1. This is a reference under Section 14 of the Legal Practitioners Act in the matter of Babu Rajani Kanta Ghose, Mukhtear. The facts proved by the evidence are narrated by the District Judge in his letter of reference. Babu Rajani Kanta Ghose was engaged as a Mukhtear on the side of the prosecution in a criminal case in which there were four accused persons. Under instruction received from one Padlochan Das, who was looking after the case of two of these accused persons, namely Harihar and Nirubar, Babu Rajani Kant Ghose prepared a draft written statement on their behalf. It has been proved that neither Harihar nor Nirubar gave instruction direct to him to prepare the draft. The draft written statement was taken to the gentleman who was engaged as Mukhtear on behalf of the four accused persons. When he read the written statement he found that it would be impossible to file it in Court, inasmuch as it implicated the other two accused to their prejudice. The result was that Babu Nabakrishta Das Adhikary did not file the written statement. It is thus obvious that Babu Rajani Kanta Ghose, while engaged for the prosecution in the criminal case, did prepare a written statement for the use of two of the accused persons. In these circumstances the Sub-Deputy Magistrate took proceedings under the Legal Practitioners Act and framed a charge in the following terms: 'Whereas it appears that you were retained by the prosecution in the case of Pahul Mali v Sishir Kumar Das Mohapatra and whereas it appears that you had drafted a written statement on behalf of accused Harihar and Nirubar and thereby acted contrary to the provisions of Section 13(a) of the Legal Practitioners Act, I charge you under the said Section of the said Act.' The Mukhtear filed a written statement in answer to this charge. Evidence was recorded in due course and this reference ultimately made by the District Judge as already stated.
2. It has been argued before us by Mr. Hazra that no case has been made out under Section 13(a) of the Legal Practitioners Act, inasmuch as the evidence establishes that Padma Lochan Das who approached Babu Rajani Kanta Ghose was authorized by Harihar and Nirubar to look after the Criminal case on their behalf. In our opinion, it is not necessary to consider whether the evidence does or does not establish this point. The reference need not be treated as one Under Section 13(a) which provides for the case where a Mukhtear takes instructions except from the party on whose behalf he is retained or some person who is the recognised agent of such party within the meaning of the Code of Civil Procedure or some servant, relative or friend authorised by the party to give such instructions. The facts stated in the notice issued by the Sub-Deputy Magistrate show that the case was really under Section 13 Clause (b); which includes a case where a legal practitioner is guilty of fraudulent or grossly improper conduct in the discharge of his professional duty.
3. There is, in our opinion, no doubt as to what actually happened. It is plain upon the evidence and upon the admission of the Mukhtear that while he was acting on behalf of the prosectution, he drafted a written statement on behalf of two of the accused persons. An attempt has been made to support the theory that he might have forgotten the facts of the case and might not have realised that the written statement which he drafted related to the very case he was to conduct on behalf of 1 the prosecution. We find from the record, however, that he accepted the Mukhtearnama on the 14th June 1921 when the proceedings were instituted, and the written statement was not drawn up till the 16th February 1922 at the concluding stage of the trial. During the six months which had elapsed, he might be expected to have made himself familiar with the case for the prosecuton. Indeed he does not allege that he was under a misapprehension, He pleads that he did not realise that his conduct was improper; in other words, he believed in good faith that, though he was Mukhtear for the prosecution, he was free to prepare the written statement for the accused.
4. As this has happened once and may happen again, it is desirable to state the well settled general rule that a legal practitioner cannot represent conflicting interests or undertake the discharge of inconsistent duties. When he has once been retained and received the confidence of a client, he cannot accept a retainer from or enter the service of those whose interests are adverse to his client in the same controversy or in matter so closely allied thereto as to be in effect a part thereof. The rule is rigid and is designed not alone to prevent the dishonest practitioner from fraudulent conduct, but as well to preclude the honest practitioner from putting himself in a position where he may be requires to choose between conflicting duties, or be led to an attempt to reconcile conflicting interests, rather than to enforce to their full extent the rights of the interests which be should alone represent. This is not the first instance in which the rule has been broken and reference may be made to the cases of Davies v. Chugh (1837) 8 Sim. 262 : 6 L.J. (N.S.) Ch. 113 : 1 Jur. 5 : 42 R.R 171 : 59 E.R. 105; Cholmondeley v. Clinton (1815) 19 Ves. 261 : 2 Ves. & B. 113 : S. Coop. 80 : 13 R.R. 183 : 34 R.R. 515; Day v. Ponsonby (1842) 5 Ir. Eq. Rep. 24, Fidelity is required from all who hold fiduciary relations, they must not lightly enter upon such relationships, but if they do, they will not be permitted to be disloyal; and of all species of disloyalty, desertion and adherence to the enemy or to the opposite party in a suit is recognised as the worst. On these grounds it has been held that the attorney may be disbarred where he conducts a criminal prosecution against a person or assists therein, and thereafter appears for the defence, or while acting as attorney for the prosecutor in a criminal case he accepts money from the defendant in consideration of a dismissal. Reference may in this connection be made to the decision in Ali Muhammad v. Sham Lall 45 P.L.R. 1904; Ugri Bhoi v. Shridhar Kulta 1 N.L.R. 52; Rai Durgapershad v. Baivan Bi 12 C.P.L.R. 35; Pallonji Merwanji v. Kallabhai Lallubhai 12 B. 85 : 6 Ind. Dec. (N.S.) 543; Ramlall v. Moonia Bibee 6 C. 79 : 5 Ind. Jur. 583 : 3 Ind. Dec. (N.S.) 52 and Reg. v. Bezonji Nowroji 12 B. 91n. : 6 Ind. Dec. (N.S.) 547. We may observe that the Conduct imputed to an attorney when it is said that he has received instructions from both sides in a cause is so disreputable that unfounded allegation to this effect is considered actionable without proof of special damage; Shire v. King (1603) Yelv. 32 : 78 E.R. 24 reported as King v. Shore (1603) Cro. Elz. 914 : 78 E.R. 1135 Brokes case (1595) Moore (K.B.) 409 : 72 E.R. 661.
5. The Mukhtear before us is not the first member of the legal profession who has been under the delusion that it is open to a person to appear on behalf of the prosecution and at the same time to assist the defence. The case of People v. Spencer (1882) 61 Calif. 128 shows that he has had a predecessor where the attorney concerned conducted the case for the prosecution and then looked after the case for the defence. When he was called upon to explain his conduct he staled in all innocence that he did not realise that his conduct was reprehensible. The Court thereupon made the following observations: 'By appearing both for the plaintiff and defendant in the same action he was guilty of violation of his duty as an attorney for which it is our duty to remove or suspend him. Neither his ignorance of the laws nor the crudity of his notions of professional ethics, can excuse an offence against professional propriety by one whose duty it is to assist in the administration of justice. The degree of turpitude involved in the breach of his duty by an attorney, however, must appear in the circumstances of each case. The punishment which should folk an inadvertent or ignorant departure from professional propriety, no seriously evil consequences having resulted, should be less severe than where the offence is a deliberate or corrupt violation of official oath. The circumstances presented by the reread, while they go towards showing an absence of intentional wrong, do not justify respondent. However innocent his motives his conduct must be condemned, yet in consideration of the facts we are disposed to inflict a penalty which, while it shall satisfy the provisions of the Code and mark our disapprobation of his act, shall not forever debar the respondent from the further practice of his profession.' The Court then suspended the attorney from practice for a period of three months. We are of opinion that in the case before us a similar order may be made. We direct accordingly that the Mukhtear be suspended for a period of three months from this date.