1. This is a reference under Section 14, Legal Practitioners' Act, against a pleader of Sonepur, made by the District Magistrate of Bolangir, through the Sessions Judge of the District. It arises out of a petition dated 22-1-51 sent to the District Magistrate by the pleader on behalf of the petitioners therein. That petition arose out of a criminal case in the following circumstances. There appears to have been a dacoity in the house of one Bhagirathi Gountia of Bhowanipalli, P. S. Binka, on 20-7-50. In the course of the investigation into that case under Section 395, Penal Code one Karu Khutla and ten others were suspected of being involved in the dacoity. They were accordingly arrested and made accused in that case. After a series of remands the police submitted a final report of the investigation recording that the case was true but that there was not sufficient evidence to place the accused on trial. The Sub-Divisional Magistrate, thereupon, by his order dated 13-11-50 discharged all the accused persons. The petition which has given rise to these proceedings was filed nearly two months later on 22-1-51 and is as follows:
'Ext. 2 Petition of Dukhu Bhoi and others tothe Dist. Magistrate, Bolangir, filed throughShyama Sundar Misra, Pleader, dated 22-1-51.
The District Magistrate, Bolangir.
The undersigned beg to lay the fewfollowing lines for your kind considerationand orders:
1. That a criminal case G. R. No. 124 of 1950, under Section 395, Penal Code had been maliciously started against the petitioners without reasonable and probable cause.
2. That the informant Bhagirathy Gountia of Bhabanipalli under Binka P. C. had instituted the criminal proceeding against the petitioners knowing there is no just and lawful grounds for such proceeding against the petitioners and during police investigation he identified the accused (petitioners) that they committed the crime.
3. That the informant deliberately wanted to cause injury to the petitioners who being innocent, illiterate and ignorant men were found not guilty and discharged.
4. That the informant falsely charged the petitioners in the alleged crime of dacoity, as a consequence of it they were arrested, detained in the jail for three months. Thus they suffered mental agony, physical degradation of health and their cultivation suffered a loss. The prestige of themselves and the modesty of their females were lost. Their houses were rocked.
5. That Sri J. Das, the S. D. O. Sonepur, who was once befriended by the informant at the time of duck-shooting has not taken any action against the informant in the false charge. The informant being a rich and influential man is not charged under Section 211, Penal Code, for the false charge against the accused who unnecessarily underwent so many troubles set forth above.
6. That for the ends of justice the petitioners want that the informant be given a lesson for the malicious prosecution against the accused (petitioners).
7. Under the above circumstances the informant has committed the offence under Section 211, Penal Code and criminal proceedings may be kindly started against him for the ends of justice.
We, Dhukhoo Bhoi and others do declare that the above mentioned contents are true to our knowledge and behalf.
I identify the petitioners who have signed in my presence.
Sd/- Shyam Sunder Misra, Pleader,
On receipt of this petition, the District Magistrate called for a report from the Sub-Divisional Magistrate, Sonepur. On perusing his report, he felt satisfied that the S. D. M. was justified in not taking action, and, therefore, did not proceed to consider the prayer of the petitioners in that petition any further. But he appears to have thought that para. 5 of the petition contained an obnoxious allegation against a Magistrate exercising judicial discretion. He, therefore, called on the pleader concerned to file a written apology. The pleader declined to offer any, and consequently, these proceedings have been started against the pleader.
The learned District Magistrate conducted an inquiry, and framed a formal charge. In addition to the evidence of the Sub-Divisional Magistrate, viz., Sri J.N. Das, and the pleader concerned, as many as six witnesses have been examined for the pleader. Both the District Magistrate as well as the Sessions Judge have concurred in reporting that the pleader was guilty of professional misconduct; but in view of his youth and inexperience, have recommended that he should be let off with a warning.
2. The formal charge framed against the pleader is that para. 5 of his petition dated22-1-51 referred to above is obnoxious and contains allegations against a Magistrate exercising judicial discretion and accordingly amounts to professional misconduct. It is further stated therein that the District Magistrate called for a written apology & that the pleader did not care to offer one. It is not clear whether this has been included as a charge of professional misconduct. It has probably been narrated in the charge as a justification for starting these proceedings. I must notice, however, that I am unable to see what power or jurisdiction the Magistrate had to call upon the pleader to file an apology. His function is only to send up a report after inquiry, if he thought that a prima facie case for a report has been made out.
