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Chimanlal Bhogilal Singh and anr. Vs. Pandurao Bhailal Desai and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1962CriLJ329; (1962)GLR27
AppellantChimanlal Bhogilal Singh and anr.
RespondentPandurao Bhailal Desai and anr.
Cases ReferredIn Maganbhai Nathsbhai v. Dinkarrao N. Desai
Excerpt:
.....however, was placed upon the resolution dated the 25th of august 1959, where no doubt it was stated that certain questions having arisen and the association having thought it necessary to consider certain technical defects, in the resolution passed on the 25th of june 1959, it authorized the honorary secretary of the association to issue the notice dated the 21st of august 1959 mentioning the purpose......or not but the purpose of the meeting was to see that the technical infirmities in the previously passed resolution were removed. botfly the notice dated the 21st of august 1959 and the resolution of the 25th of august 1959, however, state in clear terms that though it was felt by the association that there might be some legal infirmity in the previously passed resolution, the purpose of the meeting of the 25th of august 1959, was to consider the question whether the 80 persons mentioned in the notice, itself were touts or not. in view of the clear words both in the notice and also in the resolution that this was the purpose for which the special meeting was convened, it cannot be rightly contended that the purpose was not the one contemplated under section 36 of the act or that the.....
Judgment:
ORDER

J.M. Shelat, J.

***

5. Both Mr. Pathak and M.C.C. Patel appearing for the two petitioners agreed that the action taken by the learned Sessions Judge was on the report of the President of the Association (Ahmedabad Criminal Courts Bar Association - Ed.), which report as the Rojnama Indicate, was made on the 30th of June 1959. They argued that that report was on the basis of the resolution passed at the meeting of the 25th of June 1959. They contended that that meeting was not a specially convened meeting as required by the explanation to Section 36 of the Act (Legal Practitioners Act-Ed.) as the notice dated the 18th of June 1959 convening that meeting did not set out the list of persons against whom action was proposed to be taken. It was contended that in the absence of such a list in that notice, the members who were present at the meeting and who voted for the Resolution had no opportunity to consider and if necessary to make their own inquiries about the person or persons whether he was a tout or not before such a member voted at the meeting,

6. Section 36 of the Act creates a special jurisdiction for the several authorities mentioned in Sub-section (1), The provisions of Section 36 are undoubtedly of a drastic and unusual nature and since such an inquiry is likely to affect both the prestige and the livelihood of a person sought to be declared a tout it has to be conducted strictly in accordance with the Procedure laid down in that section. Section 36 and the explanation annexed thereto lay down three essential conditions which if complied would make the resolution of the Association admissible as evidence of general repute of the person against whom the inquiry is held. These three conditions are:

(1) that the meeting at which the resolution is passed must be the meeting of persons entitled to practice as legal practitioners;

(2) the meeting must be a specially convenes ed meeting for the purpose of declaring a person to be a tout; and

(3) the resolution passed at such a meeting declaring a person to be a tout must be one by a majority of the legal practitioners present at the meeting.

So far as the conditions (1) and (3) are concerned, no objection is raised on behalf of the petitioners, The objection is with regard to condition No. 2, Mr. Pathak and Mr. Patel complained that the list made by the committee appointed by the Association of persons to be declared as touts was not annexed to the notice dated the 18th of June 1959; nor was the list annexed to the agenda of the meeting, which agenda was set out at the foot of the notice dated the 18th of June. It was, therefore, contended that the meeting which has passed the resolution of the 25th. of June 1959 cannot be said to be specially convened for the purpose of declaring a certain or a named person or persons to be tout or touts. Reliance was placed upon two decisions - one of Sind and the other of Bombay. In Achar Khuda Baksh v. Bar Association Karachi AIR 1937 Sind 4, it was held that the words 'any person' appearing first in the explanation to Section 36. mean 'any named person' or 'any specified person,' and, therefore, the meeting of the Bar Association must be specifically concerned for the purpose of declaring any person or persons whose name or names are before the meeting when it is convened, to be or not to be a tout. The learned Judges therefore observed that to hold otherwise would be to allow surprises to be sprung upon the meeting & for persons to be declared touts with out due warning, to the members of the Association, Who, if they had had notice, might have made inquiries, quite apart from the fact that members absent might have been present, if they had notice of the names which Were to be brought before the meeting. It appears from the facts stated in that decision that one Achar Khuda Baksh who was to be declared a tout by the learned Additional Judicial Commissioner, Karachi, was not named, amongst persons who were to be considered touts, in the notice, convening the meeting and that while certain names were before the meeting, when it met, the name of Achar was proposed and seconded by certain members of the Association during the course of the meeting, and it was on this resolution so made and seconded during the course of the meeting, that the members of the Association unanimously resolved him to be a tout. The learned Judges, held that the resolution so passed suffered from infirmity sir1 therefore, could not be regarded as having any evidentiary value. The learned Judges, however, held that the affidavits filed by the applicant contained confessions as to his association with pleader, and observed on the strength of those affidavits that though the resolution of the Bar Association was depended by reason of the infirmity therein, of any evidentiary value, the resolution was in fact correct. They reflected the resolution for the purpose of evidence but relied upon the affidavits and the statements of tile applicant and confirmed the order passed by the learned Additional Judicial Commissioner whereby the applicant was declared a tout. In Maganbhai Nathsbhai v. Dinkarrao N. Desai AIR 1932 Bom 596, Mr. Justice Rrtngnekar held that a meeting convened by the Bar Association could not be treated as a specially convened meeting for the purpose of declaring the applicant to be a tout. The grounds which impressed the learned Judge in finding that the meeting was not specially convened were:

(1) that the circular issued by the Secretaries of the Association was not served upon all the members of the Association;

(2) that there were as many as 7 items which were to be considered by the meeting; and

(3) that when a second circular was issued by the Secretaries though it wag circulated amongst all the members except 3, the original circular was not annexed therewith and which contained the letter of an advocate, one Dahyabhai, which requested the President to take steps against the petitioner Magan Natha to be declared as a tout.

In the original circular this loiter was annexed but that circular was treated as Ineffective as it was only circularized amongst 15 out of 36 members. Though the second circular was served upon all the members except 3, this latter circular did not mention the name of Magan Natha as a person to be declared a tout, nor was the letter of the advocate Dahvabhai annexed or set out in the second circular. In these circumstances, the learned Judge declined to accept the meeting held in pursuance of the second circular as a specially convened meeting within the meaning of the explanation to Section 36 of the Act and set aside the order of the learned District Judge, Broach, where under the applicant there was a declared a tout.

7. In both these cases the resolution was not accepted as evidence of general repute because in the notice issued to the members of the Association, the name of the person against whom action was sought to be taken was not specified. The two decisions, therefore, would show that there is force in the contention of the petitioners. The language used in the explanation to Section 36 of the Act also shows that there is force in that contention. The words 'any person' used in the first part of the explanation have to be read in conjunction with the words 'the passing of a resolution in a meeting specially convened for this purpose' and it is when such a resolution la passed, declaring such a person to be or not to be a tout, in a meeting convened for that purpose then the resolution under the explanation can become evidence of general repute against 'such person.' The words 'such person' are, therefore, used in co-relation with the words 'any person' previously occurring in the explanation. Therefore, 'such person' must be a definite and named person against whom the members declare whether he is a tout or not. It seems fairly clear from the language of the explanation that it is necessary that such person must be named in the notice convening the meeting, otherwise, the meeting would not be one specially convened for the purpose of declaring whether the person against whom the member3 vote was a tout or not. Thus, the words 'any person', and 'such person' used in the explanation make it clear that the explanation envisages that the notice convening the meeting must set out the name or names of person or persons against whom action is sought to be taken. In view of the fact that the notice dated the 18th of June 1959, on the basis of which the meeting of the 25th of June 1959 was convened, did not contain the names of definite persons there is an infirmity in the resolution dated the 25th of June 1959 and due to that infirmity, that resolution cannot be treated as a resolution passed at a meeting specially convened within the meaning of the explanation to Section 36. That being so, that resolution cannot be accepted or acted upon as evidence of general repute apiarist the petitioners.

8. It was then argued on behalf of the petitioners that if the resolution dated the 25th of June 1959 was taken out of consideration, there would remain only I ho second resolution dated the 28th of August 1959 and the evidence of the President of the Association on which the order passed by the learned Sessions Judge can be based. Both Mr. Pathak and Mr. Patel contended that the second resolution dated the 28th of August also cannot be accepted as evidence of general repute on two grounds:

(1) that the second resolution was passed after the proceedings were initiated by the learned Sessions Judge, and

(2) that that resolution was passed at a meeting which cannot be said to be a meeting specially convened because the purpose of convening that meeting was not to declare whether the petitioners were touts or not but that its purpose was to remove technical detect or infirmity in the resolution previously passed on the 25th of June 1958.

