1. In this case, a complaint having been made to this Court, the matter was referred by the Court to the Bar Council. A tribunal was constituted under Section 11 of the Act, and the Tribunal, under the rules made by this Court, heard the complainant as it was entitled to do. The Court is now sitting to consider the report of the Tribunal and Mr. Sen who desires to appear and be heard on behalf of the complainant very properly draws our attention to the question whether such appearance by the complainant before this Court is allowed by the statute.
2. Now, it is quite true that in Sub-section (3), Section 12 of the Act, a number of persons are mentioned who by the terms of that clause must be given notice. Notice is to be given to the advocate concerned, that is to say, the advocate against whom the complaint has been made, to the Bar Council and to the Advocate-General. But it is not stated in that subsection that notice must be given to the complainant. In Sub-section 1, Section 12, the procedure to be followed by the Tribunal in the conduct of inquiries is left to be governed by the rules made by the High Court. It may or may not be that the legislature intended that the Court should have a discretion to say that all proceedings before the Court should be conducted by the Bar Council, by the Advocate-General, by some other persons; but under the rules which this Court has made the complainant is a person who is entitled to appear before the Tribunal and to prosecute his complaint. It seems to me that Sub-section (3), Section 12 of the Act, cannot be intended to exclude the right of the Court to hear any person other than the persons mentioned in that subsection when the object of it is to ensure that certain people shall have notice not to fetter the hands of the Court in giving notice to and hearing all proper parties. It has been pointed out to us that under Sub-section (5), Section 12 this Court has a complete right to pass such order as regards the payment of costs of the inquiry and of the hearing as it thinks fit. It seems to me to (be fairly clear therefore that it is in the power of the Court upon such an application as the present to hear the complainant. It further appears to me that in an ordinary case it would be the duty of the Court to hear the complainant, if he so desires. I have no doubt at all that any matter which Mr. Sen on behalf of the complainant may desire to bring to our notice may be properly brought to our notice and we shall hear him as 'counsel for the complainant.
C.C. Ghose, J.
3. I agree.
4. I agree.
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5. In this case, an advocate Mr. Hemanta Kumar Roy Choudhury was accused of professional misconduct in that he misappropriated a sum of Rs. 580, received by him in connexion with an appeal in the criminal jurisdiction of this Court. The complaint made was that this money had been received by him for the purpose of employing and remunerating certain counsel on behalf of the complainant's brother Sahadeb who was bringing the appeal. The case for the advocate was that he had received altogether Rs. 500, Rs. 300, being his settled remuneration and Rs. 200, for arranging the release on bail of Sahadeb. The complaint having been referred for investigation to a tribunal of the Bar Council constituted under the Bar Councils Act we have before us a careful and clear finding. It will appear that the Tribunal have gone into this matter with the greatest care having spent 11 sittings and having heard counsel on behalf of the complainant as well as on behalf of the advocate. They have heard witnesses and they have come to the conclusion that the main witnesses on behalf of the complainant are unreliable witnesses telling stories which cannot be accepted as true. Accordingly, they have found that the version given by the advocate of what had been paid to him and the purposes for which it had been paid is true and that the advocate attended this Court on all the occasions when he was required to attend and appeared at the hearing of the appeal. The finding of the Tribunal is not only that the complainant has not established the charges or any one of them, but that the same have been disproved. In these circumstances, Mr. Sen on behalf of the complainant has to accept the position that, until these findings can be displaced, it is clear enough that this Court can take no action upon the complaint except to dismiss it. It seems to me that, after so careful and reliable an investigation of the facts, it would be somewhat hopeless in a case of this kind to expect this Court to substitute another view of the credibility of the witnesses for the view that has been taken by the Tribunal. The exact extent of the rights of the complainant in this matter may be left to be further considered as occasion arises. But it does not seem to me that it would need very good reason indeed to induce this Court to throw over the findings of fact which have been arrived at by a tribunal constituted of people who are specially qualified to deal with all such questions of fact. In these circumstances, the order which this Court proposes to make is that the complaint be dismissed.
6. I have no doubt that the complainant in this case must be directed to pay the costs of the advocate in respect both of the inquiry before the Tribunal and of the application before us. We are empowered under the rules to assess such costs. But for the purpose of assessing the costs to be paid under this order, we direct an inquiry to be made by the registrar of the original side as to what sums have actually been paid by the complainant and the advocate in respect of the costs of the enquiry and, upon knowing exactly what sums have been paid, we will be in a position to deal with the matter.
C.C. Ghose, J.
7. I agree.
8. I agree.