Skip to content


In Re: S. Venkatachari, an Advocate of the High Court - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1932Mad131
AppellantIn Re: S. Venkatachari, an Advocate of the High Court
Cases ReferredSee Anandalwan v. The Judges of
Excerpt:
- - muthukrishna aiyar, to whose assistance i must acknowledge our great indebtedness, had not attempted to defend and that he would be better advised to turn his attention to the circumstances that seemed to tell heavily against himself. it appears to me clearly improper that, unless we are compelled to do so, we should make such a grave departure from the ordinary criminal procedure prescribed by law. and on the contrary the finding and procedure in such an inquiry as this may well obstruct the course of justice and shield the advocate from the penalty to which he is liable under the ordinary law of the land. he should be tried like any other person according to the ordinary law of the land; 28 for not waiting for the criminal conviction before taking disciplinary action is that the.....waller, j.1. the facts have been set out at length in the finding of the tribunal and it is not necessary for me to recapitulate them. briefly, the questions for decision are whether:(1) the two payments relied on by the respondent were made on the dates alleged; (2) the receipts produced by him in support of them were given to him by the complainant on those dates, and (3) his letters of june and november 1924, and the connected certificates of posting are genuine.2. that the burden of proof is on the complainant is clear. that he is a witness, whose evidence needs corroboration, is equally clear. parts of his story, so far as it relates to the last promissory note (ex. 22) are not credible and have been rightly rejected by the tribunal. it is impossible to believe that this note.....
Judgment:

Waller, J.

1. The facts have been set out at length in the finding of the tribunal and it is not necessary for me to recapitulate them. Briefly, the questions for decision are whether:

(1) The two payments relied on by the respondent were made on the dates alleged; (2) the receipts produced by him in support of them were given to him by the complainant on those dates, and (3) his letters of June and November 1924, and the connected certificates of posting are genuine.

2. That the burden of proof is on the complainant is clear. That he is a witness, whose evidence needs corroboration, is equally clear. Parts of his story, so far as it relates to the last promissory note (Ex. 22) are not credible and have been rightly rejected by the tribunal. It is impossible to believe that this note represented an advance for the proposed purchase by him of some ground from the Wesleyan Mission or that he lent the respondent money to buy stamps for that purpose. In these respects he has shown himself to have little regard for truth. That however is not by itself enough to conclude the controversy against him. The respondent seems to think that it is, and devoted the greater part of an argument extending over nearly five days to a series of attacks on his character and credibility in this connexion. It was pointed out to him repeatedly, but largely in vain, that he was attacking a position, which Mr. Muthukrishna Aiyar, to whose assistance I must acknowledge our great indebtedness, had not attempted to defend and that he would be better advised to turn his attention to the circumstances that seemed to tell heavily against himself. This advice he would follow for a short time, but he always returned in the end to the same argument: that the burden of proof was on the complainant who should not be believed. It being conceded that the complainant's evidence must be corroborated, the question is whether sufficient corroboration of it is forthcoming. He has to prove a series of negatives and the only corroboration of his denials that can be expected is to be looked for in the circumstances, the probabilities and the conduct of himself and the respondent at the relevant stages of their dealings with each other. Judged by this test, I think that ample corroboration is forthcoming. At every turn the respondent's story is beset with doubts and difficulties, which have not been satisfactorily solved. The majority of the tribunal do not deny their existence, but, have found in his favour in spite of them. Their finding is based largely on their acceptance of the evidence of one Srinivasa Aiyangar and on Exs. R. and U. I may say at once that, in my opinion, the evidence of Srinivasa Aiyangar should have been rejected and that Exs, R and U do not justify the construction placed on them. They do not necessarily give rise to an inference that, at the time at which they were written, little or nothing was due on Exs. A and B. (With these observations, his Lordship proceeded to consider evidence relating to the period at which the controversy began and concluding that the payments were not made, that the receipts were forgeries and that Exs. L and L-1 and the letters entered on them were forgeries, proceeded.) For misconduct of such gravity there can be only one penalty and that penalty must be inflicted, Respondent is removed from practice and his name is struck off the roll of advocates. It is true, as he has pointed out, that there has been very great delay in dealing with his case, but I see no reason to suppose that it has resulted in any evidence in his favour having disappeared. He will pay the costs of the proceedings before the tribunal and before this Court.

