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Joginder Singh Vs. the Bar Council of India - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtDelhi High Court
Decided On
Case NumberRegular Second Appeal No. 140 of 1973
Judge
Reported inAIR1975Delhi192; 1975RLR15
ActsAdvocate Act, 1961 - Sections 26(1) and 26(3); Indian Contract Act, 1872 - Sections 17; Constitution of India - Article 20(2);
AppellantJoginder Singh
RespondentThe Bar Council of India
Advocates: D. Latifi,; Swantantar Kumar and; H.N. Hingorani, Advs
Cases ReferredMahabir Prasad Santosh Kumar v. State of U.P. and
Excerpt:
constitution - misrepresentation - section 26 of advocates act, 1961 - appellant's (advocate) name been struck off on ground of misrepresentation and fraud - whether appellant had secured enrollment by misrepresentation or fraud - appellant's conviction for moral turpitude indisputable - in absence of requirement as to disclose past conviction appellant not bound to disclose - held, appellant did not commit misrepresentation or fraud. - - (4) on 4th march, 1965, he went to the office of the secretary of the bar council of india and personally received copies of the letters dated 12th january, 1965 and 10th february 1065. forthwith, he wrote an application for permission to inspect the file giving rise to the allegations against him, and said he would like to make a representation.....t.p.s. chawla, j.(1) the appellant, joginder singh, was once an advocate. his grievance is that his name has been struck off the rolls. (2) on 28th march, 1962 he was enrolled as an advocate by the bar council of the state of uttar pradesh. for a short while, he says, he practiced at shaharanpur. he then applied to the bar council of india under section 18 of the advocates act 1961 for the transfer of his name from the roll of the u.p. bar council to that of the bar council of delhi. this application was allowed in october 1963, and thereafter he began to practice in delhi. (3) pursuant to a communication received from the deputy registrar of the punjab high court, the bar council of india sent a notice dated 12th january, 1965 to the appellant saying : 'whereasit has been brought to the.....
Judgment:

T.P.S. Chawla, J.

(1) The appellant, Joginder Singh, was once an advocate. His grievance is that his name has been struck off the rolls.

(2) On 28th March, 1962 he was enrolled as an advocate by the Bar Council of the State of Uttar Pradesh. For a short while, he says, he practiced at Shaharanpur. He then applied to the Bar Council of India under section 18 of the Advocates Act 1961 for the transfer of his name from the roll of the U.P. Bar Council to that of the Bar Council of Delhi. This application was allowed in October 1963, and thereafter he began to practice in Delhi.

(3) Pursuant to a communication received from the Deputy Registrar of the Punjab High Court, the Bar Council of India sent a notice dated 12th January, 1965 to the appellant saying :

'WHEREASit has been brought to the notice of this Council that you made an application for enrolment under the Advocates Act of 1961 to the Bar Council of Uttar Pradesh, that in the said application for enrolment you concealed the fact of your having been previously convicted of offences involving moral turpitude, that by such concealment of an essential fact you obtained your enrolment, and whereas it appears to this Council that this concealment constitutes misrepresentation and fraud within the meaning of the proviso to Section 26(1) of the said Act, and whereas your name is liable to be removed from the roll of advocates under the said section, This is to give you notice to show cause why action be not taken against you.'

The appellant was required to file his written statement within three weeks of the date on which he received this notice, and was informed that his defelice would be considered by the Council on a date to be notified to him when he could appear in person or by an advocate duly instructed. By another letter dated 10th February, 1965, the appellant was informed that the matter would be taken up by the Bar Council on 3rd April, 1965. Both these letters were dispatched to the appellant at an address in Saharanpur. According to the Bar Council they were received by him, but the appellant denies it. It does not matter because the appellant admits that in early March 1965 he learnt that an inquiry was being held against him by the Bar Council of India.

