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In Re: Shyamapada Bhattacharji and anr. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1932Cal370,137Ind.Cas.434
AppellantIn Re: Shyamapada Bhattacharji and anr.
Cases ReferredMuhammad Inayet Ali v. Fazal
- .....accordingly is no authority for the decision of the present objection.4. in this case the learned district judge took action and after taking action framed charges a copy of which was served upon each pleader he heard the matter and decided to take action against the pleaders and recommended the case to this court in the following words:however the boycott resolution was clearly improper and the proposer and seconder of it guilty of misconduct. accordingly i submit the matter to the hon'ble high court for orders.5. the learned district judge, it seems to us, has acted quite in accordance with the law and has, in terms of section 14, recorded his finding and the ground thereof and submitted his report to this court for proper orders.6. it may he noted that in the charge served upon the.....

Suhrawardy, J.

1. A preliminary objection has been taken to the hearing of this Reference on the ground that the learned District Judge of Murshilabad has not made any definite recommendation as to the mode of punishment to be inflicted upon the pleaders. It is argued that the Reference is not in order and that therefore it should be returned to the learned Judge as we are not competent to hear it at this stage. The argument is based upon the reading of Section 14, Legal Practitioners Act, and it is to the effect that the learned Judge in making the Reference should have indicated the nature of the sentence that would be imposed upon the pleaders in case they are found guilty of the charge made against them. We do not think that this objection ought to prevail. Section 14 of the Act has provided the procedure to be followed in the case of a reference by a Court to the High Court for its orders under that Act.

2. Clause 1 of that section says that if any pleader or muktear is charged with any misconduct, the presiding officer shall send him a copy of the charge and also a notice to him that on a fixed date such, charge will be taken into consideration. Then, according to Clause (3), on the date fixed, or on a subsequent date to which the inquiry may be adjourned the presiding officer shall receive and record all the evidence properly produced in support of the charge or by the defending pleader or muktear and shall proceed to adjudicate on the charge. If he finds, as Clause (4) says, that the charge is established and considers that the pleader or muktear should be suspended or dismissed in consequence, he shall record his finding and the ground thereof and shall return the same to the High Court. The section does not anywhere say that the presiding officer must pass a sentence upon the legal practitioner before he recommends the case to the High Court for orders. Infliction of punishment on the legal practitioner is within the exclusive jurisdiction of the High Court. By the words:

it such officer finds the charge established and considers that the pleader or muktear should be suspended or dismissed

as used in Clause 4 of the section, is meant that if the presiding officer is of opinion that such person should be punished under the Legal Practitioners Act and the punishment should be in the form of suspension or dismissal. I do not think that it is necessary for the recommending officer to suggest as to what punishment should be awarded; and it is apparent from the last sentence of clause 4:

The High Court may acquit, suspend or dismiss such pleader

that the question as to the form of punishment is left entirely to the High Court. This interpretation finds support from the last paragraph of Section 14 which says that if a subordinate Court makes a recommendation to the High Court under that section, it must do so through the superior Court and that the report of that superior Court should be accompanied by an opinion of such Court.

3. We have been referred to a decision of this Court [In re Fazlar Rahman Muktear [1911] 12 Cr. L.J. 40] in which the reference was found to be defective and was returned to the referring officer for proper amendment of the report. There the report was originally made by the District Magistrate through the Sessions Judge who sent up the papers to the High Court without expressing any opinion about the charge. That Reference was under Clause (c) of the penultimate paragraph of Section 14. It was, according to the last portion of that paragraph, necessary that the report of the Sessions Judge should have been accompanied by his opinion for the consideration of this Court. Then it appears from the judgment that no charge was framed against the accused muktear which was clearly wrong under the provisions of Clause 4, Section 14. That case accordingly is no authority for the decision of the present objection.

4. In this case the learned District Judge took action and after taking action framed charges a copy of which was served upon each pleader He heard the matter and decided to take action against the pleaders and recommended the case to this Court in the following words:

However the boycott resolution was clearly improper and the proposer and seconder of it guilty of misconduct. Accordingly I submit the matter to the Hon'ble High Court for orders.

5. The learned District Judge, it seems to us, has acted quite in accordance with the law and has, in terms of Section 14, recorded his finding and the ground thereof and submitted his report to this Court for proper orders.

6. It may he noted that in the charge served upon the pleaders, they were asked to show cause why they should not be dismissed.

7. In the result the objection is overruled.

Graham, J.