3. On the other points taken by the respondent, I concur in the opinion expressed by my brother Anantakrishna Ayyar. On the question raised by my brother Reilly, as to the inadvisability of substituting a disciplinary inquiry for a prosecution in a case of grave criminal misconduct, I see no necessity to express any opinion.

4. In the case before us, the only person who could order a criminal prosecution was Beasley, J., As he declined to do so, cadit quaestio.

Reilly, J.

5. (After stating the facts of the case his Lordship proceeded): At the beginning of our hearing the respondent contended that the tribunal had no power under the Act or the rules made under it to submit more than one report and that the report and finding of the majority of the tribunal alone had any validity and alone could be considered by us. Although we did not at the time come to any finding in regard to that contention, it was intimated to the respondent that on this occasion we should not consider the report of the third member of the tribunal against him. WE now agree that, as stated in the judgment of my brother Anantakrishna Ayyar, we are entitled to consider the reports and findings both of the majority and the minority of the tribunal; but in this case we have not considered the minority report. I may add that I agree also with the opinion of my brother Anantakrishna Ayyar in the judgment to be delivered by him on the objections raised by the respondent to the validity of the present proceedings against him.

6. It will be observed that the charges against the respondent are in effect charges of very serious criminal offences. They amount at least to charges that he has abetted the forgery of two receipts acknowledging the payment of money and has abetted fergery in respect of the two certificates of posting and in respect of all those documents that he has dishonestly used them as genuine knowing them to have been forged. If he is guilty of abetting the forgery of the two receipts Exs. K and K-1 or of using them with knowledge that they had been forged for either of those groups of offences alone he is liable under the Penal Code to transportation for life or to imprisonment for 20 years. And for those offences, which were nob connected with any professional work nor committed when he was acting in any professional capacity, we are in effect trying him in these proceedings. With great respect I do not think it would be right for ma to refrain from making it clear that this procedure appears to me to be both incorrect and objectionable. Misconduct which is the subject of inquiry under the Bar Councils Act may often involve the commission of criminal offences. The criminal offence involved may sometimes be of a petty nature, such as trespass or assault, or may be only incidental to the misconduct which is the serious matter alleged against the advocate concerned. In such cases it may often be quite annecessary to insist that the criminal charges should be disposed of before the advocate's conduct is investigated under the Bar Councils Act. Again the criminal offence alleged against the advocate may be such that he can be prosecuted for it only on the complaint of a private person, which has not been made, or may be one in respect of which it is obviously appropriate that the complaint should be made by a private person and no such complaint has bean made. In either of those cases there may be nothing improper or inappropriate in launching an inquiry into misconduct under the Bar Councils Act, although the criminal charge involved has not been disposed of.

7. But when, as in the present case, the advocate is accused of a grave criminal offence, for which no private complaint is required, to deal with him under the Bar Councils Act for the misconduct involved in the commission of that offence, before he has been tried for the offence, appears to me altogether improper. If he is guilty of the criminal offence, he should be punished for it as if he was an ordinary member of the public. If he is tried and convicted of it, then on the basis of that conviction he can he dealt with appropriately under the Bar Councils Act. But, if before he is subjected to any criminal prosecution the offence alleged against him is made the subject of proceedings for misconduct under the Bar Councils Act, that may have very serious consequences. To begin with, the advocate will be tried in effect for the criminal offence by a procedure unknown to the criminal law on the evidence of witnesses who have never appeared before the Judges who have to decide the case. It appears to me clearly improper that, unless we are compelled to do so, we should make such a grave departure from the ordinary criminal procedure prescribed by law. In many cases such a course might be gravely prejudicial to the advocate concerned.