(4) On 4th March, 1965, he went to the office of the Secretary of the Bar Council of India and personally received copies of the letters dated 12th January, 1965 and 10th February 1065. Forthwith, he wrote an application for permission to inspect the file giving rise to the allegations against him, and said he would like to make a representation after seeing it. In a letter dated 11th March, 1965, the Secretary told the appellant that he could come and inspect the file on 16th March 1965 at 12 noon. When, on the appointed day, the appellant went to the office of the Secretary, he found that his original application for enrolment lodged with the U.P. Bar Council, and the connected file had not been requisitioned from that Council. So, there and then he handed over two letters to the Secretary : one asking for those papers to be summoned, and the other requesting that he be given copies of his application for enrolment and of a statement alleged to have been made by him before Mr. Hans Raj, Additional District Judge, Delhi. In answer to the request for copies, the Secretary gave a reply to the appellant on the same day telling him to apply to the appropriate authorities. Later, by a letter of 1st April, 1965, the Secretary informed the appellant that his original application for enrolment had been called from the U.P. Bar Council and would be shown to him when received, if permitted by the Bar Council of India. In this letter the appellant was also informed that time for filing his written statement could not be extended, which apparently the appellant had prayed for, an that now the matter would be taken up by the Bar Council of India on 11th April, 1965 at 11 A.M.

(5) AT. or about the same time the original application for enrolment was received from the U.P. Bar Council, and the appellant was given inspection on 2nd April, 1965. Three days later, by a letter of 5th April, 1965 the appellant complained to the Secretary that he had been allowed to see only pages 1, 2 and 3 of his application for enrolment, and that page 4 had been withheld, and he had not been permitted to make a copy of it or take notes. He protested that he could not obtain proper legal advice unless he had access to all the material oral and documentary evidence which the Bar Council intended to use against him. Furthermore, he now contended, that the notice to show cause had been served on him only on 16th March, 1965 and the period of 3 weeks granted for filing a written statement ought to be computed from that date. He added that he would, of course, appear before the Bar Council of India on 11th April, 1965; but, in view of the inadequate opportunity given to him of looking into the evidence and taking copies, he had been denied an opportunity of making proper preparation for his defense, and that his appearance before the Council would 'not be effective for a final disposal of the matter by it.' In the end he requested that his letter be considered, and that an order be obtained before 11th April, 1965. The Secretary, in ashort reply dated 6th April, 1965, advised the appellant that he could make the representation contained in his letter to the Bar Council of India when he appeared before it on 11th April, 1965.

(6) The appellant and his counsel Mr. Rameshwar Dayal appeared before the Bar Council of India on the date fixed. According to the appellant he prayed to the Bar Council to postpone the hearing of the matter as he had not been given inspection of the record and the copies he had asked for, and hence had not been able to file his written statement. He says, the Council observed that before considering his request they would like to interrogate him, and then proceeded to do so. In paragraphs 3, 4 and 5 of the order which the Bar Council made on 11th April, 1965, this is what they said :-

3.Shri Joginder Singh did not file any statement. He, however, appeared with his counsel, Shri Rameshwar Dayal, Advocate, before the Council at its meeting on 11th April, 1965. As a result of questions asked the following were ascertained from Shri Joginder Singh Nanda. (1) That he was convicted under Section 473 and 411 Indian Penal Code . in three cases resulting in a sentence of imprisonment of one year in each case, to run concurrently. (2) There are still certain criminal cases pending against him and that he is at present on bail. (3) That Shri Joginder Singh Nanda did not disclose to the Bar Council of U.P. at the time of applying for enrolment the fact of his conviction. (4) That the certificate of character annexed to the enrolment application was obtained from a Haveli Munsif with whom his acquaintance was slight and who could really have had no such contact as could enable him, the munsif, to give a certificate of character. (5) That the Haveli munsif did not know of the fact of the conviction nor did Shri Joginder Singh Nanda enlighten him as to it. 4. Shri Joginder Singh Nanda's counsel was heard. He submitted that since there was no column in the enrolment from asking about any convictions or adverse circumstances, Shri Joginder Singh Nanda was not bound to disclose the fact of his convictions, that the non-disclosure of the convictions did not amount to fraud or misrepresentation within the meaning of the proviso to section 26(1) of the Advocates Act of 1961, and further that though the certificate of character may have been wrongly obtained that was not a matter relevant to the issue here. He had fulfillled the only obligation upon him which was to produce a certificate of character. 5. Having heard Shri Joginder Singh Nanda and his counsel and having considered the matter, we are satisfied that the case fall's within the proviso to section 26(1) of the Advocates Act 1961, and that we are entitled to revise the enrolment. We accordingly order that his name be removed from the roll of advocates.'