8. I agree. In my judgment the report of the learned District Judge complies with the requirements of Section 14, Legal Practitioners Act. The argument advanced on behalf of the opposite parties is based upon the language of the last paragraph of that section and para. 4 thereof with special reference to the use of the words 'finding' and 'opinion' which occur in para. 4 and the last paragraph of the section respectively. What appears to be required by the section is that a Judge, a Magistrate, or a revenue authority, as the case may be, should submit a report if he considers that the charge has been substantiated and that the pleader or muktear, as the case may be, should be either suspended or dismissed. The charges as framed in this case called upon the pleaders to show cause why they should not he dismissed, that being the extreme punishment which could be imposed. The learned District Judge after stating the facts has found that the pleaders have been guilty of. misconduct; and it is clear from his report that in his opinion they are deserving either of dismissal or suspension. If he had not so found, no reference would have been necessary, as is clear from para. 4 of the section. There is nothing in the section which imposes upon a Court making a report the duty of deciding what punishment should he imposed, the matter of punishment being left to the discretion of the High Court to whom the report is submitted. Even if we were to hold that there has been a technical omission to comply with the terms of the section, since the ultimate decision of the matter rests with us, it would merely delay matters and involve waste of time if the case were sent back to the Court below in order that it might state its opinion as to the quantum of punishment which would be appropriate.

(The reference was then heard on the merits and judgments were delivered as follows .)

Graham, J.

9. This is a reference from the District Judge of Murshidabad under Section 14, Legal Practitioners Act. The facts which have led up to it are not disputed and are shortly these:

10. On 9th March 1911 a resolution was passed by the Bar Association of Berhampur to the effect that no member of that Association, except the Government Pleader, should accept a brief in a criminal case against any other member. In 1913 a pleader named Nagendra Kumar Bhattacharji joined the Bar Association. From the materials before us it does not appear that any effect was given to the resolution until about 19 years later under the following circumstances:

11. On 20th April 1930 an Inspector of the Criminal Investigation Department brought a criminal case against certain persons including Babu Manindra Chandra Dubey, a pleader and member of the Bar Association. On 21st June 1930 the District Magistrate of Murshidabad engaged Babu Nagondra Kumar Bhattacharya to appear for the Crown in that case. Thereupon the pleader wrote to the Secretary of the Bar Association tendering his resignation as a member, if his action in accepting a brief against a fellow member disentitled him to retain his membership. He was informed in reply that a conditional resignation was not recognized by the rules of the association, but that a withdrawal was. and that his letter was being treated as a withdrawal from membership. Thereafter Babu Nagendra Nath Bhattacharya appeared. for the Crown and prosecuted Babu Manindra Nath Dubey. An application was, it appears, made to the District Judge to restrain Babu Nagendra Nath Bhattacharya from appearing on the ground that he had previously been instructed by the defence, but the allegation was found by the District Judge to be groundless.

12. On 30th July 1930 a meeting of the Berhampur Bar Association was held at which Mr. Kali Krishna Banerji, advocate and President of the Association presided when the following resolution was proposed and seconded by pleaders Babu Shyama Pada Bhattacharya and Babu Sasanka Sekhar Sanyal respectively (the pleaders concerned in this reference) and was carried unanimously. The resolution is in these terms:

That in view of the fact that Babu Nagendra Nath Bhattacharya in contravention of the resolution of this association dated 9th March 1911 accepted the brief on behalf of the prosecution in the Grown case of King-Emperor on the complaint of C. I. D. Inspector Babu Mobini Mohan Sanyal against Babu Manindra Nath Dubey a member of the association, and in view of the unjustified and baseless allegations made by him against this association in the Court of the Sadar Sub divisional Officer, and again in the Court of the District Judge verbally as well as in written petition filed by him in Case No. 43 of 1930, Civil Miscellaneous, no member of this association shall act either as senior, junior, or colleague to Babu Nagendra Kumar Bhattacharya in any ease, civil or criminal in which he is or will hereafter be engaged, or receive any brief from him by way of transfer or otherwise, or accept any vakalatnama from him, or executed by him as ammukhtear for any of the parties thereto.

13. The president then moved that copies of the resolution should be circulated to all Bar Associations in the district.

14. Thereupon the Government Pleader made an application before the District Judge characterizing the resolution as grossly improper since it amounted to a professional boycott of Babu Nagendra Kumar Bhattacharya, and asked that action might be taken under the Legal Practitioners Act against the two pleaders who had proposed and seconded it. It further appears that in a proceeding under the Bar Councils Act it was alleged that the president of the Bar Association Mr. Kali Krishna Banerji by presiding at the meeting, supporting the boycott resolution, and proposing the resolution that copies of the first resolution should be circulated, was also guilty of misconduct and was liable to be dealt with under Section 10, Bar Councils Act.