8. It is true that the Judges, though they can blast an advocate's character by finding him guilty of the criminal offence in such a case, can impose no penalty such as is provided by the Penal Code; but that is not a sufficient reason for depriving him of the protection which the criminal law gives to an ordinary accused person. And on the contrary the finding and procedure in such an inquiry as this may well obstruct the course of justice and shield the advocate from the penalty to which he is liable under the ordinary law of the land. It may wall happen that an inquiry under the Bar Councils Act may result in an acquittal in a case where the ordinary course of investigation and prosecution would have ended in a conviction; and that acquittal would almost certainly save the advocate from further prosecution on the same charge. But a much more serious aspect of the matter is that, if a Bench of this Court, as the result of an inquiry under the Bar Councils Act, found an advocate guilty of the criminal offence alleged against him, it is extremely likely that he would escape the due punishment provided for his offence by the Penal Code. If he had been found guilty by a Bench of this Court, he could urge with great effect that by that he would be so seriously handicapped in any trial for the same offence before an ordinary criminal Court that it would be unjust to subject him to it. And, if he had elected to give evidence in the inquiry under the Bar Councils Act and to subject himself to cross-examination he could, and no doubt would, claim additional shelter from any subsequent criminal prosecution on the same charge. In this country no accused person can be subjected to cross-examination, and the fact that he had been so subjected and material had been so elicited for use against him would enable him to represent himself as a most gravely aggrieved person in any subsequent prosecution, even if there were no great substance in the grievance. In the present case Beasley, J., was induced to choose this inquiry into the respondent's conduct instead of a criminal prosecution in order that the respondent should have a chance of giving evidence and offering himself for cross-examination. It does not appear to me at all improbable that under the guise of anxiety to offer himself as a witness the respondent was manoeuvring to shelter himself from subsequent prosecution.

9. But, whether that was' his intention when he made his representation to Beasley, J., or not, I have no doubt that that objection would be taken to any subsequent prosecution. Beasley, J., has stated that he was influenced in the course he took by his opinion that it is desirable that accused persons should have an opportunity of giving evidence in their own behalf. For myself I may say that a long experience of criminal trials in Courts of every grade in this Presidency leaves me in doubt whether it would be advantageous in this country to allow accused persons the right to give evidence in their own behalf. But without discussing that question I may perhaps point out with the greatest respect that the law of this land neither gives an accused person that privilege nor subjects him to the danger of cross-examination, which must go with it. That being so, with the greatest respect, it does not appear to me proper to deflect the ordinary procedure on account of any such consideration. In my opinion, if an advocate is accused of criminal offences such as those alleged against the respondent, and the Judge to whose notice they come regards it as expedient in the interests of justice that an inquiry should be made into them as I understand Beasley, J., regarded it, the ordinary criminal procedure which would apply to any other man, should be followed; so far as the criminal offences are concerned the advocate should be allowed to gain no advantage nor be subjected to any disadvantage from proceedings to which a private person against whom such offences were alleged would not be liable; least of all should he be shielded from the ordinary penal consequences of what he may have done; he should be tried like any other person according to the ordinary law of the land; when that has been done, it will be time enough to deal with his professional position if necessary. I feel so strongly that we ought not to be trying the respondent for these criminal offences alleged against him, that even after all the delay there had been in this case I should not have consanted to take part in these proceedings at this stage but should have proposed that they be adjourned until the respondent had been tried by a criminal Court, if that had still been possible. But as it is alleged that the criminal offences with which he is accused were committed in respect of documents produced in Court in proceedings to which he was a party, Section 195, Criminal P. C, precludes any criminal Court from taking cognizance of those offences except on a complaint from the Court of Small Causes or from this Court, and Beasley, J., decided that no such complaint should be made. It happens therefore that the respondent is protected from any criminal prosecution in the matter. In the peculiar circumstances of this case he can be dealt with only in proceedings under the Bar Councils Act, and for that reason I join in these proceedings, though with great reluctance.

10. I may mention that in England it has long been the established rule that disciplinary action may be taken against attorneys and solicitors for conduct of a criminal character which shows them unfit to exercise their professional functions, even if they have not been tried on the criminal charge involved. In Stephens v. Hill [1842] 10 M. and W. 28 that rule was applied to an indictable offence. But in that case, where the charge against the attorney was of misconduct in a cause in which he was professionally engaged, Lord Abinger said that

if the attorney has been guilty of something indictable in itself, but not arising out of the cause (in which he is engaged professionally) the Court would not inquire into that with a view to striking him off the roll, but would leave the party aggrieved to his remedy by a criminal prosecution.... Where indeed the attorney is indicted for some matter not connected with his profession of an attorney, that also is a ground for striking him off the roll, although in that case it cannot be done until after conviction by a jury.