(7) Understandably, the appellant tried every means to get rid of that order. He moved the High Court of Punjab to quash it, but his petition was dismissed. He applied to the Supreme Court for leave to appeal, but leave was refused. On 20th July, 1966 he made a fresh application for enrolment to the Bar Council of Delhi in which he mentioned that he had been previously convicted of offences. Before this application could be considered he sought to withdraw it on 30th September, 1966. Permission to withdraw the application was refused. The application itself was rejected by the Bar Council of Delhi by an order made on 27th January, 1967. Then, on 13th February, 1967, the appellant applied for review of the order of 30th September, 1966 refusing permission to withdraw the application. The application for review was also rejected.

(8) Ultimately, on 15th April, 1968, the appellant instituted a suit in the court of the Subordinate Judge seeking declarations that the orders made by the Bar Council of India on 11th April, 1965 and the Bar Council of Delhi on 27th January, 1967 were null and void, unconstitutional, ultra vires, without jurisdiction and not binding on the plaintiff, and that the plaintiff continued to remain on the roll of the Bar Council of Delhi. Apart from the Bar Councils whose orders were impugned, the Bar Council of the State of Uttar Pradesh was also joined as a party. Objections being raised as to misguide of parties and causes of action, counsel for the appellant made a statement on 13th November, 1968 that the suit may be treated as if it sought a declaration only in respect of the order dated 11th April, 1965 made by the Bar Council of India, and by an order of the same date the court directed accordingly. It was on that footing that the case was fought.

(9) An objection was also raised that the court had not jurisdiction to try the suit as the Bar Council of India was a domestic tribunal. For the appellant, it was contended, on the authority of Dhulabhai etc. v. State of Madhya Pradesh and another, : [1968]3SCR662 , that the jurisdiction of a civil court was not excluded-

'WHEREthe provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.'

Here, it was said, the Bar Council of India had not afforded to the appellant an adequate or proper opportunity being heard, and could not on the facts have found that he had secured his enrolment as an advocate by misrepresentation as to an essential fact or by fraud- which were the conditions precedent to the exercise of the power conferred by the proviso to section 26(1) of the Advocates Act. That proviso says : 'Provided that the Bar Council of India may, if satisfied, either on a reference made to it in this behalf or otherwise, that any person has got his name entered on the roll of advocates by misrepresentation as to an essential fact or by fraud or undue influence, remove the name of such person from the roll of advocates after giving him an opportunity of being heard; ' The Subordinate Judge held against the appellant on all his contentions, and dismissed the suit. An appeal heard by the Additional District Judge was also dismissed. This is a second appeal before me. The contentions, though, perhaps, more elaborately argued, are the same.

(10) That the appellant had the right to be heard is indisputable, for the proviso expressly grants it. He said that this right had been infringed in two ways : (i) in that he had not been shown the fourth page of his application for enrolment and had thus been prejudiced in his defense; and, (ii) at the hearing on 11th April, 1965 the Bar Council had allowed very little time to him and his counsel to argue the case. These are questions of fact on which both courts below have found against the appellant. They have disbelieved him, and accepted the statement of the Secretary of the Bar Council that he was shown all the pages of his application for enrolment, and was given a patient hearing by the Bar Council. I am bound to accept these concurrent findings of fact; and it was not argued that any grounds existed for interfering with them in second appeal.

(11) But, the main argument before me was on the question whether the appellant had secured his enrolment by misrepresentation or fraud It was not disputed that the appellant was convicted of offences involving moral turpitude before he applied to be enrolled; nor that he had not disclosed these facts in his application. Admittedly, the form of application that he was required to fill in contained no query as to such matters. In these circumstances, it was urged, the appellant was under no duty to volunteer the information; and it could not, thereforee, be held that he had procured his enrolment by misrepresentation or fraud. Whether, in the absence of a specific query, the appellant was yet bound to mention that he had been convicted of offences is the crucial question in the case.

