Mookerjee and Sharfuddin, JJ.
1. This is an application by one Abiruddin Ahmed, who was formerly a muktear and practised as such in the Criminal Courts at Rampore Boalia in the district of Rajshaye. On the 28th January 1903 he was dismissed by this Court, under Section 12 of the Legal Practitioners Act of 1879, on the ground that he had been convicted of a criminal offence, namely, an offence under Section 363 of the Indian Penal Code, implying a defect of character, which rendered him unfit to be a muktear. On the 26th July 1910 the present application was made with a view to the reinstatement of the petitioner, on the ground that since his dismissal he had borne an honourable character and had suffered considerable pecuniary loss. The application is supported by certificates as to the character of the petitioner and his present circumstances. These certificates are signed, amongst others, by the Junior Government Pleader of Rajshaye, members of the legal profession in that district, and other gentlemen occupying positions of responsibility. Notice of the application has been served uponthe learned Government Pleader, who has been heard, and has placed before us facts which he has ascertained from the District Judge of Rajshaye as to the previous conduct and character of the petitioner. Two questions arise upon this application (of which we take cognizance under the special direction of the Hon'ble the Chief Justice), namely, first, whether it is competent to this Court, after a legal practitioner has been removed from the roll, to re-instate him where the atonement of a long period of good conduct is offered, and, secondly, if the Court has the power to make an order of this description, whether an order in favour of the petitioner ought to be made in the circumstances of the present case.
2. In so far as the first of these questions is concerned, there can, in our opinion, be no room for controversy that it is open to a Court, when a legal practitioner has been dismissed for misconduct of any description, in the widest sense of the term, to re-admit him after the lapse of time, if he satisfies the Court that he has in the interval conducted himself honourably, and that no objection remains as to his character or capacity. In one of the earliest cases on the point, King v. Greenwood (1760) 1 W. Black. 222, where an attorney about two years previously had been struck off the roll for malpractice, and was, upon petition, re-instated, the Court declared that the striking off the roll was not to be understood as a perpetual disability, but was sometimes only meant as a punishment, and might be considered in the light of a suspension only, if the Court saw good cause. Again, in an Anonymous case (1853) 17 Beav. 475, a solicitor, who had been struck off the roll for misconduct, was restored after ten years, during which period he had, amidst great privation and suffering, maintained an irreproachable character; his application was supported by a memorial signed by a very large number of solicitors. Sir John Romilly, M.R., said that, though he was very properly struck off, yet, considering the great length of time that had elapsed and the great suffering that he had endured, and considering the testimonials to his good behaviour and conduct, and the absence of opposition from the Law Institute, he might be restored to the roll. In the course of argument in this case, counsel in support of the motion referred to the case of In re Smith Unrep. Cited in 17 17 Beav. 447, before Lord St. Leonards, in which Smith's name after having been struck off the roll for some irregularity in practice, as Master Extraordinary, was ordered to be restored, but with a proviso that he should be suspended 'front practising for six months. Another instance, in which a similar order, was made, is to be found in the case of In re Robins (1865) 34 L.J.Q.B. 121. A very instructive case is that In re Pyke (1845) 1 New Pract. Cases 330. Pyke was an Attorney. In 1836, after he had practised for about six years, his name was struck off the roll at his own request, in order that he might be called to the Bar. In 1838 he was called to the Bar: in 1843 he was disbarred by the Benchers on account of professional misconduct, namely, participation by previous agreement in the profits of an attorney. This decision was affirmed on appeal by fifteen Judges. In November 1845 Pyke applied to the Court to be restored to the roll of attorneys, but his application was refused : In re Pyke (1865) 6 B. & S. 703 : 37 L.J.Q.B. 121. In 1865 he applied again to be readmitted as an attorney, but this application also was refused: In re Pyhe (1865) 6 B. & S. 707 : 37 L.J.Q.B. 220. In the same year Pyke renewed his application, and was re-admitted: In re Pyke (1865) 6 B. & S. 707 : 37 L.J.Q.B. 220. Cock-burn, C.J., after observing that the same honour and the same integrity which are essential to the character and position of a barrister are also necessary to the character and position of an attorney, and that dishonest or dishonourable conduct which unfitted a man to be at the Bar was sufficient to exclude him also from the other branch of the profession, held that, both on principle and precedents, sentences of exclusion from either branch of the profession need not necessarily be exclusion for ever. The test to be applied is, in the words of the learned Chief Justice, whether the sentence of exclusion, however right, has had the salutary effect of awakening in the delinquent a higher sense of honour and duty and whether, in the interval, his conduct had been so irreproachable that, notwithstanding a delinquency in early life, he might be safely entrusted with the affairs of clients and admitted to an honourable profession without that profession suffering degradation. An application to strike off the rolls, or re-admit to them, ought not to be looked at with respect to the punishment of the individual Himself. The Court has a duty to perform to the suitors and to the 'profession of the law, and is bound to see that the persons admitted to it are persons on whose integrity and honour reliance may be placed, persons whose conduct has been such as to inspire confidence in their character. A very similar view was taken in the case of In re Brandeth (1891) 60 L.J.Q.B. 501, in which it was ruled that the Court has power, even where it is proved that a conviction for an offence against the Criminal law has taken place, but the atonement of a long period of good conduct has been offered, to restore a solicitor to the roll. In 1879 the name of Brandreth was struck off the roll upon proof of a conviction for obtaining money by false pretences from clients. In 1883 an application was made by him to be restored to the practice of his profession. This was refused by Grove and Mathew JJ., and a similar application made in 1886 to Grove and Stephen JJ., met with the same fate. In 1891, however, Lord Coleridge C.J., with the concurrence of Mathew J., held that sufficient grounds had been made out to restore him to the roll. One of the grounds upon which the learned Chief Justice proceeded was that the petitioner, who had been for twelve years off the roll, produced a very strong body of evidence that during the whole of that time he had conducted himself irreproachably. He added that there should be no occasion on which it was absolutely, as a point or rule of law, impossible for a man to redeem his character, and that if a man had done his very best so to redeem his character, he might be entitled to the indulgent consideration of the Court. In the course of his judgment, the learned Chief Justice mentioned an unreported case of another solicitor, Barber, who was prosecuted for complicity. in a fraud as to a will, convicted and sentenced to transportation in 1843; as a result, his name was removed from the roll, but he was subsequently re-admitted by the Court of Queen's Bench after three applications for re-instatement had been refused, twice by that Court in 1850 and 1851, and once by the Master of the Rolls in 1854: see this matter reported at one stage: In re Barber (1854) 19 Beav. 378. Cases are also to be found in the Reports where an application for reinstatement has been entertained, but refused on the merits: Ex-parte Frost (1815) 1 Chitty 558 note, where a solicitor had been convicted of seditious practices; In re Hawdane (1841) 9 Dowl. Pr. Ca. 970, where a solicitor had been twice convicted of conspiracy to extort money by means of libels; In re Garbett (1856) 18 C.B. 403, where the solicitor, who had been convicted of forgery, Reg. v. Garbett (1847) 2 C. & K. 474 : 1 Den. C.C. 226, had received a pardon and was dismissed in 1849 on account of perjury in an affidavit of increase, concealed the fact of conviction for forgery in his application for re-instatement; and In re Poole (1869) L.R. 4 C.P. 350 where an attorney who had been dismissed for misappropriation of moneys of a client, subsequently became bankrupt and applied for re-instatement without any offer of reparation. The case of In re Lamb (1889) 23 Q.B.D. 477, is clearly distinguishable, and shows merely that, when the dismissal has a permanent effect under statutory provisions, an order for re-instatement is not permissible.
3. The principle, deducible from the long series of English decisions we have just reviewed, has been adopted in the American Courts, and it is regarded there as indisputably settled that an order or judgment of disbarment is not necessarily final or conclusive for all time, but an attorney who has been disbarred may be re-instated, on motion or application, for reasons satisfactory to the Court. Thus in Boston liar Association v. Greenwood (1897) 168 Mass. 169 : 46 N.E. 568, it is stated that the removal of an attorney from office may be absolute, leaving the party to apply to the Court for re-admission if his offence is of such a kind that, after a lapse of time, he can satisfy the Court that he has become trustworthy, or the removal may be for a stated time if the Court is of opinion that the interests of the public will thereby be sufficiently protected. Again, in the case of In re Palmer (1894) 9 Ohio C.C. 55, 70, the test for re-instatement is thus formulated: looking a, the life and conduct of the attorney prior to the disbarment, have his life and conduct since that time been such as to satisfy the Court that, if restored to the Bar, he will be upright, honourable, and honest in all dealings? Will his restoration to the Bar be compatible with a proper respect of the Court for itself and with the dignity of the profession? See also In re Boone (1898) 99 Fed. 793, In re Treadwell (1896) 114 Cal. 24 : 45 Pac. 993, In re King (1896) 54 Ohio 415 : 43 N.E. 686, In re Enright (1897) 69 Ver. 317 : 37 Atl. 1046, In re Burris (1905) 147 Cal. 370 : 81 Pac. 1077, In re Essington (1904) 32 Colo. 168 : 75 Pac. 394, In re Weed (1904) 30 Mont. 456 : 77 Pac. 50, In re Newton (1902) 27 Mong. 182 : 70 Pac. 510, 982, In re Simpson (1903) 11 N. Dak. 525 : 93 N.W. 918, In re Sullivan (1904) 185 Mass. 426 : 70 N.E. 441.
4. The view taken in the English Courts has also been adopted by the High Court of Australia in a recent decision Incorporated Law Institute v. Meagher (1909) 9 Com. L.R. 655, where the authorities and the principles which underlie them are elaborately discussed. In 1896 Meagher was struck off the roll of solicitors, as he had been party to a conspiracy to pervert the course of justice. In 1904 he applied to be re-admitted to practice. The Court refused the application, but intimated that the application would probably be granted if renewed after the 1st June 1906, provided evidence was given of continued good conduct. In 1906 the application was renewed, but refused, as his conduct in the interval had been unsatisfactory. In 1909 he renewed his application again. The Supreme Court of New South Wales held that it was bound to re-admit the petitioner by reason of the promises made in 1904, unless it was proved that he had been meanwhile guilty of misconduct. Upon appeal by the Incorporated Law Institute, the order of re-admission was discharged. It was ruled by the High Court, first, that the order of re-admission, quite as much as an order of removal or suspension, was essentially judicial in its nature and liable to be challenged in. appeal; secondly, that a Judge is not entitled to bind himself or his successor by a promise as to future action on problematical facts; thirdly, that the question was not one of fact, but of proper inference to be drawn from relevant facts clearly ascertained, namely, whether, in spite of previous misconduct which had already grievously tainted his reputation and led to the order of dismissal, he had affirmatively satisfied the Court that he was a fit and proper person to stand in the ranks of an honourabls profession and in whom the public might repose undoubted confidence. Upon a review of the, facts, the Court reversed the order of re-admission, as it was not satisfied that, if the petitioner was restored to the roll, he might not act in a similar manner when opportunity offered.
5. These cases amply establish the position that, in so far as the English and American Courts are concerned, though the name of a legal practitioner may have been removed from the rolls by reason of professional misconduct or criminal conviction, the Court may in its discretion re-admit him, if satisfied that during the interval which has elapsed since the order of removal was made, he has borne an unimpeachable character, and may with propriety be allowed to return to the practice of an honourable profession.