11. In In re Hill [1868]3 Q.B.543 where an attorney admitted an act of misappropriation committed, not when he was acting as attorney, but as clerk to other attorneys, Cockburn, C.J., said that

if there had been a conflict of evidence upon the affidavits, that might be a very sufficient reason why the Court should not interfere until the conviction had taken place.

12. In In re Chandi Charan Mitter [1920]47Cal.1115 the rule in England is I think correctly indicated, namely that, if an attorney is charged with a criminal offence not done in connexion with his professional work, then, if the act is indictable and is fairly denied, the Court will not proceed against him for misconduct until he has been convicted by a jury. That rule, if we followed it--and I can see no reason why we should not do so--would be sufficient to prevent disciplinary action being taken in a case such as this until the advocate had been convicted by a criminal Court. But in this country I think we should go further; and when the charge against an advocate is of a grave criminal offence, for the prosecution for which no private -complaint is necessary nor essentially appropriate, the charge should first be tried by a criminal Court, even if the offence is alleged to have been committed in connexion with the advocate's professional work. The reason given by Lord Abinger in Stephens v. Hill [1842]10 M.and W. 28 for not waiting for the criminal conviction before taking disciplinary action is that the party aggrieved might delay or fail to undertake prosecution. That reason does not apply in this country in a case where the Court can make a complaint under Section 476, Criminal P.C., nor in a cognizable case in which information is given to the police nor in any other serious case in which a Magistrate authorizes investigation by the police. In all those cases if a complaint is made by the Court or the police are set in motion, a criminal prosecution is likely to come to an end not less speedily, and in general more speedily, than an inquiry by a tribunal of the Bar Council followed by proceedings before a Bench of this Court. Apart therefore from the special reasons which I have mentioned, which may lead in this country to proceedings under the Bar Councils Act seriously handicapping an advocate in subsequent criminal prosecution on the same charge and so in effect precluding him from being subjected to prosecution, the reason of delay in prosecution or failure to prosecute, which may have justified disciplinary action in England on a criminal charge, on which the practitioner had not yet been tried by a criminal Court, is of practically no force in this country even when the criminal offence is alleged to have been committed in connexion with the practitioner's professional work.

13. In my opinion, when the essential charge against the advocate or legal practitioner concerned is that he has committed a grave criminal offence either in connexion with his professional work or entirely outside it, the only course just alike to him and to the public is that he should first be tried by a criminal Court like any other man, gaining no advantage and suffering no disadvantage from his professional position. That we should weigh the scales for him or against him in that matter would be worse than deplorable, and I see no adequate reason why we should adopt any course likely to have that effect. If the criminal trial ends in a conviction, then it will be for this Court to consider under the procedure prescribed by the appropriate Act what disciplinary action should be taken. Even if the practitioner is acquitted in the criminal Court it may be necessary in some cases to take disciplinary action against him either because he has been acquitted on a technical point or because the conduct proved against him, though not criminally punishable, merits such action. But the question of criminal guilt will be tried where it should be in a criminal Court. When the criminal offence alleged is trivial or only incidental to serious misconduct of another nature or it is possible or appropriate that the practitioner should be tried for the criminal offence only on the complaint of a private person, then the disciplinary proceedings need not be delayed because no criminal prosecution has been undertaken, though if a criminal prosecution is in progress or imminent, it may often be desirable even in such cases that the disciplinary proceedings should be postponed until the prosecution has come to an end.

14. I am glad to find that my view that, which the essence of the charge against the practitioner is that he has committed a grave criminal offence, even though its commission was in connexion with his professional work, he should be tried by a criminal Court before disciplinary action is taken against him has been adopted by three Benches of the Calcutta High Court, namely, in In re Chandi Charan Mitter [1920] 47Cal.1115, In the matter of Rajendra Kumar Dutta A.I.R.1926 Cal.502 and In the matter of Satis Chandra Singha : AIR1927Cal536 , though, if I may say so with respect, the reason given in the first of those cases for requiring a criminal prosecution to be undertaken does not appear to me to be the only one. In the present case, as I have mentioned, it is not alleged that the criminal offences with which the respondent is charged wore committed in any connection with his professional work.