(12) What I regard as a subsidiary point based on the certificate of good character given by the Munsif, had best be disposed of first. The rules made by the Bar Council of Uttar Pradesh under the Advocates Act came into force in May 1963. They did not exist when the appellant made his application for enrolment. Under the Bar Councils Act of 1926 some rules had also been framed. On behalf of the Bar Council of India it was maintained, that these rules continued to be in force by virtue of section 24 read with section 8 of the General Clauses Act 1897 till such time as they were superseded by the rules framed by the Bar Council of Uttar Pradesh under the Advocates Act. In support of this contention I was referred to State of Madhya Pradesh v. A. K. Jain and others, : AIR1958MP162 , Chief Inspector of Mines and another etc. v. Karam Chand Thapar etc., : (1961)IILLJ146SC and Mohan Lul Goenka and another v. State of West Bengal, : 1961CriLJ713 . It is not necessary to dwell on the nice points involved in this argument because councel for the appellant conceded that the Advocates Act 1961 was in pari materia with the Bar Councils Act of 1926; which meant, in effect, that section 24 of the General Clauses Act did apply so as to keep in force the rules framed under the earlier Acl till they were supplanted. Neither the rules under the Bar Councils Act nor those under the Advocates Act require a person applying for admission as an advocate to state whether he had previously been convicted of an offence. Even the Advocates Act itself contains no such provision. The purpose of invoking the rules was merely to show that it was always a requirement, no matter which of the rules applied, that a certificate of good character be furnished with the application. This was not disputed by the appellant. Indeed, that is precisely the reason why he had obtained and submitted a certificate In the certificate the Munsif said the appellant- 'is personally known to me and he bears a good moral character and is a fit and proper person to be enrolled as an advocate.' By presenting this certificate, it was suggested, the appellant had tacitly represented that he had not previously been convicted of an offence. I do not think that necessarily follows. Granting, as was said In the matter of Complaint of Professional Misconduct against Shri lnder Singh, 1963 P.L.R. 619 (5), that a certificate is a solemn assurance of the truth of what it states, it is not to be presumed that a person who has once been convicted of an oftence, even if involving moral turpitude, can never reform and become a person of good character. I know of no such doctrine. It would violate the first principles of the criminal law if there were. Thus, if the Munsif was satisfied when he gave the certificate, that the appellant was a person of good character despite his past bad record, the Munsif did not wrong.

(13) The Munsif was examined as a witness and, in substance, that is what he sought to say. He admitted that when he gave the certificate he was aware that the appellant had been convicted of some offences, but said he was advised by a senior counsel that this was no bar to the giving of a certificate. No doubt his cross-examination lays bare the fact that he did not know the appellant personally and did not make sufficient inquiries. That only proves that the Munsif acted with less circumspection than might have been expected of him ; not that he intended to make a representation that the appellant was never convicted of an offence. A representation of that kind could only be inferred if the Munsif himself was under an obligation to state that the appellant was a convicted person, having become aware of it. At least so far as the Munsif was concerned, the appellant had not suppressed information. Now, I cannot see how the Munsif could owe such a duty to the U.P. Bar Coancil if the appellant did not. Conversely, if the appellant himself owed the duty, he was directly in breach of it; and there is no need them to search for indirect modes of breach through the certificate or by the Munsif. That is why I said that, in my understanding of the case, this aspect of the matter was subsidiary. With these observations, I revert to the main point.

(14) Although section 26(1) of the Advocates Act does not envisage the making of any contract, it was generally agreed that the words 'fraud' and 'misrepresentation' occurring in the proviso ought to be understood in the like sense in which they are defined in sections 17 and 18 of the Contract Act 1872. In any case, no other definition or better guide could be suggested. It is unnecessary to expatiate on those definitions because, again, it was accepted that if the appellant was held to be under a duty to state that he had previously been convicted of an offence, his reticance would amount either to traud or misrepresentation. However, it is important to notice the Explanationn to section 17 of that Act, which says :

'MEREsilence as to facts likely to affect the wilingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence is in itself, equivalent to speech.'

Tha,t shows that whether a duly to speak arises or not depends entirely upon the facts.

