1. The first portion of this Rule requires the District Magistrate to show cause why the order of suspension made by him under the Legal Practitioners Act (XVIII of 1879) should not be set aside on the ground that it was passed without jurisdiction. There are two chief defects in the proceeding under that Act. In the first place, the Mukhtiar was not called upon to show cause, as required by Section 40 of the Act, Which, it has been held, governs the provisions of Section 14, which give to a Judge power of suspension pending the investigation and orders of the High Court; and, secondly, in the present case there was no report to the High Court in terms of Section 14. It is only after such report that power is given to suspend; and a legal practitioner can only be suspended under paragraph 5 after he has been heard in defence under Section 40 and pending the investigation and the orders of the High Court. The investigation which is there referred to is an investigation by the High Court.
2. I am of opinion, therefore, that there is no power in the present case, under the provisions of this Act, to make the order of suspension which has been complained of.
3. The second portion of the Rule asks the District Magistrate to show cause why the order for prosecution should not be set aside. The order could not be made under Section 195, Criminal Procedure Code, because there was no complaint made nor sanction given. But the learned District Magistrate sought to justify the order referred to under the provisions of Section 476 of that Code. The District Magistrate made the order under that section. The question, therefore, is whether the alleged offence was brought to his notice in the course of a judicial proceeding. The explanation submits that the judicial proceeding was a proceeding under the Legal Practitioners Act. But as to this it is to be observed that proceedings under Section 14 of that Act were before the Magistrate only to the extent that an application for sanction for suspension had been made by a letter to him. It is not necessary to consider whether a proceeding properly initiated by way of giving of such sanction is a judicial proceeding within the meaning of Section 436. But even assuming, for the sake of argument, that it is such a judicial proceeding, the answer is that for the reasons I have already given, the proceeding was pot properly before the District Magistrate at all, who could not grant any sanction until after the report had been made and pending an investigation by the High Court.
4. On this ground, therefore, the Rule must be made absolute.
5. I entirely agree. The provisions of Section 40 of the Legal Practitioners Act, 1879, seem to apply to interim orders of suspension made under paragraph 5 of Section 14 and this has, indeed, been held by this Court in In the matter of Kristo Lall Nag 10 C. 256. And I think that the 'investigation' referred to in that paragraph is the investigation in the High Court following the receipt by it of the report submitted under paragraph 4.
6. As regards the order under Section 476 of the Criminal Procedure Code, the District Magistrate was not, in my opinion, here acting 'in the course of a judicial proceeding.'