15. On the facts of this ease I agree with the finding of my brother, Waller, J. (His Lordship considered the evidence in detail and proceeded) I regret that I have found it necessary to criticize the report of the majority of the tribunal at such length. It is our duty to take that report into careful consideration and if we differ from it, to state our reasons. The hearing before the tribunal was spread over 7 months; the evidence was recorded at intervals of 17 occasions and the arguments were hoard on six occasions spread Over 5 1/2 weeks. No doubt the members of the tribunal find it difficult to hear such a case continuously. But it appears to me probable that many of the defects to be found in the report of the majority are due to this method of hearing. In my opinion however they were engaged on a task which was not properly theirs. The Bar Council has no machinery to investigate nor have its members the time to hear a long criminal case. If this case had been investigated and prosecuted in the ordinary course, it would have been over years ago, its hearing would have occupied far less time, and the facts would have been more completely presented. Both the members of the tribunal and Mr. Muthukrishna Ayyar, whom they appointed to conduct the case were at serious disadvantage in handling it.

16. I agree that the respondent must be found guilty on all parts of the charge framed against him and that he must be removed from practice and ordered to pay the costs of these proceedings and of the proceedings before the tribunal.

Anantakrishna Ayyar, J.

17. In this case the tribunal of the Bar Council appointed by the Chief Justice consisted of three members; and after hearing the allegations against the advocate and considering the evidence, two members of the tribunal were of one opinion and the third of a different opinion. The question was raised before us whether the High Court is entitled to consider the findings recorded by the dissentient member, or whether the High Court's consideration should be confined to examining the correctness or otherwise of the findings arrived at by the majority. Our attention was drawn to Rules 3, 4 and 9 of the rules framed, by the High Court and to the relevant sections of the Bar Councils Act. When a statutory tribunal is invested with jurisdiction over a particular matter, the general rule is that the opinion of the majority should be taken to be the opinion of the body with reference to matters properly within its jurisdiction. It was argued that the High Court should consider only the opinion of the majority of the Bar Council tribunal, and should ignore the findings and reasonings of the minority.

18. In cases where a statutory body is charged with the duty of giving advice to a final executive authority, the policy would seem to be to require the advice to be put in a definite form, and not to be accompanied with the dissenting opinion if any, of the minority. For example, Rule 45(3) of the Madras Legislative Council Electoral Rules provides that

the report shall be in writing and shall be signed by all the commissioners. The commissioners are forthwith to forward their report to the Governor, who on receipt thereof, shall issue orders in accordance with the report and the orders of the Governor shall be final.

19. Under Rule 46:

If either in their report or upon any other matter there is a difference of opinion among the Commissioners the opinion of the majority shall prevail, and their report shall be expressed in the terms of the views of the majority,

20. When however the report or findings have to be submitted by one judicial tribunal to another judicial tribunal, which latter has got jurisdiction and the duty to examine the correctness or otherwise of the report or findings submitted by the former, it would be advisable to have the opinions of all the members of the tribunal which inquired into the matter in the first instance, so that the final judicial authority may have the benefit of the opinions, reasonings and findings of all the members of the tribunal on the relevant questions when the decision of the case in the last resort rests with the higher judicial tribunal. In pursuance of such policy and to make matters clear, similar provisions have been made by the legislature, for example, in Section 265, Criminal P.C.:

when a criminal ease is tried by a Bench of magistrates, if the Bench differ in opinion any dissentient member may write a separate judgment.

21. We find that some of the High Courts have framed rules under the Bar Councils Act on this point. For example, Rules 13 and 14 framed by the High Court of Calcutta are as follows:

Rule 13. The finding of the majority of the tribunal shall be the finding of the tribunal in case of difference of opinion, provided that a dissentient member of the tribunal may record his dissent by a note in writing.

Rule 14. The finding of the tribunal shall be in writing and the same shall be forwarded with such a note of dissent, if any, to the High Court in the manner provided by Section 12(2).