(15) Many diverse arguments were propounded to persuade me that 5n the present case no such duty arose. A case was cited which holds that non-disclosure of his minority by a minor entering into a contract does not amount to misrepresentation or fraud : see Sher Khan and another v. Aktar Din, A.I.R. 1937 Lah 598. And another which holds that concealment of pre-martal unchastity by a party to a marriage is no fraud within the meaning of section 12(1)(c) of the Hindu Marriage Act 1955: see Rani Bala Debnath v. Ram Krishna Debnath, 73 C.W.N. 751. To my mind these cases only serve to emphasise how very much the answer turns on the nature of a particular transaction and what it implies. The materiality of the representation in the context of the facts is bound to influence the decision. A representation is material when it induces the representee to act on the faith of it in the way that he does : see Halsbury's Laws of England 3rd edn' Volume 26 page 853 para 1586. I am conscious that the line between what is material and what is not is often hard to draw : see Ratan Lal and another v. Metropolitan Insurance Co. Ltd., : AIR1959Pat413 . Siill, in every case which comes before a court it has, nonetheless, to be drawn.

(16) Having regard to the known high traditions of the legal profession and the functions which its members are expected to perform, I cannot help thinking that those who seek to enter its portals are obliged to declare whether they were convicted of an offence. Especially is this true in respect of offences involving moral turpitude. These are matters which the admitting authority certainly ought to know. They are relevant for ascertaining the character of the man. Character is, and always has ben, a most material consideration for deciding whether to admit a person as an advocate or not. That is the reason for the invariable and indispensable requirement to a certificate of good character. It is the means by which an assurance of good character is obtained. In England no person can be admitted as a student of an Inn with a view to being called to the Bar unless he produces such a certificate or other evidence of good character. Nor, if he has been convicted of a criminal offence of such a nature that in the opinion of the Masters of the Bench his admission is undesirable : see Halsbury's Laws of England, 4th edn., Volume 3 page 596 para 1113. Duties with respect to call to the Bar are duties to the public. Hence, securing admission to the Bar by fraud is punishable as 'an act tending to public mischief : see ibid. page-590 para 1106. Which shows that underlying it all is the public interest, and this was the aspect stressed In the mailer of a Complaint of Professional Misconduct against Shrl Inder Singh, 1963 P.L.R. 619 (5).

(17) Everywhere the governing ideas have been the same. According to the rules framed by the Punjab High Court under the Bar Councils Act 1926, two testimonials of good character and conduct had to be submitted with the application for enrolment. In the application the applicant had to say whether he had been convicted by a criminal court: see Punjab High Court Rules and Orders, Chapter 6 A Rule 2. Due to some mistake or oversight the form of application in vogue in Uttar Pradesh contained no such query. Probably, that was the reason why the appellant chose to apply for admission there. He knew that in Delhi he could not evade the question. In Uttar Pradesh no awkward question was asked. But, question or no question, I think, the nature of the thing he was applying for and the public interest, imposed on him a duty to state that he had been convicted of offences. Broadly, it may be true to say, in counsel for appellant's phrase, 'that no one is bound to advertise his past misfortunes.' There are occasions, however, when he has no option : as for example, when he, of his own volition, applies for that which compels a disclosure. Besides, a conviction for an offence cannot be treated at per with other incidents in a man's life. It is the judicial determination of a man's guilt. In reply to the forceful plea made by counsel for the appellant. I would adopt as apt the words of Bramwell, L.J' in Levman v, Latimer and others. (1878) 3 Ex. Div. 352 where he said:

IT is no doubt desirable that a time should come when a person who has been convicted of felony should cease to be called a felon, and it is cruel to make up what is past; but on the other hand it is part of the punishment for a crime, that the person committing it should suffer opprobrium ; it would be strange to say that a person formerly convicted upon the clearest evidence of felony is no longer felon.'

(18) Then, it was said, that even if otherwise a duty to disclose existed, it was negatived by the fact that the form of application for enrolment asked for some particulars and not others. The maxim expressio unius est exclusive alterius, or, as it is otherwise worded, expressum facit cessare taciturn was called in aid to argue that what was not asked need not be disclosed. As is apparent from the discussion on page 443 of Broom's Legal Maxims, 1969 edn., this maxim is applicable to the construction of written instruments. There is no written instrument here requiring to be construed. The real question is whether, regardless of the form of the application, a duty existed. For reasons I have already stated, f think, it did. Undoubtedly the new section 24A added to the Advocates Act 1961 by the Amendment Act 60 of 1973 has brought about some changes. On the one hand the disqualification resulting from a conviction for an offence involving moral turpitude has been made absolute and is subject to no discretion; and on the other its duration has been restricted till a period of two years has expired after sentence has been served. Far from leading to the conclusion that previously no such disqualification existed, the section is patently designed to prevent it from operating for an indefinite time. In the process it gives evidence of what was before.

