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Nallasivan Pillai Vs. N. Ramalingam Pillai - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported inAIR1918Mad398; 41Ind.Cas.305; (1917)32MLJ402
AppellantNallasivan Pillai
RespondentN. Ramalingam Pillai
Cases ReferredSee The Queen v. Pearce
Excerpt:
- - 2. section 13 relates to the power of the high court to suspend a pleader or mukhtear and has clearly no application. i need not say that this court will interfere under section 115, civil procedure code or under section 107 of the government of india act, 1915, with an order passed under section 476 of the criminal procedure code by a lower court only in very exceptional cases. this seems clearly equitable see kotha subba chetty v......have been made to the district court and could not be taken congnizance of or enquired into by the district judge.3. the district judge, however, overlooked this point went elaborately into the matter, examined the petitioner nallasivan pillai on solemn affirmation as petitioner's witness, found his allegations against the vakil to be wholly false and dismissed the petition on the 2nd september 1916. it goes without saying that the learned district judge quite honestly believed himself to have jurisdiction to make that enquiry, neither the petitioner, nallasivan pillai, nor the second grade pleader, ramalingam pillai, (who was represented in the enquiry by another vakil aruinugam pillai) having evidently brought to the notice of the district judge that the district judge had no.....
Judgment:

Sadasiva Aiyar, J.

1. The petitioner Nallasivan Pillai presented an application under Section 13 of the Legal Practitioners Act XVIII of 1879 against a Second Grade Pleader, Ramalingam Pillai, to the District Court of Tinnevelly on the ground that the said Vakil whom he had engaged to conduct an execution was guilty of improper conduct in the discharge of his professional duty in the matter of that execution.

2. Section 13 relates to the power of the High Court to suspend a pleader or Mukhtear and has clearly no application. Taking it that Section 13 is a mistake for Section 14 even then a charge of unprofessional conduct in the discharge of professional duty made against a pleader can be enquired into only by the presiding officer of the. Court in which the pleader practises. The second Grade pleader, Ramalingam Pillai, having no right to practice in the District Court and the execution matter in which the alleged misconduct took place relating to a decree of the Tinnevelly Sub Court on its Small Cause side, the charge should not have been made to the District Court and could not be taken congnizance of or enquired into by the District Judge.

3. The District Judge, however, overlooked this point went elaborately into the matter, examined the petitioner Nallasivan Pillai on solemn affirmation as petitioner's witness, found his allegations against the Vakil to be wholly false and dismissed the petition on the 2nd September 1916. It goes without saying that the learned District Judge quite honestly believed himself to have jurisdiction to make that enquiry, neither the petitioner, Nallasivan Pillai, nor the second Grade Pleader, Ramalingam Pillai, (who was represented in the enquiry by another Vakil Aruinugam Pillai) having evidently brought to the notice of the District Judge that the District Judge had no jurisdiction to make such enquiry.

4. On that same date, 2nd September 1916, the learned District Judge sent the petitioner, Nallasivan Pillai, under Section 476, Criminal Procedure Code to the nearest 1st Class Magistrate in order that he might be tried for offence under Section 193, Indian Penal Code in that the petitioner made false statements as his own witness in the enquiry held under the Legal Practitioners Act in the matter of a receipt Ex. I and in two or three other matters.

5. Against this order under Section 476, Criminal Procedure Code, the present Civil Revision Petition has been filed and the petition contains 6 grounds. The last two of the six grounds relate to the merits. I need not say that this Court will interfere under Section 115, Civil Procedure Code or under Section 107 of the Government of India Act, 1915, with an order passed under Section 476 of the Criminal Procedure Code by a Lower Court only in very exceptional cases. The other four grounds of the Revision Petition raised the two following points : (1) the enquiry under the Legal Practitioners Act by the District Judge is not a judicial proceeding, (2) it was not, in this matter, a court within the meaning of Section 476, Criminal Procedure Code. It will be seen that neither of these points expressly raises the contention that the District Judge had no jurisdiction under the Legal Practitioners Act to conduct the enquiry which he did. An enquiry under the Legal Practitioners Act by a court is, in my opinion, a judicial proceeding. See Kotha Subba Chetty v. Queen I.L.R. (1883) M. 252. The expression 'judicial proceeding' is not directly denned in the Indian Penal Code. Explanation 2 to Section 193, Indian Penal Code, however, makes it clear that a 'proceeding before a court of justice' acting in the administration of justice is a judicial proceeding, The Criminal Procedure Code, Section 4 Clause (m) defines 'judicial proceeding' as including any proceeding in the course of which evidence may be legally taken on 'oath' (which includes 'solemn affirmation'). I cannot therefore accept the contention that a District Judge taking evidence in a proceeding of which he is entitled to take cognizance under the Legal Practitioners Act is not 'a court' or that the enquiry is not a 'judicial proceeding.'