22. Referring to the rules framed by the Rangoon High Court, Rule 10 runs as follows:

In the case of an inquiry by the tribunal the finding shall be signed by each member thereof, and the members may if not unanimous in opinion, record separate findings.

23. Rule 7 framed by the Allahabad High Court states that:

the tribunal shall then proceed to consider and record its findings, provided that each member of the tribunal shall if he so desires, be entitled to record a separate finding.

24. As far as we have been able to ascertain, the Bombay High Court has not framed any specific rule on the point now before us. Rule 2 provides:

The tribunal shall then consider its findings and remit it with a copy of its reasons through the Bar Council to the High Court.

25. Rule 6 is to the following effect:

in all matters not provided for by these rules, the tribunal will follow the principles of natural justice.

26. It may be that as a matter of practice members of the tribunals of the Bar Council may or may not think it advisable to record dissentient findings, but that is a matter entirely for the tribunal of the Bar Council. So far as the High Court is concerned, with which alone rests the final decision on the merits of the case prima facia the reasoning and the opinion judicially formed by the minority of the Bar Council tribunal would also be useful in arriving at the final result.

27. Under Section 11 of the Act, the tribunal may consist of an even number of members (four); and if in such cases the members are equally divided in opinion there would be difficulty in saying which of the findings should be taken to be the findings of the Bar Council Tribunal for the purpose of the Act.

28. To make matters clear, it seems to us desirable that specific rules should be framed on the point.

29. Pending further consideration of the point, it was intimated to counsel on the first day of hearing that the findings submitted by the minority (which happens in this particular case to be against the advocate) would not be taken into consideration. After considering the point, we are of opinion that the High Court is also entitled to take into consideration the findings submitted by the minority, though we may state that in the present case we have come to the conclusion on the merits of the case ourselves independently of the opinion of the minority of the Bar Council Tribunal.

30. Again, it was argued that Under Section 10, Letters Patent, the full Court of 14 Judges should deal with this matter, and that a Bench of three Judges has no jurisdiction to hear this case. We are unable to agree with this contention. Section 10, Letters Patent, empowers the High Court to remove or suspend from practice, on reasonable cause, any advocate of the High Court. A rule has been framed that;

Every inquiry Under Clause (10), Letters Patent shall ordinarily be heard and determined by a Bench of three Judges; -See Rule 8, p. 7, Appellate Side Rules.

31. On Beasley, J.'s report to the then Chief Justice, the Chief Justice referred the matter to three Judges to whom was assigned the duty of dealing with such cases, and in accordance with their opinion the late Chief Justice directed the matter to be referred to the Bar Council for inquiry, and appointed three members of the Bar Council to form the tribunal for inquiring into the matter. After the findings of the Bar Council were received, the present Chief Justice appointed the present Bench of three Judges for hearing this case. It' seems to us that in the circumstances this Bench is entitled to hear this matter. WE may also state that when a similar objection was raised before the High Court in Anandalwan v. The Judges of the High Court of Judicature at Madras (6) the Bench of three learned Judges, disposed of the objection as follows:

Objection was taken to the competency of this Inquiry: the first objection being that this Bench of three Judges is inadequate, and that the mutter should be dealt with by the Full High Court Under Section 10, Letters Patent. This entirely ignores the rules framed under that clause which delegate the duty to a Bench of three Judges, and this has been the invariable practice in this Court.

32. In the appeal to the Privy Council, Rule 8, under which

every inquiry Under Section 10, Letters Patent, shall ordinarily be heard and determined by a Bench of three Judges

was referred to by the Privy Council, and the Privy Council observed that

several objections to the procedure were taken by the appellant in the Courts below, these were not maintained before their Lordships'; See Anandalwan v. The Judges of the High Court of Judicature at Madras (6).

