Richard Garth, C.J.
1. In this case Mr. Ghose applied to this Bench in September last for a rule under the following circumstances:
A preliminary enquiry had taken place at Noakhally before the Deputy Magistrate, Mr. Barber, with regard to several persons, who were charged with dacoity. One of the prisoners, Chand My an, was defended by a first grade pleader, named Kristo Lall Nag, who, in the course of the enquiry, asked questions of the witnesses, which showed that he was in possession of copies of certain Police investigation papers.
2. It afterwards appeared that; he had copies of confessions which bad been made to the Police by three of the prisoners (other than the man he was defending) and also copies of depositions of certain witnesses also taken by the Police; and he made use of these copies in conducting his client's case.
3. As copies of these papers are not allowed by the Police authorities to be given to anybody, the Deputy Magistrate considered that those which the pleader used must have been obtained improperly, if not dishonestly; and after some communication with the Officiating District Magistrate, Mr. Cooke, an enquiry was instituted in the Police Office, the result of which was that some of the Mohurrirs employed in that office were punished.
4. After hearing this application, we thought it right to issue a rule in the following form:
Let a rule issue, calling upon the Deputy Magistrate of Noakhally to show cause why the order of suspension of the pleader in question should not be set aside. Meanwhile, let the record of the proceedings be sent for; and we direct that the order of suspension be itself suspended, until the High Court has had an opportunity of investigating and deciding the matter.
A copy of this rule will be served on the District Magistrate, as well as the Deputy Magistrate, and it will be heard in due course before the Vacation Bench.
We may add, that so far as we can ascertain from the facts brought before us, the only charge made against the pleader was that he had in his possession copies of certain Police papers, which, for aught that appears, he may have obtained by perfectly honest means. Even assuming that the Deputy Magistrate had any authority by law to suspend the pleader, which at present we much doubt, it certainly seems a very arbitrary proceeding, not only as regards the pleader himself, but the prisoners whom be was defending, that he should be suspended from practice pending the enquiry, without any opportunity having been given him of showing cause against the suspension.
5. Our object in making this rule returnable in the vacation was, that the matter should be disposed of with as little delay as possible; but it seems to have been considered desirable that the Rule should be heard by the Bench which granted it.
6. It was, therefore, brought on again by Mr. Ghose before this bench on the 22nd of last month; and we have now had an opportunity of reading the record of the proceedings, as well as a statement, dated the 19th of September last, prepared by Mr. Cooke, in which that gentleman explains his view of the matter, and the reason why proceedings were taken against the pleader.
7. No cause has been shown against the Rule by the Deputy Magistrate, Mr. Barber, and he appears, notwithstanding our order, to have heard the case against the pleader on the 21st of September. We have received his final judgment, returned with the other papers, dated the 2nd of October, in which he finds the pleader guilty of dishonest and unprofessional conduct, and recommends that he should be suspended from practice for one month.
8. This non-compliance with our order appears to have been due to some misunderstanding upon the part of Mr. Cooke. His clear duty was, upon receiving that order, to have forwarded it to Mr. Barber, with directions that it should be at once obeyed. We desired to have the record sent up with Mr. Barber's own explanation, in order that this Court might decide, whether the case against the pleader should be proceeded with at all, and whether he had been legally suspended; and we were specially desirous of having an explanation from Mr. Barber himself, because we wished to know whether at the time when he issued the order, of suspension, he was aware that the pleader had been retained to defend the other prisoners. We now find no reason to suppose, upon a perusal of the papers, that he was aware of that fact. If he had been, we should have considered it our duty to deal with the matter in a very different way, and to have brought it to the notice of His Honour the Lieutenant-Governor.
9. We have now to consider the two main points, upon which the Rule was originally obtained by Mr. Ghose, namely:
1st.--Whether there was any ground for the finding of the Deputy Magistrate that the pleader had been guilty of misconduct.
2ndly.--Whether, under the Legal Practitioners Act of 1879, the Magistrate had any power to make the interim order of suspension. As our first impression upon both these questions was entirely opposed to the view which has been taken not only by the Magistrates concerned, but also, as it would appear, by the Sessions Judge, we thought it more than usually important that the Government should be represented at the hearing; and as we found that Mr. Kilby, the Deputy Legal Remembrancer, had not been sufficiently instructed, we postponed the hearing for some days, in order that he might have an opportunity of considering the papers, and consulting, if necessary, the Advocate-General upon the subject.
10. We have now heard the case discussed a second time; and we find that Mr. Kilby, having consulted the Advocate-General, is not prepared to uphold the decision of the Magistrate upon either point.
11. It, therefore, only remains for us to give our reasons for overruling that decision.
12. As regards the first point, it appears from the judgment of Mr. Barber, that the only ground upon which he considered, and has since found, the pleader guilty of misconduct was, that he had in his possession and had used in the defence of his client certain copies of depositions of witnesses which had been taken against the prisoners by the police, and of confessions which had been also made to the police by some of the prisoners.
13. We understand that these depositions and confessions had been taken down in writing, and were in the custody of the mohurrirs employed in the Police office, and it was no doubt the duty of those persons not to allow copies of them to be taken.
14. It has not been proved, nor even alleged, as against the pleader, that he was himself either party or privy to the procuring from the Police office the copies which he had in his possession; but the Deputy Magistrate seems to think that as he must have known what the rules of the office were, he was guilty of dishonest, or at any rate dishonourable and unprofessional, conduct in using copies, which had been improperly obtained.
15. The Officiating Magistrate, we observe, goes further. He compares the conduct of the pleader with that of a receiver of stolen goods.
16. We consider that this view of the case is entirely erroneous; and that it is based on misconception not only of the duties of an advocate, but of the nature of the right, which the Police authorities had, to the depositions and confessions, which were taken down in writing. There was nothing, so far as we can see, in the subject-matter of those depositions or confessions, which gave the Police authorities any special property in them or which prevented the pleader, upon either legal or moral grounds, from using them on behalf of his client.
17. If any one of the prisoners or other persons who were present at the time when the depositions were taken, or the confessions made, had been a sufficiently good scribe to take down in writing what either the prisoners or the witnesses said, or had a sufficiently good memory to have correctly related what took place to the pleader, it is clear that the latter would have been perfectly justified in using the information for the benefit of his client in any way which the rules of evidence allowed.
18. The only impropriety, if there was any, was in the manner in which the copies of these documents were obtained from the Police office; and to that, so far as appears, the pleader was neither party nor privy.
19. If the subject-matter of the documents had been of a private or personal nature, the case might be different; but these is nothing either in the depositions of the witnesses, or in confessions of a prisoner at a Police investigation, which makes them, so far as their subject-matter is concerned, anymore the property of the Police than the property of the prisoner.
20. Nor is there anything inconsistent either with justice or morality in the pleader's using the information for the benefit of his client. As a matter of fact and of practice, it constantly happens that copies of Police papers are obtained and used at criminal trials. Mr. Ghose, who has had a large experience in criminal cases in the mofussal, informs us that there is hardly any case of importance, in which counsel are engaged to defend a prisoner, in which some copies or statements of proceedings which have taken place in the Police office are not handed to counsel by way of instructions. And Mr. Kilby, who has also had considerable experience in such matters, and who has appeared here in this case on behalf of the Government, is not prepared to deny that statement, or to justify the Magistrate in the course which he has taken.
21. We are of opinion, therefore, that the facts found by the Magistrate disclose no misconduct of any kind, professional or otherwise, on the part of the pleader.
22. The next question is, whether in making the order of the 30th of August, calling on the pleader to show cause why he should not be punished, the Magistrate had any right to suspend him in the meantime from practice?
23. Here again, we consider that both the Magistrates and the District Judge have taken an erroneous view of the law.
24. Readings. 14 of the Legal Practitioners Act, 1879, in conjunction with Section 40, we have no doubt whatever that the power of interim suspension, which is given by Clause 5 of Section 14, can only be exercised after the pleader has been heard in his defence, and pending the investigation and the orders of the High Court.
25. This indeed appears to us to be the natural interpretation of the clause, even when read by itself; but coupled with Section 40, the meaning is still more clear. And it seems only right and reasonable that this should be its meaning, because it would seem a dangerous and arbitrary power to entrust to any Court, to suspend a pleader from practice, before he has had an opportunity of being heard in his defence.
26. This very case is a remarkable illustration of the injustice that might be done, not only to the pleader himself, but to his clients, by the exercise of such a power without any legal ground.
27. The High Court, so far as we are aware, does not possess any such power; and it certainly tends to strengthen our view of the meaning of the Act, that under Section 42 there is an express provision, that the Chief Court of the Punjab is not to dismiss or suspend an advocate, until he has had an opportunity of being heard in his defence.
28. The Rule will therefore be made absolute to set aside ab initio the proceedings of the Deputy Magistrate.