3. In para 5 of the petition which is objected to, is the following statement:
'That Sri J. Das, the S. D. M., Sonepur, who was once befriended by the informant at the time of duck-shooting has not taken any action against the informant in the false charge. The informant being a rich and influential man is not charged under Section 211, Penal Code for the false charge against the accused who unnecessarily underwent so many troubles set forth above.'
It is to be noticed that the petition itself was in the nature of a complaint against Bhagirathi Gountia of Bhawanipalli under Section 211, Penal Code for having given false information against the petitioners and having involved them in a dacoity case,
Para. 5 of the petition objected to, has no direct relation to any of the facts constituting that complaint. It has presumably been inserted in this petition as a justification for approaching the District Magistrate direct for redress instead of making the application to the S. D. M. himself. The S. D. M. in his evidence says that he inferred from the above para. 5 an implication of dishonesty. But this is clearly not so. It is only an allegation that the S. D. M. being a friend of the complainant, on account of a prior incident, and complainant being a rich and influential man, the S. D. M. was soft towards him and has therefore not taken any action against him, for the false information he is said to have given against the petitioners, and the consequent harassment and injury caused to them. While no doubt this is some insinuation of unjudicial conduct of the S. D. M., I cannot help saying that I am surprised that the officers concerned have taken the allegation as something so serious as to require the initiation of proceedings against a legal practitioner by way of professional misconduct.
The sensitiveness exhibited by the Sub-Divisional Magistrate in his report dated 15-4-51 to the District Magistrate by suggesting action against the pleader for the insinuation made against him is all the more remarkable, in view of the evidence given in this case. That evidence shows that this Magistrate probably acted in an irresponsible and highhanded manner in indulging in duck-shooting in the village Bhawanipalli and thereby injuring one Lal Behera. This brought out the enraged villagers with armed stricks against him. It also appears therefrom that Bhagirathi Gountia of the village (who was the complainant in the dacoity case) saved him from this mob-fury by giving him shelter in his house.
These facts appear clearly from the evidence of O. P. Ws. 3, 2, 3 and 4, the villagers of Bhabanipalli who have been examined on this inquiry. The attitude and action of the Sub-Divisional Magistrate in relation to the -shooting incident, as disclosed by the evidence of those witnesses, and his evidence now given on this inquiry in which he even denies having injured anybody by the shooting, does no credit to him. His sensitiveness at the implication in para. 5 of the petition appears to be tell-tale.
4. There is no doubt, however, that para 5 of the petition which has been marked as Ext. I on the inquiry, does contain an insinuation of unjudicial conduct against the S. D. M. The question that has been raised has, therefore, to be considered, i.e., whether or not the pleader in having made that insinuation is guilty of professional misconduct. The pleader has filed a statement wherein he says that whatever was written in the petition was written after due verification, that is according to the knowledge and belief of the petitioners who had instructed him to file it and that he satisfied himself that his clients were making the statement being put under an aggrieved condition and that he acted in good faith and honest belief and that he had no ulterior motive. He maintains that he did not exceed his privilege as a lawyer in filing that petition.
In support of his plea he has filed, in the course of the inquiry, a letter of authority, given to him by the petitioners in that petition, which is marked as Exhibit 2 and on the basis of which, according to him, the petition as Exhibit 1 was drafted. In that letter, the petitioners having stated that at the instance of false information given against them by Bhagirathi Gountia of Bhowanipalli by way of naming them and identifying them as having participated in the dacoity, they were involved as accused in the dacoity case and suffered serious injuries, proceeded to state as follows:
''Besides this, the S. D. M. of Sonepur, Sri J.N. Das had gone (sometime ago) to Bhawanipalli for shooting birds. At that time he caused injury to one Lal Behera and thereafter took shelter in the house of the Gountia of Bhawanipalli. Further, Bhawanipalli Gountia is a rich and influential man and on account of his position, we have had to undergo so much of difficulties. (In this context,) when we represented to the S. D. M. Sri J.N. Das why no action has been taken against the Bhawanipalli Gountia, he became angry and did not do anything. We, therefore, hope that we will get justice from the District Magistrate. For this reason, you will draft a petition mentioning all the above matters and give it to the District Magistrate. EC it also known that all the facts stated above are true and in particular what is stated in para. 4 (i.e., about the bird-shooting incident), and that if any question arises in any Court about any of these matters, we are responsible to give our oath in support of the same.'
It is not disputed that the pleader concerned has acted on the strength of this letter, Ext. 2, which contains the above instructions. The view taken by the District Magistrate and the Sessions Judge is that these instructions were not enough to authorise the pleader for whathe has stated in para. 5 of the petition, Ext. 1, and that the pleader acted irresponsibly in conveying the imputation contained in para 5 of Ext. 1. They have gone elaborately into the question whether or not the S. D. M. was or was not justified in not taking action against the complainant, Bhagirathi Gountia, for an offence under Section 211, Penal Code. It appears to me that is an irrelevant question and that the said approach to the crucial matter involved in this case is misconceived. The question is not whether the Magistrate was justified in not taking action, but whether the pleader was justified in acting as he did on the instructions contained in the letter Ext. 2. The only two assertions of fact that the alleged objectionable para. 5 of the petition Ext. 1 contain are: (1) that in connection with the duck-shooting incident, the Magistrate was a friend of the Gountia; (2) that as a fact the S. D. M. did not take any action under Section 211, Penal Code against the Gountia for the false charge against these petitioners.
5. So far as the first is concerned, not only has that now been amply proved by the evidence adduced in the inquiry but it was obviously enough for any responsible legal practitioner in that situation to make the statement in para 5 of Ext. 1 on the strength of the signed statement, Ext. II, by his clients who assured him that they were prepared to support the veracity of that assertion by their oath in Court, if called upon to do so.
So far as 2nd statement in the petition is concerned, viz., that the Magistrate did not take any action against the Gountia, it is the admitted fact no action has been taken. All that can be said is that the insinuation implied in that paragraph is that the inaction was deliberate and was the result of the softness on the part of the Magistrate towards Gountia, due to previous obligation and due to his position and influence, and that such an insinuation is not borne out on that record. Evidence has been given by O. P. Ws. 4 and 5 who are the petitioners and who have signed the petition, Ext. 1, and the letter. Ext. 2, that they did actually file an application and that the S. D. M. said that no action would be taken against the Gountia.
As against this, the S. D. M. has in his evidence, sworn that no such petition was filed in his Court, but clarifies it later by saying that after receiving the present petition for report, he looked into the records and found that no petition was filed to proceed under Section 211. Whether as a fact any such petition was filed or not, the statement made in para 5 was not an irresponsible assertion that a petition bad in fart been filed, and that no action had been taken thereupon. It was a bald statement that no action was taken as a fact, of course with the implication that the inaction was deliberate, but without any assertion that a petition was in fact filed.
The assertion that no action was taken end that it was deliberate, was obviously based on what the petitioners stated in the letter of instruct ion, Ext. 2 in which the petitioners have stated that when a representation was made to the S. D. M. as to why he did not take any action, he became 'angry' and did not do anything. Whether this assertion in the letter Ext. 2 was intended to convey or was understood to mean that the S. D. M. did not takeany action suo motu when asked to do so, or whether his anger and inaction was on a written application or on an oral request made to him, has not been clarified, nor has it been elicited from the two witnesses O. P. Ws. 4 and 5, nor from the pleader himself.
But I can see nothing unjustifiable in the pleader acting upon the positive and categorical statement made by the petitioners in Ext. 2 that the S. D. M. got angry when the matter was mentioned and inferring deliberate inaction as a result of previous friendship. I see nothing out of the way in the legal practitioner assenting to convey to the higher Court for redress that inference as an explanation for the S. D. M. himself not having been approached in the first instance. The learned District Magistrate, however, has attempted meticulously to point out that while it may be that the S. D. M. was under an obligation to the Gountia with reference to a previous incident and while it may be that in fact, there was no action taken by the S. D. M. against the Gountia under Section 211, Penal Code, the pleader should have satisfied himself that one was the cause and the other was the effect before conveying the insinuation that he did in para 5 of his petition.