Now, the notice dated the 21st; of August 1959 which notified that a special general meeting or the Association would be held on the 25th of August 1959 expressly stated that the meeting was to be held 'for the purpose of consideration and declaration of the below mentioned 80 persons as touts and moving the District and Sessions Judge, Ahmedabad or other competent authority for taking necessary action under Section 36 of die Legal Practitioners Act,' The names of 80 persons referred to in the notice are given at the foot of that notice. The notice then clearly states as to the purpose for which the meeting was to be held and it positively states that the purpose was the consideration and the declaration of the 80 persons mentioned therein as touts, and for moving the learned Sessions Judge to take necessary action under the Act Reliance, however, was placed upon the resolution dated the 25th of August 1959, where no doubt it was stated that certain questions having arisen and the Association having thought it necessary to consider certain technical defects, in the resolution passed on the 25th of June 1959, it authorized the Honorary Secretary of the Association to issue the notice dated the 21st of August 1959 mentioning the purpose. for which the meeting was to be called and also mentioning the names of the 80 persons to be declared as touts. It was contended by Mr. Pathak and Mr. Patel that these words in the resolution would show that the purpose was not the consideration of the 80 persons whether they were touts or not but the purpose of the meeting was to see that the technical infirmities in the previously passed resolution were removed. Botfly the notice dated the 21st of August 1959 and the resolution of the 25th of August 1959, however, state in clear terms that though it was felt by the Association that there might be some legal infirmity in the previously passed resolution, the purpose of the meeting of the 25th of August 1959, was to consider the question whether the 80 persons mentioned in the notice, itself were touts Or not. In view of the clear words both in the notice and also in the resolution that this was the purpose for which the special meeting was convened, it cannot be rightly contended that the purpose was not the one contemplated under Section 36 of the Act or that the purpose was merely to remove the technical defect, from the previously passed resolution.

9. So far as the contention, that the resolution dated the 25th of August 1959 cannot be regarded as one passed at a specially convened meeting as it was passed after the proceedings in these inquiries were initiated by the learned Sessions Judge is concerned, there is nothing in Section 36 and the explanation annexed thereto to indicate that a resolution passed at a specially convened meeting cannot become evidence of general repute against the petitioners, unless it was passed before the proceedings were initiated by the learned Sessions Judge or unless such resolution became the basis of such proceedings. I find nothing in Section 36 or the explanation to justify the contention that the passing of such a resolution is a condition precedent to proceedings against the petitioners being initiated by the learned Sessions Judge. There is also nothing either in the section or the explanation to justify the view that it is only that resolution which is passed before the proceedings are initiated that can be evidence of general repute against the petitioners. What the explanation to Section 36(1) does is to enact a special rule of evidence by making the resolution evidence of general repute which but for the explanation, would not be evidence under the Evidence Act. The explanation does not, however, state or require that such a resolution must be passed before the proceedings are initiated against a person to be declared a tout. The effect of the explanation is that if a resolution has been passed by the Association in accordance with the provisions of Section 36 and the explanation, irrespective of the fact whether it is passed either before or after the proceedings are commenced, it would be evidence of general repute against the person against whom such proceedings are initiated.

10. The resolution dated the 25th of August 1959 was passed at a specially convened meeting in pursuance of the notice dated the 21st of August 1959 in which there was a list of 80 persons against whom action was sought to be taken. Amongst the name, of these 80 persons were the names of these two petitioners at serial Nos. 3 and 11. In my view, the resolution of the 25th of August 1959 was validly passed at a meeting which was specially convened for the purpose of considering whether the eighty persons mentioned both in the notice as also in the resolution should be declared touts or not. In this view the resolution dated the 25th of August 1959 was and could be treated as evidence of general repute against both the petitioners. There is also nothing in Section 36 or the explanation to show that the learned Sessions Judge could, issue the show cause notice against the petitioners only if resolution of the Association war, previously passed or that he could not do so even if he is moved otherwise than by passing such a resolution, The evidence is clear that the President of the Bar Association had sent his report to the learned Sessions Judge under cover of his letter dated the 30th of June 1959. The learned Sessions Judge initiated the proceedings against the petitioners on the information contained in that report. Nothing can be validly said against the action taken by the learned Sessions Judge. For these reasons, the learned Sessions Judge was justified in taking into consideration the fact of the resolution dated the 25th of August 1959 having been passed by the Association as also the resolution itself as evidence of general repute against the petitioners.


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