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In Re: Kali Prosanno Bose Chowdhury and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in7Ind.Cas.622
AppellantIn Re: Kali Prosanno Bose Chowdhury and anr.
Excerpt:
legal practitioners act (xvii of 1879), section 12 - muktear found guilty of serious offence of rioting, whether fit to continue to be muktear--offence not committed in relation to profession--true test--going behind conviction, whether allowable. - .....should not be suspended or dismissed on the ground that they have been previously convicted of a criminal offence implying a defect of character so as to unfit them to be muktears. it appears that the muktears laid claim to a chur which has recently been formed in the river padma near munshigunge. this led to disputes followed by criminal proceedings under section 145, criminal procedure code. the result was that the chur was attached and the collector settled the property with one arab ali. on the 17th september 1906 there was an unlawful assembly on the attached chur : this led to a prosecution of all the persons who had taken an active part as members of the unlawful assembly. they were convicted, and their conviction was subsequently affirmed by this court. later on, proceedings.....
Judgment:

1. The Rule now under consideration was issued under Section 12 of the Legal Practitioners Act of 1879, and called upon two muktears, Kali Prasanna Basu Chowdhry and Kali Kumar Basu Chowdhry, who practise at Munshigunge to show cause why they should not be suspended or dismissed on the ground that they have been previously convicted of a Criminal offence implying a defect of character so as to unfit them to be muktears. It appears that the muktears laid claim to a chur which has recently been formed in the river Padma near Munshigunge. This led to disputes followed by Criminal proceedings under Section 145, Criminal Procedure Code. The result was that the chur was attached and the Collector settled the property with one Arab Ali. On the 17th September 1906 there was an unlawful assembly on the attached chur : this led to a prosecution of all the persons who had taken an active part as members of the unlawful assembly. They were convicted, and their conviction was subsequently affirmed by this Court. Later on, proceedings were commenced against these two muktears, on the ground that they had committed an offence under Section 150, Indian Penal Code, that section provides that whoever hires, or engages, or employs, or promotes, or connives at, the hiring, engagement or employment of, any person to join or become a member of any unlawful assembly, shall be punishable as a member of such assembly, and for any offence which may be committed by any such person as a member of such unlawful assembly in pursuance of such hiring, engagement or employment, in the same manner as if he had been a member of such unlawful assembly or himself had committed such offence. On the 27th August 1908, these two persons were convicted by the District Magistrate and sentenced to pay a fine of Rs. 1,000 each, under Section 150 read with Section 144, Indian Penal Code, on appeal the conviction was affirmed by the Sessions Judge on the 5th November 1908. The question, therefore, which requires consideration is whether these persons have been convicted of a Criminal offence which implies a defect of character so as to unfit them to be muktears. The learned Vakil, who has appeared to show cause in answer to this Rule, has contended that the facts as they are stated in the judgment of the District Judge, are erroneous and that the incident took place not on the attached property but on an adjoining chur owned by these two persons and in the occupation of their tenants. In our opinion, it is not open to these two persons to go behind their conviction and to invite us to examine the facts with a view to arrive at the conclusion that the conviction was in substance erroneous.. This position is amply supported by the decision of their Lordships of the Judicial Committee in the case of In re Rajendro Nath Mukerjee 26 I.A. 242 : 22 A. 49 : 3 C.W.N. 736. No doubt, the convictions are not conclusive in the sense that merely be, cause these persons have been convicted of a Criminal offence, they are necessarily liable to be suspended or dismissed under Section 12, of the Legal Practitioners Act, This in fact is clear from the provisions of the section itself, which show that before a legal practitioner can be suspended or dismissed under that section, it must be proved that the conviction is for a Criminal offence, which implies a defect of character, so as to unfit him to be a member of the profession. We must, therefore, examine the facts as found by the Criminal Court and determine the true position of these two persons. Now the facts are fully set out in the judgment of the District Magistrate and are summarized by him. The accused were parties to the case under Section 145, Criminal Procedure Code, in the course of which they laid claim to the disputed chur. The effect of the order of attachment was to deprive them of any access to the property, and its subsequent settlement with Arab Ali by the Collector as Receiver made it obligatory on them to have recourse to a Civil suit, and not to take the law into their own hands; but they chose to adopt the latter course. On the 19th September 1906, they collected a number of armed men who formed an unlawful assembly with a view to take forcible possession of the char, and both Kali Kumar and Kali Prosanno were seen taking an active part in collecting these armed men. If these facts are accepted as amply proved by the evidence on the record of the Criminal case, there is no question that the District Magistrate was quite correct when he stated that the offence of which the accused had been convicted was of a serious character. An offence of this description committed by any person would be serious, but when it is committed by members of the legal profession, its gravity is obviously enhanced. In addition to this, it must be remembered that the course which these persons deliberately adopted amounted to a defiance of the authority of the Court in which they practised. The learned Vakil who has appeared on their behalf has invited our attention to the cases of In re Koylash Nauth Chowdhry 16 W.R. Cr. 41, and In re Durga Charan 7 A. 290, to show that although a pleader or muktear may have been convicted of a serious Criminal offence, the Court would not, as a matter of course, make an order for suspension or dismissal. In the first of these two cases, a muktear had been convicted of the offpnee of wrongful restraint of a ryot as also of an offence against the revenue laws. In the second case, a pleader appears to have been convicted of the offence of cheating. But in both these cases, no action was taken under the Legal Practitioners Act. These cases, however, do not lay down an inflexible rule of law for our guidance. As was pointed out in the case of In re Weare (1893) 2 Q.B. 439 : 62 L.J.Q.B. 596 : 69 L.T. 522 : 58 J.P. 6, which was quoted with approval by the Judicial Committee in the case of In re Rajendra Nath Mukerjee 26 I.A. 242 : 22 A. 49 : 3 C.W.N. 736, the Court will not hesitate to strike off the roll a solicitor who has been found guilty of a serious offence, even though such offence has not been committed in relation to his profession. [See also In the matter of a High Court Vakil (1910) M.W.N. 159 : 7 M.L.T. 427 : 6 Ind. Cas. 310; In the matter of two Second Grade Pleaders (1910) M.W.N. 163 : 8 M.L.T. 22 : 20 M.L.J. 500 : 6 Ind. Cas. 313; In re Blake (1860) 3 El. and El. 34 : 30 L.J.Q.B. 32 : 6 Jur. (N.S.) 1242 : 2 L.T. 429. In re Elton (1897) 13 T.L.R. 392; In re Cooper (1898) 67 L.J.Q.B. 276 ; In re Brounsall (1778) Cowper 829, which indicate that the test to be applied is, whether he is fit to continue to be an officer of the Court]. In our opinion, there can be no room for reasonable doubt that the case before us is one in which an order under Section 12 ought to be made, and the only question is as to the terms of the order, in view of the circumstances to which our attention has been drawn. The offence was committed so far back as the 19th September 1906. The conviction took place on the 27th August 1908, the result of which was to impose on both these persons a fine of Rs. 1,000 each. They have also been put to considerable expense in defending themselves in the Criminal case as also in the present proceedings. It has also been stated that they are both men of considerable standing in the profession, and, any order we may make is likely to effect their position and prospects, and will undoubtedly produce a deterrent effect. In view of all these circumstances we are inclined to take a merciful view of the case, and we direct accordingly that the petitioners be suspended from practice for three months.


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