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In Re: Babu Hari Prosunno Mookerjee, Mukhtear - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in39Ind.Cas.305
AppellantIn Re: Babu Hari Prosunno Mookerjee, Mukhtear
Excerpt:
legal practitioners act (xviii of 1879), sections 13, clauses (b), (f), 14 - subordinate court, power of, to make enquiry in cases failing under clause (f)--receipt of money from accused for bribing police--professional misconduct. - .....during the pendency of the case against ismail haji and his co-accused, the sum of rs. 436 was paid by ismail haji to the mukhtear. the question is whether the money was received by the latter for illicit and unprofessional purposes, namely, as disclosed in the evidence, the bribing of the police in order that the accused should not be sent up for trial. the suggestion made on his behalf is that the money was received for payment of the expenses of the criminal proceedings, including the fees of rs. 100 to be paid to a pleader named missra. this i do not believe to be a fact. the money was not expended for any such purpose. on the contrary, as i have stated, the receipt of the money appears to have been denied when the demand was made for it. it is true that there is no direct.....
Judgment:

John Woodroffe, J.

1. The Sessions Judge has reported that he thinks that it is clearly established that the Police received a bribe from one Ismail Haji through the Mukhtear Hari Prosunno Mookerjee, who acted as go-between in the matter. Ismail and some of his friends had Police cases pending against them and the object of the bribe was to secure that they should not be sent up for trial. The learned Judge was not prepared to find that the Mukhtear's conduct comes under Clause (b) of Section 13, but found that his action certainly furnished reasonable cause for punishment under Section 13 (f) of the Legal Practitioners Act, which says that a legal practitioner may be visited with suspension or dismissal for any other reasonable cause than those mentioned in Clauses (a) to (e) of Section 13.

2. The first question is whether or not the charge has been established in fact against the Mukhtear. To ascertain this we have read and considered the whole of the evidence in the. case. It appears on the evidence that the Mukhtear in the first instance attempted to deny receipt of the sum of Rs. 436, which Ismail Haji says that he had made over to him. This is now shown not to be true. It is admitted now by the Mukhtear that he did get Rs. 436, but he now says that the payment was made not by Ismail Haji but generally by the accused and that the money was not received by him in his official capacity as a Mukhtear but as a friend. As regards this, it appears that notwithstanding this he did claim some fee for his labour; I think the evidence warrants the conclusion that during the pendency of the case against Ismail Haji and his co-accused, the sum of Rs. 436 was paid by Ismail Haji to the Mukhtear. The question is whether the money was received by the latter for illicit and unprofessional purposes, namely, as disclosed in the evidence, the bribing of the Police in order that the accused should not be sent up for trial. The suggestion made on his behalf is that the money was received for payment of the expenses of the criminal proceedings, including the fees of Rs. 100 to be paid to a Pleader named Missra. This I do not believe to be a fact. The money was not expended for any such purpose. On the contrary, as I have stated, the receipt of the money appears to have been denied when the demand was made for it. It is true that there is no direct evidence of payment of money to the Police; nor is it likely that such evidence could, in such a case, be produced. Ismail Haji does not admit that he ever made the payment for any such purpose, as he would be in danger himself. Nevertheless, it appears from these proceedings that he himself had admitted that the money was paid for the purpose of bribing the Police. This, of course, is not evidence against the Mukhtear; but it is useful to show that no inference favourable to the Mukhtear can be drawn from the fact that Ismail does not say that it was paid for bribery. It is not necessary, however, to show that the money was in fact paid to the Police, or the manner in which it was paid; but it would be sufficient, in order to establish the charge, to show that it was received by the Mukhtear for such purposes. There is, however, evidence by way of admission which goes to show that money was paid to the Police, and the evidence of the Munsif is that he was visited by the Mukhtear, who stated to him that he was in difficulty and amongst other things he admitted to him that he bad received Rs. 60 from the Police by way of his share of the money which had been paid to him. We further notice the circumstance that thereafter he paid Rs. 150 to the charitable dispensary. It is suggested that this sum was extorted from him. But this I do not believe. We have the fact that the sum of Rs. 436, which is a large sum of money, was paid to him at the time when the accused were not sent up for trial and before any charge had been framed and that it was not expended on purposes for which it was suggested that it had been received, namely, the expenditure of the proceedings. It is admitted that the case is one of grave suspicion against the Mukhtear. But I think it is also more than this. I have no doubt on a consideration of the whole evidence that the Mukhtear received the money and that this money was received by him for the purpose of bribing the Police and that he acted as a gobetween; whether his hand actually paid the money to the Police or not. We have not any evidence before us as to the following point, but it is stated on his behalf that there were some proceedings in the Police Department against a Police: Officer who is said to have been implicated and that those proceedings have resulted favourably to the Police Officer. What these proceedings are, we do not know. In any case we are not concerned with them; but with the evidence on the record before us, I am of opinion that the commission of the act charged has been proved against the Mukhtear.

3. Then, there are two legal objections taken in the case. In the first place, it is said that there is no charge against the accused. The facts with regard to this part of the case are that a statement was made in the first instance to the Sub-Divisional Officer by Ismail Haji, who said that Rs. 436 had been paid by him to the Mukhtear for making tadbir in the case and that he had not got back the money although the Mukhtear had done nothing for him, and that this man seemed most unwilling to disclose for what purpose the money had been actually paid. This was recorded on the 21st January 1916. On the 1st February 1916 a note was made by that officer to the effect that the Mukhtear denies receipt of the money and that he has apparently made up the matter with Ismail Haji and the latter does not want to proceed with the case. From his letter to the District Magistrate it also appears that certain other facts came to his knowledge and on his report he was ordered by the District Magistrate to proceed with the investigation. It has been suggested on this that the Sub-Divisional Officer should not have himself tried the case; but the facts to which he refers in his report to the District Magistrate were facts which were subsequently deposed to in evidence before him. He had, therefore, no source of information which was not in fact before the Court at the time of the trial. Further, the enquiry was directed by the District Magistrate doubtless upon the report made by the Sub-Divisional Officer. A charge was framed and proceedings were then instituted, so that the accused might know what the complaint was that was made against him. It is suggested that something more than this is necessary. In my opinion this is not so.

4. The second objection is that as the act charged against the Mukhtear is found to come under Clause (f) of Section 13, the enquiry should not have been by the lower Court but by an order of this Court and that in fact that enquiry is without jurisdiction. This objection, in my opinion, also fails. In my opinion, the Court below had jurisdiction to make the enquiry which it did. We may point out, further, that the case was started regularly as a case of professional misconduct. The enquiry, therefore, was not irregular, though in the result the act disclosed is found to come under Section 13, Clause (f), and not under Section 13, Clause (b). Even, therefore, assuming (though not holding) that the High Court alone could enquire into the case and that the enquiry by the lower Court was not a proper one for the reasons stated, still it is open to this Court to avail itself of the enquiry already made and proceed to deal with the case itself. There is no reason why the enquiry by the lower Court, though not conducted under the orders of this Court, should not be adopted for the purposes of a proceeding under Section 13, even if we took the view that this Court could proceed only under Section 13 and not on a report by the Subordinate Court under Section 14 of the Act. In my opinion, as I have already stated, proceedings could be taken by a subordinate Court. This objection, therefore, also fails.

5. The only other question that remains is the nature of the order that we should make in this case, having regard to the conduct of the Mukhtear. This is a very serious offence and I may observe that this is not the first time that this Mukhtear has got into trouble. Both the District Magistrate and the Sessions Judge have considered that disbarring would not be an inappropriate punishment and I agree with them and order that this Mukhtear be dismissed.

Beachcroft, J.

6. I agree.


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