6. I am of opinion therefore that the grounds mentioned in the memorandum of Civil Revision Petition have not been established as valid. But Mr. Deva Doss argued that as the District Judge had no jurisdiction to entertain the petition or to enquire into it, the whole enquiry was ultra vires, and, for false statements made in such an enquiry by the petitioner as a witness, he cannot be punished under Section 193, Indian Penal Code as the petitioner was not legally bound (see Section 191, Indian Penal Code) to state the truth before the District Judge in that enquiry and as the proceeding before the District Judge was not a 'judicial proceeding' within the first paragraph of Section 193. This latter contention, however, cannot wholly absolve the petitioner from punishment as the giving of false evidence, though it was not done in a judicial proceeding is also punishable under the second paragraph of Section 193, Indian Penal Code. However, proceedings under Section 476, Criminal Procedure Code can be taken only where the offence is committed or is brought to the notice of the Court in a 'judicial proceeding.'

7. It is, no doubt, a very startling proposition that though every body is morally bound to state the truth, he may not in certain cases be legally bound to state the truth even after an oath or solemn affirmation has been administered to him by a court which honestly believes itself to have jurisdiction to conduct certain proceedings in which that man is a witness and when the person giving evidence (or for whom the evidence is given, if he is not the person giving evidence) has not objected to the jurisdiction of the Court to take the evidence.

8. It has been held that where a court had no power to put a particular person upon oath, (say an accused person) he was not legally bound by the oath and therefore cannot be punished for giving false evidence. This seems clearly equitable see Kotha Subba Chetty v. Queen I.L.R. (1883) M. 252, and Queen Empress v. Subbayya I.L.R. (1889) M. 451.

9. It was held in Queen Empress v. Bharma I.L.R. (1886) B. 702, that where the court had no power to enter upon an enquiry at all, the proceedings in that enquiry are not judicial proceedings and a witness in that enquiry, though solemnly affirmed, was not legally bound to state the truth. The same view was taken in 1891 by Muthusami Aiyar, J. in the case reported in 1 weir 151. See also Queen Empress v. Hanumantha Reddi I.L.R. (1899) M. 223, and Emperor v. Abdul Rahiman I.L.R. (1909) A. 30. I might be permitted to express my regret that the highly technical view that a person is not legally bound to state the truth before a court of justice which has bound, him by an oath or solemn affirmation when that court of justice had no jurisdiction to enter upon the enquiry though it honestly believed itself to have such power and though no objection had been taken to its jurisdiction has been adopted by the Indian High Courts following the English Cases on this point. See The Queen v. Pearce (1833) 32 L.J. 75 where Cockburn, C.J., says when quashing the conviction for perjury 'I regret that a man who has been convicted upon the merits, should escape from punishment upon a technical point of this sort, but we administer the law according to the established rules.' I might be further permitted to express a hope that an explanation may be added to Sections 191 and 193, Indian Penal Code to the effect that a person is legally bound in a court of justice as witness in any enquiry to state the truth and that such an enquiry is one in a judicial proceeding even if the court had no jurisdiction to enter upon the enquiry, provided (1) that the enquiry was not into an offence alleged to have been committed by the witness, (2) that the Court honestly believed that it had jurisdiction and (3) that an objection (to the inquiry or to the examination of the witness therein) on the ground of jurisdiction had not been brought to the notice of the court before the evidence was taken.

10. In the result, I feel myself bound to set aside the proceedings under Section 476, Criminal Procedure Code owing to the District Judge's want of jurisdiction to enter upon the enquiry under the Legal Practitioners Act.


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