6. The doctrine just explained has been adopted in this Court as well founded on principle, and we have been able to trace instances in which similar orders have been made with respect to an attorney In re Pearson (1872) Unrep. In re Cockerell Smith (1878) Unrep., a vakil In re Rup Nath Banerjee (1890) Unrep., and a pleader, In re Kally Prosonna Chatterjee (1885) Unrep., In re Nobin Krishna Mookerjee (1878) Unrep. On the 18th June 1867 this Court, (Peacock C.J. and Norman and Phear JJ.) removed from the roll an attorney by name Pearson for gross professional misconduct. Sir Barnes Peacock quoted, with approval, the observation of Lord Mansfield in Ex-parte Brounsall (1778) 2 Cowp. 289, that the test to be applied was whether the conduct of the attorney was such as made it proper that he should continue a member of a profession which should be free from all suspicion. The other learned Judges concurred in the view that the misconduct was of such a grave character that Pearson should be struck off the roll of attorneys. On the 11th January 1870, Pearson applied to be re-admitted, and produced numerous certificates to show that since his removal he had conducted himself as a strictly honourable man. This application was refused on the 18th January 1870. On the 15th February 1871 Pearson made another application, upon which no action was taken, as Norman C.J., with the concurrence of Phear J., thought that the application was premature. On the 26th March 1872 Pearson renewed his application, and counsel on his behalf relied upon the cases of In re Pyhe (1865) 6 B. & S. 703, 707 : 34, In re Poole (1869) L.R. 4 C.P. 350, and In re Robins (1865) 34 L.J.Q.B. 121. On the 16th April 1872 Sir Richard Couch C.J., with the concurrence of Jackson and Markby JJ., directed Pearson to be re-admitted to the roll of attorneys. Again, on the 22nd December 1875, Cockerell Alfred Smith was removed from the roll of attorneys by Garth C.J., and Phear and Pontifex JJ. for gross professional misconduct (misappropriation of the funds of a client); but subsequently he was re-admitted by Garth C.J., and Markby J., on the 25th February 1878, as he had, in the interval, done his utmost to make amends for his conduct, and produced a number of testimonials to show that he had honourably conducted himsell since his same was removed. On the 21st January 1878 a Full Bench of this Court (Sir Richard Garth C.J., Kemp, Jackson,: Markby, Ainslie, Birch and Mitter, JJ.) directed the name of Rup Nath Banerjee to be struck off the roll of vakils of this court, on the ground of grave professional misconduct, because he had proved himself unfit to be trusted with the conduct of business in the interest of clients, and had, when called upon to show cause, greatly aggravated his offence by the very dishonest manner in which he had dealt with the Court. Later on, on the 12th March 1890, another Full Bench of this Court (Sir Comer Petheram C.J., Norris, O'Kinealy, Macpherson, and Ghose JJ.) re-admitted him to the roll of vakils, on the ground that he had, in the interval, borne an irreproachable character, and that he had kept up his connection and acquaintance with the practice of the law. Similarly, one Kally Prosonna Chatterjee, a junior grade pleader, who practised in the Small Cause Court at Sealdah, was struck off the roll on the 14th August 1878 by Markby and Prinsep JJ. on account of grave professional misconduct (misappropriation of funds placed at his disposal by a client for the institution of a suit which he never filed). On the 6th April 1880 a petition submitted by him for restoration was rejected, on the ground that it was irregular, because it had not been presented by way of motion. On the 15th July 1881 an application made by him in that behalf was refused by Garth C.J., and Prinsep J. Some years later he renewed his application, and on the 8th January 1885 Prinsep and Pigot JJ. ordered him to be restored, on the ground that the time that had elapsed since the order of dismissal, and the certificate of his character in the interval, indicated that he had been sufficiently punished for his misconduct and had shown sufficient promise for future good behaviour. Finally, one Nobiri Krishna Mookerjee, who practised as a second grade pleader and was convicted and sentenced to a term of rigorous imprisonment for an offence under the Registration Act Nohin Krishna Mookerjee v. Rasnih Lall Laha (1884) I.L.R. 10 Cale. 1047 was removed from the roll of pleaders by order of a Division Bench of this Court (Pigot and O'Kinealy JJ.) on the 16th January 1885, Subsequently, on the 19th March 1888, by an order of the same two learned Judges, he was restored on the production of certificates of character. The recent; decisions of In re Abinash Chandra Moitra (1909) I.L.R. 37 Colc. 173 and In re Chand'a Singh (1910) 14 C.W.N. 521 : 11 C.L.J. 438, which were given upon application for review of judgment, and are consequently not directly in point, also indicate the nature and extent of the disciplinary jurisdiction of the Court in this class of cases. In fact that a Court which has taken such action may reconsider the matter is clear from the direction given by the Judicial Committee in Smith v. Justices of Sierra Leone (1848) 7 Moo. P.C. 174. These cases make it manifest that this Court has, in more than one instance, exercised the power it possesses to restore to the rolls a legal practitioner whose name had been struck off by reason of grave misconduct or conviction for a criminal offence. The only other question therefore, which arises for consideration is, whether in the circumstances of the present case, an order of this description ought to be made in favour of the applicant.