33. We accordingly overruled the objection.

34. It was also argued that though Beasley, J., (as he then was) in his order, dated 7th May 1926, resolved

to make a report to the High Court in its disciplinary jurisdiction, and asked that an inquiry may be made to be directed after an explanation has been sought for from the advocate in question into the truth of these allegations because I think that such a charge as this cannot be left where it is,

yet no explanation was called for from the advocate, and that consequently the whole proceedings should be declared illegal. In this connexion the following passage from the report of the Bar Council Tribunal may be quoted:

This reference arises out of C.S. Nos. 8, 9 and 10 of 1926 disposed of by the Honourable Beasley, J., as he then was, on 7th May 1926. The papers, after some delay, with the judgment in the case, were forwarded by his Lordship Beasley, J., to the Honourable the Chief Justice for such action as he might think proper to take on 15th March 1927. The delay in taking such action by his Lordship was due to the fact that he at first took the view that the conduct of the advocate complained of was not in the capacity of an advocate but as alitigant; and his Lordship decided that it was a matter to be dealt with purely criminally. Later on, however his Lordship changed his mind on a representation made on behalf of the advocate that it could be dealt with by the High Court on its disciplinary side also.

35. The advocate and his legal advisers had plenty of opportunity all along in this matter to put in any'explanation if thought fit and it was at the special request of the advocate that the matter was dealt with by the High Court on its disciplinary jurisdiction instead of the matter being dealt with by the criminal Court. The advocate appeared before the tribunal of the Bar Council and filed a written statement on 1st November 1929. The allegations contained in that written statement were duly inquired into by the tribunal. In the circumstances we do not think that there is any force in this contention either.

36. Another interesting question of great importance has been discussed in the judgment of Reilly, J., (the question itself was not fully argued in Court in this case) about the propriety of a criminal prosecution preceding an inquiry under the Bar Councils Act in cases where the facts would suggest the commission of a very serious criminal offence punishable under the Penal Code. I do not propose in the circumstances to discuss that question at present, because Beasley, J., who tried the civil suits, though at first inclined to send the matter to the criminal Court, resolved finally not to do so in the present case, being influenced by the request made on behalf of the advocate that the inquiry should be under the Bar Councils Act. Having regard to the provisions of Section 195, Criminal P.C, and having regard to the special circumstances of this case, it seems to me that it is not desirable or proper to drop or adjourn the present proceedings, and that we should in the rather peculiar circumstances dispose of the matter before us on the merits.

37. On the merits, the question is whether the charges against the respondent have been proved. The majority of the Bar Council Tribunal

felt the greatest difficulty in coming to a conclusion on the questions involved in this case.

38. They further observed as follows:

There is no doubt this initial suspicion attaches to this (respondent's) story.... This suspiction receives further strength from the somewhat doubtful account of Venkatachari's as to how he found the necessary funds for making these payments.

39. Later on:

Perhaps it may be difficult to accept Venkatachari's story in its entirety as to the source from which he found the money for making the payments.

40. As regards the Postal Certificates Exs. L and L-1, the remark

their genuineness is not free from suspicion. Their appearance is no doubt against them. The alterations are patent on their face.

41. The majority expressly state that they

felt the greatest difficulty in coming to a conclusion on the questions involved in this case.

42. The High Court would naturally be inclined to attach great weight to the opinion of the tribunal of the Bar Council in cases inquired into by that tribunal, more especially when questions of appreciation of oral evidence of witnesses who were examined by the tribunal arise. But in the present case, while agreeing with the tribunal that no 'credence could be attached to the complainant's oral evidence unless the same be corroborated'(as a mere reading of the complainant's deposition would show) I think that the circumstantial evidence in the case against the respondent is too strong to be got over. (Here his Lordship discussed the evidence and proceeded as follows:) When these serious charges are held to be proved, I think we are bound to remove the respondent from practice and to direct the removal of his name from the list of advocates, I also agree in the order as to costs proposed by my learned brother, Waller, J.

43. The order of the Court is that the respondent be removed from practice and that his name be struck off the roll of advocates and that he do pay the costs of the proceedings before the tribunal and here. It is contended by him that his case should have been disposed of before the Bar Councils Act came into force and that, as there was no specific provision for the payment of costs before that Act came into force, we should not direct him to pay the costs. We are unable to agree to this proposition. The inquiry did take place under the Act and we are not prepared to concede that there was no jurisdiction to direct the payment of costs before it was passed. We fix a fee of Rs. 750 for Mr. Muthukrishna Aiyar's appearance before the tribunal and here.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //