1. This is a reference under Section 14, Legal Practitioners' Act, made by the District Judge of Pabna and Bogra in connection with a proceeding against a Muktear, Babu Sachindra Nath Maulik, under Sections 13 (b) and 14, Legal Practitioners' Act. The charge was that the muktear practising in the Criminal Courts, Pabna, having been engaged by the accused in the case of Emperor v. Hurmaj Sander and Afaz Talukdar and others under Section 395, I.P.C., has been guilty of fraudulent and grossly improper conduct in the discharge of his professional duty. The charge was worded as follows:
(1) That on or about 3rd December 1935, when the accused Harmuj was produced before the Deputy Magistrate of the Sadar Sub-Division for record of his confession he made gestures to him for inducing him not to make confession as the result of which Harmuj declined to make any-voluntary statement on that date; (2) That in his attempt to prevent the aforesaid accused from making a voluntary statement he frequently interviewed the accused in jail between 3rd December 1935, and 23rd January 1926,' for the purpose of tampering with the evidence and got the said accused to sign a petition for bail before the Sessions Judge without informing him of its contents and himself swore a false affidavit which was filed with the aforesaid petition in the Court of the Sessions Judge on 7th January 1936 and (3) That he sent a telegram on 20th January 1936 showing that he was persisting in his attempt to tamper with evidence by deterring the accused from making his confession.
2. In the opinion of the learned Judge, the evidence as regards the last two counts is not convincing and therefore he does not make a reference on those charges. But as regards the first count, he says that if the District Magistrate before whom the misconduct was alleged was the proper authority to initiate the enquiry, then in his opinion the muktear was guilty of professional misconduct. It is not disputed that the proceedings of the District Magistrate were in order, and therefore we have to consider the first charge under which the learned Judge is of opinion that he was guilty of professional misconduct. The other charges, we think on the recommendation of the learned Judge and also on a consideration of the proceedings, have not been clearly made out. As regards the first charge also, we are of this opinion. The finding of the Magistrate is that the Muktear made on the 3rd December threatening and intimidating gestures towards Harmuj Sandar for the purpose of dissuading him from making a confession. He finds that the statement of Harmuj as to the gestures are corroborated by the evidence of the witnesses. The statement is that
while deposing in the Court the Muktear looked daggers at him in the Deputy Magistrate's Courtroom and when he came to the verandah the Muktear came and shook his head towards him and by running his hands across his throat made a gesture about cutting Harmuj's throat. This frightened him and he did not confess on that date.
3. In support of this statement we have the evidence of the Magistrate's orderly, the evidence of Sudhir Kumar Bhattacharjee, a constable and watcher of the Criminal Investigation Department, who was at the Court at the time, the evidence of the Inspector of Police and also the evidence of the Assistant Sub-Inspector as well as the statement of the accused Harmuj himself. With reference to this evidence, it must be remembered that this occurrence took place on 3rd December 1935, and these proceedings were not drawn up until 13th March 1937. The report of the Inspector who made an enquiry into the matter was forwarded to the Magistrate on 31st July 1936. Consequently, these witnesses are giving evidence about fifteen months after the occurrence. Further all the witnesses are Police witnesses with the exception of the orderly of the Magistrate. We find that this occurrence was not brought to the notice of the Magistrate at the time and apparently it was not brought to his notice before Harmuj made the confession on 23rd January 1936, although Harmuj must have been produced before him several times. It is not also mentioned in the petition which Harmuj made to the Magistrate on 20th January. There are also discrepancies in the evidence. Sudhir, the orderly, says that these gestures were made when he was bringing Harmuj back to the Court. He had been taken out to the verandah during the period which was given to the accused by the Magistrate for consideration before recording his confession. He was taken out to the verandah by the orderly who says that when he was bringing back the accused into the Court room these gestures were made. Harmuj himself says op. the other hand that the gestures were made as he came out into the verandah. Sudhir Bhattacharjee says that he informed the Assistant Sub-Inspector at the time and the Assistant Sub-Inspector says that he was so informed but that he did not then inform the Court Sub-Inspector or the Court Inspector ah though they were sitting with him in the same room.
4. Then, in his statement Harmuj says that he was threatened by no less than 6 men at the same time in the verandah, but the orderly refers to threatening only by the Muktear. In the circumstances, we think that this evidence is not sufficient to sustain the charge against the Muktear. Moreover, it has been laid down that in such cases where the allegations amount to a criminal charge the proper procedure is to prosecute the accused criminally in the first instance before bringing proceedings under the Legal Practitioners' Act. Otherwise the accused is likely to be prejudiced inasmuch as these are summary proceedings in the nature of a summons trial. In this case the proper procedure would have been to prosecute the Muktear criminally under Section 506, I.P.C. The long delay in bringing these proceedings is a serious objection to the proceedings. The charge was not brought to the notice of the accused until a very long time after the occurrence and the witnesses must have forgotten what took place. Moreover, the delay throws suspicion on the whole proceedings inasmuch as this charge was not brought at once and the witnesses examined immediately after the occurrence. It is possible that if the proceedings have been initiated immediately after the occurrence a charge might have been established that the accused acted unprofessionally in communicating with his client without the permission of the Magistrate, but that charge has not been included in the present proceedings and the evidence at this stage is not at all sufficient to warrant a finding that the accused made the gestures alleged or that in doing so he acted unprofessionally. We think accordingly that this reference cannot be accepted and that the Muktear cannot be found guilty of professional misconduct. We are told that he has been under suspension since September last and this suspension should be withdrawn immediately.
5. I agree.