15. The District Judge considered first the charges against Mr. Banerji and came to the conclusion that no charge had been made out against him. He found that he was acting in the discharge of his duties as president in presiding at the meeting, that there was no evidence that he actively supported the boycott resolution, although he did not raise his voice against it, and that in moving that copies of the resolution should be circulated his intention may have been to communicate a necessary warning to pleaders and litigants so that the interests of the latter should not suffer through ignorance of what had taken place.

16. The learned District Judge considered next the case as against the two pleaders, held that the boycott resolution was clearly improper, and that the pleaders by proposing and seconding it were guilty of misconduct.

17. At the outset an objection was taken before us on behalf of the opposite parties that the reference is incompetent on the ground that the District Judge has not complied with the provisions of Section 14, Legal Practitioner's Act. We disallowed the objection for reasons which have been given by us in a separate order.

18. On the merits the question which we have to consider is whether the pleaders by proposing and seconding the resolution of 23rd July 1930 have brought themselves within the mischief of Section 13 of the Act. It is clear that the only part of that section which is applicable is the last Sub-section (f) the words of which are ' for any other reasonable cause.' The view formerly prevailed that these words must be understood ejusdem generis with the class of misconduct referred to in the preceding sections: see Jogendra Narayan Bose [1900] 5 C.W.N. 48.

19. In a Madras case, Ganapati Sastri, In re [1909] 11 Cr. L. J. 274 the contrary view was taken that the words are not restricted to matters ejusdem generis. That view was also taken in a Full Bench case of this Court, Syed Wazid Hossain [1902] 29 Cal. 890 which was decided about a year after the case of Jogendra Narain Bose [1900] 5 C.W.N. 48 referred to above, and the decision in the latter case was dissented from.

20. More 'recently the matter has been considered by the Judicial Committee of the Privy Council in the case of Shankar Ganesh Dabir v. Secy. of State A.I.R. 1922 P.C. 351 in which their Lordships held that the words ' any other reasonable cause ' in Sub-section (f), Section 14, are not confined to acts done in a professional capacity by a legal practitioner. The words must therefore be interpreted according to their ordinary and literal meaning and not restricted to reasonable cause of the same class or description referred to in the preceding subsections. The question then is whether accepting this wider view of the subsection the pleaders have been guilty of improper conduct so as to render-them liable to punishment in the exercise of the Court's disciplinary jurisdiction.

21. Before entering upon a discussion of the matter it may be observed that we are not now immediately concerned with the resolution of 1911 as no proceedings have been taken in respect of it although the District Judge has remarked that that resolution was not proper and ought to be expunged from the Minute Book. As to the propriety of that resolution there can, we think, be no two opinions, involving as it did a flagrant and altogether unwarranted interference with rights of legal practitioners. In the consideration of the matter before us it is impossible to altogether exclude from consideration the original resolution, the two resolutions being connected together as cause and effect. The first is in general terms while the subsequent resolution gives effect to the first and deals with a specific instance of its breach.

22. In dealing with the question of misconduct it is necessary to consider the purpose and effect of the resolution. The primary purpose was presumably to punish the recalcitrant pleader for having defied the original resolution, white the resolution had also as its indirect object to make clear to all whom it might concern what the consequences of contumacy would be. The effect was to inflict upon Babu Nagendra Kumar Bhattacharya a very serious injury since it meant that in future no pleader of the association would have any professional relations with him, and there can be no doubt that that would be calculated to cause serious damage to him in the exercise of his profession. Taking the most lenient view possible can it be hold that the pleaders were justified in actively associating themselves in the passing of such a resolution? In my judgment the answer is plain. It is a fundamental right possessed by every legal practitioner that he may be allowed freely to exercise his profession and to appear in any ease in which he may choose to appear without interference of any kind except where such interference is based upon some valid and legal ground. The claim of a Bar Association to enforce a resolution of this kind amounting to a professional boycott of one of their members upon a ground such as we have here cannot be recognized as legitimate. If it were, the consequence would be that in any criminal case against a pleader of the Berhampur Bar Association the services of a pleader could not be obtained for the prosecution unless the case was of a sufficiently serious character to warrant the engagement of the Government Pleader, who alone was exempted from the operation of the resolution. That means that in any case of a less serious nature, or in which the complainant was two poor to incur the expense of briefing the Government Pleader, the prosecution would be deprived of proper legal assistance.