It is with reference to this aspect of the matter, that he was at pains to make out that the S. D, M. had ample justification to take action, having regard to the facts and circumstances of the case, and the learned Sessions Judge has also rather easily followed the same line. It has also been suggested that this very pleader was appearing for these accused when the proceeding under Section 395, Penal Code was pending on the file of the S. D. M. arid that, therefore, he must have known all about it and consequently must have realised the untenability of the imputation conveyed. I cannot, however, agree that that is the way to look at the limited question involved in this case as to the responsibility of the legal practitioner under these circumstances.
6. All that was required in the present case to justify the pleader in taking the responsibility for making the imputation of deliberate inaction owing to the softness towards the complainant in the dacoity case is whether he had sufficient reason to believe that that imputation was not ill-founded or reckless. His clients had taken the responsibility of stating that, in connection with the previous duck-shooting incident, the Magistrate was under an obligation to the Gountia. That it was a one-year old incident does not lessen the sense of obligation when an occasion for repaying it arose. They also told him that when the Magistrate was asked about action against the complainant he got angry and took no action. Both these facts his clients were prepared to substantiate on oath when required.
In these circumstances, if his clients felt aggrieved and wanted redress in a higher Court, it is not for the legal practitioner to sit in judgment over the truth of what all they stated to him, in spite of the fact that they undertook to substantiate the truth thereof, when required, by giving sworn evidence. Nor is it reasonable to expect that he is to make a preliminary investigation as to the truth of these statements. The question in such a situation is not whether the insinuation or the implication itself and the facts on which thesame is based are found on inquiry to be prima facie true, but whether the facts have been reasonably vouched for and whether on those facts there is a reasonable case to be put up to the higher authorities involving the imputation. On that limited question, and with reference to the assertions as made in petition, Ext. 2 and as vouched for by the signatories thereto, the inference of unjudicial attitude is certainly a matter of opinion and it is not possible to say that the pleader concerned had no reasonable ground for thinking that that imputation was irresponsible.
A consideration of the cases referred to both by the District Magistrate and the Sessions Judge would show that they have misapprehended the principles involved in this case and have attempted to judge the matter as though a legal practitioner in those circumstances has the duty of distrusting his clients in every case where any imputation against a judicial officer is made and that he is under the duty to make some kind of external and independent investigation and satisfy himself that the imputation is in fact true. This, as I shall presently show, is not the law as I understand it.
7. In the present case, however, I am also satisfied on a careful scrutiny of the records of the S. D. M., Sonepur, in case No. G/124/51 which have been called for by the Court for reference, that even on the stricter standard adopted by the S. D. M. and the District Judge, no irresponsible action can be imputed to the legal practitioner in this case. The Magistrate has assumed that the pleader has been appearing for the accused in the case and must have known all about the case, and all that transpired in the course of the investigation and that he should have realised that the Magistrate could not have taken action under Section 211 against the complainant.
All that appears, however, from the record is that this practitioner applied for bail on behalf of some of the accused on two independent occasions: (1) on 14-8-50 when bail was refused and (2) on 30-9-50 when bail was granted to all excepting three. On each of these occasions, he filed a separate Vakalat as appears from the record. It looks, therefore, prima facie that he appeared only on those particular occasions and had nothing like a standing brief for these accused right through.
The proceedings, it must be remembered, were at the time only in the stage of investigation. There is, therefore, 110 justification for the supposition that he must have known all about how the investigation against these persons proceeded. This is to assume, without any proof, that he knew or must have known everything as to the contents of the final report filed by the police on 13-11-50 on the basis of which all the accused were discharged. That final report itself, however, when perused shows that while the complainant mentioned the names of none of the accused in the F. I. R. which he lodged with the police, he gave out and purported to identify all the accused only in the course of the investigation.
It also appears that it is only as against three of the accused persons other than the complainant supported him. It also appears that on searches during investigation nothing of an incriminating nature was recovered from the houses of any of the accused. Therefore so far as the accused other than above three areconcerned, there is nothing at all except the belated word and the purported, identification of the complainant which the police themselves thought was not sufficient material for prosecuting them.
It may be that the case was not proceeded with owing to alleged defects in investigation. But what the District Magistrate and the District Judge have failed to notice is that the application, Ext. I is mostly on behalf of those persons against whom even in the investigation stage the only testimony was the belated statement and identification of the complainant himself, and that even if the dacoity was true, those harassed accused were entitled to ask the Magistrate to look into the question whether their being involved in the case and being put into the jail for some time was not consequent upon some maliciously false information given by the complainant to the police against them during investigation. This has nothing to do with defective investigation.