(19) A further argument was advanced on the basis of an English statute known as The Civil Rights of Convicts Act 1828 (9 Geo. 4c. 32) : see Halsbury's Statutes of England, 2nd edn.. Volume 5, page 639. summarizing the effect of section 3 of that Act, it is said in Halsbury's Laws of England, 3rd edn., Volume 7 at page 245 para 530, that -

'THEendurance of the punishment on conviction for any felony not capital has the like effect and consequences as a pardon under the Great Seal with respect to the felony,.........'

And, in paragraph 529 on page 244 of the same volume, the following passage occurs :

THEeffect of a pardon under the Great Seal is to clear the person from all infamy, and from all consequences of the offence for which it is granted, and from all statutory or other disqualifications following upon conviction. It makes him, as it were a new man, so as to enable him to maintain an action against any person afterwards defaming him in respect of the offence for which he was convicted, and, in the days when crime disqualified a man from being a wifness, removed the disqualification.'

(20) Initially, counsel for the appellant maintained that tlic English statute applied in India proprio vigore and was still a law in force; but he was unable to establish it. Subsequently, he modified his submission and urged that the statute embodied rational and progressive notions which I ought to adopt as principles of justice, equity and good conscience. The appellant, it was said, had served the sentences awarded to him for the offences of which he was convicted. He was thus cleaned of the offences, and was, 'as it were, a new man'. This transmutation brought about by the law freed him from the necessity of disclosure when he applied to be enrolled as an advocate.

(21) Much reliance was placed for this line of reasoning on a case reported as Leyman v. Latime' and others, (1878) 3 Ex. D. 352. That was an action by the editor of a newspaper for libel by printing and publishing of him in another newspaper that he was 'a convicted felon and also 'a felon editor' The defendants pleaded justification. Upon a demurrer to the justification the Court of Appeal held that the defendants could not succeed merely by proof of the fact that the plaintiff had been convicted of felony: for to justify the words 'felon editor' it had to be shown that the plaintiff had 'actually committed felony', and that a conviction 'of itself is no evidence in any civil proceeding, that the person convicted has committed a felony'.

(22) In my opinion, even supposing it were right for me to act on the English statute as expressing a rule of justice equity and good conscience, as to which I entertain grave doubt, it would not assist the appellant. In the case last mentioned. Cotton, L.J., recognised that the principal object of the statute was to allow persons to be called as witnesses, who had been previously disqualified. Bramwell, L.J., was of the view that the statute was not pertinent to the case at all. Although, Brett, L.J., thought otherwise and was prepared to hold that a person who had endured his punishment, was no longer in law a 'felon', as endurance of the punishment did away with the felony, he said at the end of his judgment :

Ionly wish to add that nothing in our judgment has a tendency to limit the power of inquiry into the previous character of a person tendering himself as a witness : questions may then be put from a justifiable motive, and the occasion is proper; but needlessly to rake up the past misfortunes of another person shows a malignant and wicked frame of mind.'

Likewise, Cotton, L.J., who also thought the statute applied, said: I need hardly say that the statute does not prevent a full inquiry into the past history of any man, whenever it is a matter of duty to form a right estimate of his credibility or character.'

(23) These observations make it perfectly plain that, in the course of an inquiry into his character, the statute would not have relieved the appellant of the duty to disclose that he had previously been convicted of offences. Perhaps, the statute and the case might have been more relevant, if the appellant had made a full disclosure to the U.P. Bar Council, and still been refused admission. He might then, more plausibly, have said, on the analogy of the English statute, that having served his sentence he ought to be treated as a new man'.

(24) That is aJso the answer, or a part of it, to yet anothr argument advanced for the appellant. It was said that even if the appellant had proclaimed that he had previously been convicted of offences, he could not have been refused admission as an advocate by the State Bar Council for that would have amounted to imposing a second penalty for the same offences in violation of Article 20(2) of the Constitution of India. The words of that sub-article are : 'No person shall be prosecuted and punished for the same offence more than once.'