23. It has been stated on behalf of the opposite parties that there are pleaders at Berhampur who are not members of the Bar Association, and that recourse could he had to them. But we think it may be safely assumed that most of the leading pleaders are members of the Association and that, oven if legal assistance were obtainable, the result would be to handicap any prosecution in which a member happened to be an accuse 1 save an 1 except where the Government Pleader was briefed. It really seems to amount to this: that a resolution in such terms is something like a protective shield which, if it did not secure immunity from criminal prosecution altogether, would at (all events prevent the prosecution from obtaining competent legal assistance. A resolution of this kind, and likely to have such consequences, is open to serious objection. It is contrary to the best traditions of the Bar and to all accepted notions of forensic propriety. Nor is it in the interests of legal practitioners as a body that their liberty should be permitted to be circumscribed in this fash on A pleader has every right to appear in any case whether it be against a fellow member of his Bar Association or not. Indeed it is his duty to do so if engaged. As was pointed out by Sir Grimwood Mears, C, J., of the Allahabad High Court, in a recent case, Muhammad Inayet Ali v. Fazal ul-Rahman =122 I.C 891=51. All. 892.

There is a definite and well recognized rule, which however does not seem to be understood in this country: that a lawyer must take up a case for any member of the public if (1) a fair and proper fee is tendered to him; (2) adequate instructions are given to him; (3) the case is of a class which the lawyer is accustomed to do.

24. His Lordship then went on to say that there might be circumstances in which a legal practitioner might decline to take up a case, but that to refuse to do so simply and solely on the ground that he would not appear against a brother practitioner would be professional misconduct and should be dealt with as such. The reason of the rule, he said, was obvious, for, if lawyers as a body refuse to act against other lawyers, they would become a class standing above the law, and justice would be denied to the public.

25. It is, I think, generally recognized that legal practitioners have their duties towards the Courts and are expected to co-operate with them in the orderly and pure administration of justice. They cannot he permitted to act, or to combine with others against such authority and in a manner calculated to impede or interfere with the administration of justice.

26. In my judgment, and for the reasons I have given, the action of these two pleaders in proposing and seconding the resolution of 23rd July 1930, amounts to reasonable cause' within the meaning of those words in Section 13 (f) of the Act, and we should be wanting in our duty if we failed to deal with the matter in the exercise of our disciplinary powers. The utmost that can be said for the pleaders is that, as the resolution of 1911 was on the Minutes of their Association, they may have conceived however erroneously, that they were justified in proposing that it should be enforced. But that cannot be accepted as an adequate excuse. The original resolution was certainly improper and cannot be pleaded in justification of the subsequent resolution which was open to even more serious objection, since it gave effect to and translated into action the first.

27. The question we next have to consider is as to the order which it would he appropriate to make in the circumstances of the case. As to that, speaking for myself, I would have been prepared, if the pleaders had recognized their error, and had expressed regret for their conduct, to merely administer a warning. Unfortunately they have elected to do otherwise. Not only have they expressed no regret for their action either before the District Judge or before us, but they have on the contrary persisted in maintaining that they were justified in what they did, that the resolution was proposed in good faith, and that it was never intended, nor did as a matter of fact interfere with the administration of justice, or even remotely infringe any rule of law or procedure (vide para. 2 of their statements showing cause). The claim is further made by them (in para. 9) that the resolution and their conduct were purely private matters as between' members of the Bar Association and Babu Nagendra Kumar Bhattacharya by which the public or the Government were not in any way affected, and that they cannot form the basis of the proceeding under the Legal Practitioners Act. These propositions obviously cannot be assented to.

28. As to the claim that the administration of justice has not in fact been interfered with, it is not of course possible to speak definitely, although it cannot be said to be improbable, that the original resolution may have had such effect, while the resolution of 1930 is certainly calculated to do so.

29. One of the arguments employed on he-half of the pleaders by way of justifying their conduct is that, so far from injuring Babu Nagendra Kumar Bhattacharya they on the contrary benefited him, as the result of their action has been that his name appears first in the panel of pleaders who are to get briefs for the Grown in criminal cases. As to this it is only necessary to say that, if that has been the unexpected result it was certainly not contemplated or even remotely thought of by those who passed the resolution.

30. After giving my most careful consideration to the matter I am of opinion that we must accept the reference and that the pleaders Babu Shyama Pada Bhattacharya and Sasankar Sekhar Sanyal should be suspended from practice for a period of one month from the date when our order is received in the Court below.

Suhrawardy, J.

31. I agree.

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