It appears to me, therefore, quite clear that the petitioners in Ext. I had a legitimate grievance. While not necessarily saying that in these circumstances, it was the suo motu duty of the S. D. M. to start proceedings against the complainant, even without any application written or oral by the accused, there was every legitimate reason for the legal practitioner to act on the instructions of his clients as given in Ext. 2 and for conveying by implication in the petition, Ext. I that the inaction of the Magistrate on what he might have believed to be either written or oral representation to him by his clients, was due to the softness of the Magistrate towards the complainant. This view of the facts would be enough to dispose of the matter and absolve the legal practitioner completely from any charge of professional misconduct.
8. Since, however, both the District Magistrate and the Sessions Judge have referred intheir order to the law on the subject, which inmy view they have misapprehended, it is necessary to explain what exactly the legal positionin such situation is. There can be no doubtthat a legal practitioner is under a duty notonly to his clients, but to the Courts in whichhe appears for them, and to the judicial officers thereof. As stated in the case in -- 'Dwarka Prasad Mithal, In the matter of, AIR 1924All 253 (FB):
'Members of the legal profession are under no duty to their clients to make grave and scandalous charges either against the Judges or the opposite parties on the mere wish of their clients. They are not agents of the man who pays them, but are acting under the administration of justice, and in matters of making applications to Court, they are bound to exercise an independent judgment, and to conduct themselves with a sense of personal responsibility. If they fail to act with reasonable care and caution, they are unfit to enjoy the privileges conferred upon them by law, and serious breaches must be visited with punishment.'
In nothing that I propose to say hereafter, do I wish to be understood, do in any measure departing or detracting from this strict and wholesome standard as laid down above. But the standard so laid down must be reasonably understood in actual practice. This cannot be understood to mean that on every occasionwhen a client comes to a practitioner with some kind of grievance against a judicial officer as a ground for invoking relief from a higher Court, the legal practitioner can be expected to conduct something like a preliminary investigation as to whether the allegations on which that grievance is based, are true. The insistence on such a standard on pain of proceedings for professional misconduct would hamper the free and independent exercise of the profession and would deny to the litigant the assistance of the lawyer when he has a legitimate grievance. Undoubtedly, the lawyer must exercise reasonable judgment and caution in acting upon the instructions of his client in such matters. But what he is bound to satisfy himself about is not whether the allegations are prima facie true, but whether there is enough material on which there is a reasonable case to be presented to the higher authority for that authority's investigation. What material would be reasonably sufficient according to that standard must depend entirely upon the gravity of the allegation, on the reasonable availability of relevant material at hand, on his personal knowledge or means of personal knowledge, if any, and on his reasonable belief as to the responsibility and integrity of his client and on the steps he has taken to satisfy himself. While he is not bound to take the bare statement of his client at its face value, neither is he bound to reject it in the absence of independent proof or corroboration. The value that a lawyer should place on the instructions of his client and on his authorisation to convey to the higher authority any imputations against subordinate officers, and the care and responsibility which he must exercise in satisfying himself that there is reasonable ground for conveying the same for proper investigation by the higher authority, are all matters about which it is not possible to lay down any fixed rules. There can be no doubt, however, as above stated that the nature and gravity of the charge, his own personal knowledge, if any, or his trust and confidence as to the integrity and responsibility of his client and other circumstances have a material bearing on the question whether he has acted with the kind of care and caution that is required under such circumstances. All that is necessary to state for the purpose of this case is that it would be erroneous to treat that duty, as a duty to investigate the truth or otherwise of the allegations and to assume that the legal practitioner would be guilty of professional misconduct in conveying those imputations to higher authority for redress, unless he himself is satisfied that they are prima facie true. As stated already, his only responsibility is to satisfy himself that there is reasonably sufficient material for asking the higher authority to look into the matter and that' the imputation is not baseless or malicious. This, to my mind, is clearly the law as appears from the very case in -- 'K, a Pleader In the matter of, AIR 1934 Pat 598 (SB), which appears to have been misapprehended by the Courts below. In that case his Lordship Mohamad Noor J. at p. 603 stated as follows:
'It is not the duty of the lawyers about to be engaged in a case to go and inquire about the truth or otherwise of the allegation from the man against whom a suit is going to be instituted. When a pleading contains allegations of fraud or collusion or other similarcharges, the duty of the pleader ends when he has satisfied himself that his client was not making a reckless and irresponsible statement and that he has some material on which he bases his charge. It is not necessary that the pleaders themselves should have inquired into the truth of the charge as the learned Munsif seems to think. It was enough if they, believed that there were grounds for making the charge. It may be sometimes difficult to draw a line between the two, viz., satisfying whether the allegations are true and satisfying whether there are grounds for making the allegation; but in practice there should be no difficulty in deciding whether the allegations were recklessly made or whether there were grounds for making these allegations. There is a difference between the responsibility of a party and that of his lawyer. While the former makes himself responsible for the truth of the allegation the latter is only to satisfy himself that the allegation has foundation.'