7. In so far as the facts of the case before us are concerned, they may be briefly narrated as set out in the application. The petitioner was, as we have stated, a muktear, and practised ordinarily in the Criminal Courts at Rampore Boalia in the district of Rajshaye. One Chandrabala brought a criminal case against the petitioner under Section 363 of the Indian Penal Code for having kidnapped her daughter Nistarini. The case was tried by Mr. Rattray, the Deputy Magistrate of Rajshaye, who convicted the petitioner, and sentenced him to rigorous imprisonment for six months. Upon appeal the conviction was set aside and the case remanded to the District Magistrate for re-trial. The District Magistrate transferred the case for re-trial to Mr. Rattray, who again convicted the petitioner. Upon appeal against the second conviction, the Sessions Judge remanded the case for re-trial, by the District Magistrate. The case was then transferred by order of the Court to the file of the Joint Magistrate, who convicted the petitioner, and sentenced him to rigorous imprisonment for one month. After recital of these facts the petitioner states that the District Judge subsequently made a reference under the Legal Practitioner Act to this Court, as a result of which the petitioner was dismissed Under Section 12. The petitioner adds that he has, during the seven years which have elapsed since the order of dismissal was made, employed himself as a law agent in the estates of several zemindars, that he has borne an irreproachable character, and that, as he has been placed in very embarrassed circumstances, he prays that his name may be restored to the roll of muktears. The application, as we have stated, is supported by several certificates. In answer to the petition the learned Government Pleader, who has rendered us valuable assistance in this matter, has placed before us a communication from the District Judge of Rajshaye, which, we regret to say, makes it manifest that the statements in the petition are imperfect and calculated to mislead the Court The District Judge states that after the conviction of the petitioner, on the 1st April 1902, when he was sentenced to rigorous imprisonment for one month, two references were made by the Sessions Judge to this Court, one under Section 438 of the Criminal Procedure Code for an enhancement of the sentence, and another under Section 14 of the Legal Practioners Act for the dismissal of the petitioner and the permanent cancellation of his license. On the first reference the sentence was enhanced to rigorous imprisonment for six months on the 18th June 1902, and on the second the petitioner was dismissed on the 28th January 1903. The learned District Judge further states that this Court, on the 9th June 1902, directed the petitioner to be prosecuted under Section 193 of the Indian Penal Code, on the ground that he had sworn a false affidavit in support of a criminal motion filed against an order of the Court of the Sessions Judge of Rajshaye. The records of this last proceeding have been discovered after considerable search, and the facts, in so far as we are able to gather them, are as follows. It appears that one Hamidullah Mondal was also convicted by the Deputy Magistrate of Rampore Boalia, on the 6th September 1901, under Section 363 of the Indian Penal Code, for having kidnapped from lawful guardianship the same girl Nistarini. In fact the incident was closely connected with that on account of which the petitioner himself was convicted. Hamidulla kidnapped her on the 24th December 1900; she was recovered, and Hamidulla was placed on his trial; Abiruddin acted as his muktear in these proceedings, and during their pendency managed to kidnap the girl with the assistance of a man named Hemattdla, which led to the prosecution and conviction of himself and his co-adjustor. Hamidulla appealed to the Sessions Judge, who affirmed the conviction on the 28th November 1901. Hamidulla then applied to this Court to revise the order, on the ground that the Sessions Judge had refused to hear his pleader. This application was supported by an affidavit of the present petitioner, Abiruddin Ahmed, made on the 17th December 1901, to the effect that he was present in Court on the 28th November 1901, and that the statement that the Sessions Judge had delivered judgment refusing to hear the pleader for the appellant was true to his knowledge. A rule was granted by Prinsep and Stephen JJ, and came to be heard by Stevens and Harington JJ., who made it absolute on the 12th March 1902, on the ground that the allegation in the affidavit remained uncontradicted, as no cause was shown. What had occurred was that the District Magistrate, Mr. Roe, upon whom the Rule had been served, did not communicate the allegations contained in the affidavit to the Sessions Judge, Mr. Lee, who happened at the time to be absent on inspection of the subordinate courts. But subsequently the Sessions