case in spite of every effort. We are alive to the necessity of preserving and protecting the independence of the Bar and allowing them every rightful opportunity for the proper discharge of their duties, but we cannot allow them to cast aspersions on the conduct of the presiding Judge before whom they have occasion to argue their cases, if they happen to argue without success. The affidavit in the present instance was filed before the decision in the above case was pronounced. It was not confined to a complaint that the usual procedure, prescribed by Section 423 of the Code of Criminal Procedure, was departed from and the Sessions Judge proceeded to hear the appeal without waiting for the record. It contained personal imputations of inattention and pre-judgment which were unfounded and reckless. Mr. Day now recognises his mistake. In these circumstances while we mark our disapproval of his conduct by a warning to him that a repetition would receive much more serious treatment, we accept his expression of regret and direct the papers to be filed.