The same was the standard adopted though not elaborated in the case in -- 'a Pleader, Gudivada In re', AIR 1946 Mad 538 (FB), where Leach, C. J. while emphasising that an advocate has a duty not only towards his clients, but that he has also other duties and responsibilities laid down that before acting on the instructions of the client for making a charge of fraud against a commissioner appointed to give delivery of possession in court-auction, the advocate had to satisfy himself that there are reasonable grounds for the allegation. (Not, it may be noted, that there was reasonable material to show the truth of the allegation.) My attention has been drawn to certain dicta in -- 'S. Mukhtar, Madlepura, In the matter of, AIR 1929 Pat 151 (FB). I do not understand that case to lay down any different standard in such cases.
In this context, it is relevant to refer to Section 149, Evidence Act, which has given an indication of what the law expects of a legal practitioner in conveying to a witness in cross-examination a serious imputation against him. Illustrations (a) & (b) to Section 149, Evidence Act, are instructive: (a) A barrister instructed by an attorney or vakil that an important witness is a dakait. That is a reasonable ground for asking the witness whether he is a dakait.'
Illustration (b) says:
'A pleader is informed by a person in Court that an important witness is a dakait. The informant on being questioned by the pleader gives satisfactory reasons for his statement.'
The difference between the two illustrations is obvious. In the first, the instruction is conveyed by a responsible person like an attorney or pleader. The barrister, therefore, is justified on merely acting on such instructions. In the second illustration, the informant is an illiterate person; therefore the pleader is expected to put a few test questions and satisfy himself that the imputation has a reasonable basis; and if so, he is well within his limits in putting the question in cross-examination. Both these illustrations clearly show that the responsibility of a lawyer in that situation is not to satisfy himself about the truth of the imputation, but as to whether there is reasonable basis for making the imputation.
These illustrations are no doubt with reference to the responsibility of the cross-examining lawyer as regards the witnesses appearing in any such case, and it is unnecessary for the purpose of this case to consider whether the standard of care required is different when imputations are made against subordinate judicial officers. It is certainly arguable that the standard required, where the imputation is against a judicial officer, is higher. These illustrations are only helpful to show that the requirement as to investigating the prima facie truth of the allegations before conveying the same, cannot be insisted on as a condition of due and proper discharge of the professional duty of the lawyer in any case which he has to conduct. He is only required to come to a summary decision within his own mind and on the spot with reference to such material as is reasonably available to him in the situation before conveying the imputation.
It is, however, necessary to emphasize that this limited standard is applicable only to cases where the imputation is one to be conveyed to a higher authority, as arising with reference to the matter to be presented for redress. Different considerations would apply to allegations and insinuations conveyed wantonly and out of the way and having no reasonable connection with the matter to be presented to the higher authority. In this latter case, the fact that the lawyer conveys such an allegation in the course of his professional work would not by itself absolve him from the charge of professional misconduct.
There can, therefore, be no doubt in all such cases in view of the somewhat delicate standard that has to be applied, a legal practitioner would have to take the utmost care and reasonably avoid unnecessary risk. But it is quite a different matter to pronounce a legal practitioner as guilty of professional misconduct merely because he has not taken the care to make a preliminary investigation of the truth of the allegation in such a case as the present.
9. For the reasons above stated, I am quite clear that the legal practitioner concerned in these proceedings cannot be held guilty of any professional misconduct. He must be acquitted of the charge made against him and the reference is answered accordingly.
10. I agree.
11. I agree.