Judge, when he received the record sent back to him by order of this Court for re-trial of the appeal, learnt of this allegation, and at once reported to this Court that the statement was wholly untrue. But as the Rule had been made absolute, and the appeal directed to be re-heard, the order could not be reviewed and rescinded; but the Court (Stevens and Harington JJ.), on the 16th April 1902, directed notice to issue upon the present petitioner to show cause why he should not be prosecuted for swearing a false affidavit, and also why he should not be dismissed under the Legal Practitioners Act. This Rule was served upon the petitioner, but, as he did not show cause, it was subsequently made absolute, and the petitioner was, on the 9th June 1902, directed to be prosecuted for perjury. But by reason of some inexplicable mistake in the office of the Government Solicitor, to whom the papers were forwarded for necessary action, the matter appears to have been overlooked, and the petitioner had the good fortune to escape the prosecution directed by this Court. Shortly afterwards, on the 18th June 1902, the sentences passed by the Joint Magistrate upon both Abiruddin and Hematulla were, upon a reference by the Sessions Judge, enhanced to rigorous imprisonment for six months each by Stevens and Harington JJ., and the petitioner was later on dismissed on the 28th January 1903 by Prinsep and Stephen JJ. It is not disputed that the order of dismissal was made with perfect propriety, and, indeed, the order cannot be successfully assailed, because, as Lord West-bury observed in In re Wallace (1866) L.R. 1 P.C. 283 : 4 Moo. P.C.N.S. 140, if an attorney be found guilty of moral delinquency in his private character, there is no doubt that he may be struck: off the roll. Upon the materials, therefore, so far as they are available to us, these facts are clear, namely, first, that the petitioner was convicted of an offence of a grave character under Section 363 of the Indian Penal Code, which implied moral turpitude to such an extent that this Court felt it its duty to enhance the sentence passed on him by the Subordinate Court, and to remove him from the roll; secondly, that the petitioner made a false affidavit in support of an application for revision made to this Court by Hamidulla, who was finally convicted of an offence under Section 363 of the Indian Penal Code in the course of a closely connected transaction; and, thirdly, that the petitioner has not, in the application now presented to us, made a full disclosure of his previous history, but has deliberately omitted to mention the fact of enhancement of sentence, as also the proceedings which culminated in the order by which his prosecution was directed for perjury. These facts, indeed, would not have been discovered, but for the assistance given to us by the learned Government Pleauer. Under these circumstances, after anxious consideration of the matter, we have arrived at the conclusion that it would not be right to re-admit the petitioner to the roll of muktears. If we were to make an order in his favour, he would be placed in a position of great trust and responsibility, which, we are of opinion, he should not occupy. To use the language of Mr. Justice Willes in In re Poole (1869) L.R. 4 C.P. 350, 353, 'if we look at the power vested in practitioners and officers of this Court, persons who thus have the sanction of the Court for saying that prima facie at least they are worthy to stand in the ranks of an honourable profession, to whose members ignorant people are frequently obliged to resort for assistance in the conduct and management of their affairs, and in whom they are in the habit of reposing unbounded confidence, if we look to the fact that in restoring the petitioner to the roll, we should be sanctioning the conclusion that he is, in our judgment, a fit and proper person to be so trusted, we feel that we ought not to do so, except upon some solid and substantial grounds.' The learned vakil for the petitioner strongly urged upon us to deal leniently and mercifully with the applicant, as he has a family dependent upon him for support, and these will be the principal sufferers from the failure of this motion. As Jervis C.J. put it in In re Garbett (1856) 18 C.B. 403, 413, that undoubtedly is a circumstance which we cannot but regard with the deepest regret and commiseration. But at the same time it must be observed that a wife and family have always been considered as guarantees to society that a man will conduct himself with honour and integrity in his dealings with the world; and we must not lose sight of the fact that if Ave permitted ourselves to be influenced by consideration oi that sort to extend mercy to the petitioner we should be running the risk of injury and injustice to the litigant public. Upon the whole, giving its due weight to all that has been urged on behalf of the petitioner, we must refuse this application.