(25) I find it impossible to accept that the refusal of a State Bar Council to admit a person as an advocate comes within the concept of the words 'prosecuted' or 'punished' as there used. Certainly the majority judgment of the Supreme Court of the United States In the mailer of A.H. Garland, 18 Law Ed. Wallance 3-6 page 366, 10) holds that:

'EXCLUSIONSfrom any of the professions or any of the ordinary avocations of life for past conduct, can be regarded in no other light than as punishment for such conduct.'

(26) But, I think, they were using the word 'punishment' in a loose sense. For my part, I would agree with the very powerful dissent delivered by Mr. Justice Miller, with which the Chief Justice and Justices Swayne and Davis concurred. The minority judgment demonstate; conclusively the serious ffaws in and the grave consequences of the decision of the majority.

(27) Moreover, the facts of that case were rather special. The petitioner had been pardoned by the President of the U.S.A. for certain facts committed by him during the American Civil War. Nevertheless, he was required by an Act passed by Congress to take an oath that he had never committed those acts as a qualification for admission as an attorney of the Supreme Court. This rendered the pardon granted by the President largely ineffectual. In resolving this conflict the majority held : It is not within the constitutional power of Congress thus to inflict punishment beyond the reach of executive clemency-'

(28) I doubt if the majority judgment can be taken as a guide for interpreting the word 'punishment' in Article 20(2) of the Constitution of India. Even if it were, it would avail the appellant only if he had made a candid disclosure of his past, and the U.P. Bar Council had then sought to 'punish' him by refusing to enter his name on the rolls.

(29) It is significant and worth noticing for the present purpose. that both the judgments in that case acknowledge unreservedly the great importance of atorneys being men of good character. From that point of view the case is against the appellant.

(30) Towards the end, in the reply on behalf of the appellant, some new points were raised. It was contended that the order made by the Bar Council of India could not he sustained because it was not a speaking order. I concede that the order made by the Bar Council of India was of a quasi-judicial nature and reasons had to be recorded : see The State of Punjab v. Bakhtawar Singh and others, 1972 S.L.R. 85 and M/s. Mahabir Prasad Santosh Kumar v. State of U.P. and others, : [1971]1SCR201 . But, I think, it speaks enough. Although the last paragraph of the order is somewhat laconic, the reasons for the decision of the Bar Council are quite apparent when it is read in the background of what precedes it. True, the order does not specifically say whether the appellant had secured his enrolment by fraud or by misrepresentation as to an essenlial fact; but it is obvious that the Bar Council was satisfied that it was either the one or the other, and that the case was covered by the proviso to section 26(1) of The Advocates Act. Be it noted, also, that this point was never raised in the courts below or even in the grounds of appeal, which shows that until the case was argued here, the appellant experienced no difficulty in comprehending the order.

(31) Finally, it was urged that by the rules of natural justice the appellant was entitled to notice of what was charged against him so that he could make his answer : see Maradans Mosque v- Badi-ud-din- Mahmud (1966) 1 A.I.R. 545, And, if that was not done, the Bar Council for India would have no right to take into consideration a matter of which notice had not been given : sec Anisminic Ltd., v. The Foreign Compensation Commission and Another, Air (1969) 1 208. Applying these propositions to the present case, it was said that in the notice requiring the appellant to show cause against their proposed action, the Bar Council had not alleged that he had obtained the certificate of character by deceit or falsehood; yet they took this matter into account whilst making their order despite the objection of the appellant that it was not relevant.

(32) I do not think that the order of the Bar Council lends itself to this construction. The falsity of the certificate of character is referred to in that part of the order which records the answers given by the appellant and the submissions made by his counsel. There is nothing to suggest that the ultimate decision of the Bar Council was based on the finding that the certificate of character produced by the appellant was untrue. As I understand the order, it holds that the appellant had gained admission as an advocate by fraud or misrepresentation in that he had refrained from disclosing that he had previously been convicted of offences. The facts on which that conclusion rested were admitted by the appellant. Merely because the certificate was referred to in the interrogation of the appellant, or in the argument of his counsel, docs not mean that the Bar Council relied on it, or the surrounding circumstance, for the purpose of reaching its decision.

(33) These were all ihe conitentions raised on behalf of the appellant. I am not persuaded that any of them is sound. Accordingly, the appeal fails and is dismissed with costs.


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