Lancelot Sanderson, C.J.
1. This is a report under Section 14 of the Legal Practitioners Act by the Additional District Magistrate of Dacca with respect to charges of misconduct under sections 13(b) and 13(f) against three Pleaders and one Mukhtear practising in the Courts of and subordinate to the District Magistrate of Dacca. The report has been forwarded through the learned Sessions Judge of Dacca.
2. There were two other Pleaders against whom charges were framed, but the Additional District Magistrate came to the conclusion that there was no ground for reporting against these two Pleaders.
3. At the beginning of the hearing in this Court, a preliminary point was taken by the learned Vakil, appearing for Mohendra Lal Roy, that the reference was invalid by reason of the procedure adopted.
4. It was contended that the proceedings, if any, should have been instituted by the Deputy Magistrate who was trying the case during the hearing of which the incident which is the basis of these proceedings, occurred; that his report, if any, should have been submitted through the District Magistrate and the learned Sessions Judge as provided by Section 14(b) of the Legal Practitioners Act. It was further contended that the Additional District Magistrate had no jurisdiction to institute the proceedings.
5. The facts, which it is necessary to state for the consideration of this point, are as follows: It appears from the Gazette, that Mr. Gurner was appointed on the 15th October 1921 as Additional District Magistrate at Dacca with all the powers of a District Magistrate under the Criminal Procedure Code.
6. It appears from the report of the Additional District Magistrate, that at the time in question he was in charge of the criminal work, of the district, hearing criminal appeals and reporting the progress of criminal work to the High Court.
7. The incident, which is the basis of these proceedings, occurred on the 4th February 1922 in the Court of the Deputy Magistrate, Mr. S.P. Ghose, who was trying the case, Asutosh Das Gupta v. Puma Chandra Ghose 71 Ind. Cas. 670 : 24 Cr.L.J. 206 and another, in which the accused were charged with offences under sections 500 and 501, Indian Penal Code.
8. It seems that an account of the incident appeared in a newspaper, on the 5th February 1922. The Additional District Magistrate on that day wrote to the Deputy Magistrate, calling for a report of the circumstances relating to that incident. The Deputy Magistrate made a report on the 6th February 1922 and a further one on the 7th February 1922.
9. The result was that on the 9th February 1322 the Additional District Magistrate drew up a charge under the Legal Practitioners Act alleging misconduct within the terms of sections 13(b) and 13(f). Notice was duly given to the Pleaders and the Mukhtear concerned, and cause was shown before the Additional District Magistrate by them on the 6th March 1922.
10. The report of the Additional District Magistrate, dated 6th May 1922, was forwarded by him to the High Court through the learned Sessions Judge of Dacca.
11. The learned Judge heard learned Counsel on behalf of those concerned in the report, drew up his opinion on the matter, and sent it together with the report of the Additional District Magistrate to the High Court.
12. The Additional District Magistrate's Court was a Court subordinate to the High Court within the meaning of Section 14 of the Legal Practitioners Act and, in my judgment, the Additional District Magistrate was competent to draw up the charge. Hx was the Presiding Officer of the Court in, which the Pleaders and the Mukhtear were charged with the alleged misconduct and he was competent to report the matter to the High Court.
13. There is no mention of an Additional District Magistrate in Section 14 of the Legal Practitioners Act. This is explained by the fact that the power to appoint Additional District Magistrates was not vested in the Local Government until after the passing of the Legal Practitioners Act.
14. It was argued by the learned Standing Counsel that the Additional District Magistrate, being a Court subordinate to the High Court, might have reported direct to the High Court. In my judgment, however, the Additional District Magistrate very properly followed the procedure laid down in Section 14(c) with reference to a report by a District Magistrate and forwarded the report through the learned Sessions Judge.
15. In my judgment, therefore, the preliminary point has no substance in it and must fail.
16. But even if the Court had felt constrained to adopt the argument of the learned Vakil for Mohendra Lal Roy, his client would not have been benefited thereby.
17. In Rasik Lal Nag, In the matter of 38 Ind. Cas. 980 : 44 C. 639 at p. 647 : 24 C.L.J. 190 : 20 C.W.N. 1284 : 18 Cr.L.J. 420 it was held by the learned Judges as follows:
It cannot be disputed that this Court is competent to take action under Section 13, Clause (f), after such enquiry as it thinks fit. The section does not require that the enquiry should be conducted directly by the High Court; the enquiry may well be made by a Subordinate Court under the direction of the High Court. The only essential is, as pointed out by the Full Bench in Ganapathy Sastry, In re 3 Ind. Cas. 344 : 19 M.L.J. 504 : 6 M.L.T. 353 : 11 Cr.L.J. 274 (F.B.), that notice must be given to the Legal Practitioner concerned to show cause against suspension or dismissal, and the notice must formulate the charges, with great particularity and precision, so as to enable the practitioner to know the charges he is called upon to meet. That condition has been amply fulfilled in this case. There is, thus, no reason, why the enquiry by the Munsif, though not conducted under the orders of this Court, should not be adopted for the purpose of a proceeding under Section 13, 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.
18. In this case there was due notice, the charge was framed with particularity and precision, there was a full enquiry in which those concerned showed cause, and appeared by Counselor Pleaders, and this Court has the opinion, not only of the Additional District Magistrate but also of the Sessions Judge. Even if this Court considered that the preliminary objection should be sustained, there could be no possible reason for directing a further enquiry, and the Court would adopt the enquiry and reports already made.
19. As regards the merits of the case, it appears that the three Pleaders concerned in the report, Mohendra Lal Roy, Peari Mohan Ghose, Surendra Mohan Mukherjee and two other Pleaders, and Parbati Kumar Bose, Mukhtear, were representing the accused in the case hereinbefore mentioned, which was in the Court of the Deputy Magistrate. It appears from the judgment of Walmsley, J., in connection with a Rule, to which I will refer presently, that, on the 25th October 1921, the accused persons filed a petition in the Court of the Trying Magistrate intimating that for special reasons it was not proper that the case should be tried by him and that they intended to apply to the High Court for a transfer. The Trying Magistrate gave them six weeks' time to make the application to the High Court but no steps were taken. The case accordingly proceeded before the Deputy Magistrate and evidence was taken.
20. A charge was framed and the complainant was cross-examined for three days, 25th to 27th January 1922. The cross-examination lasted from 12 to 5 on the first two days and from 12 to about 2-30 on the third. On the 27th January 1922 the Deputy Magistrate disallowed certain questions. This in the exercise of his judicial discretion he was entitled to do, and, if he regarded the questions irrelevant, as the Deputy Magistrate said he did, he was bound to disallow them. After this decision the cross-examination of the complainant went on for sometime, it was then closed and the case was adjourned until the 4th February. On that day the Pleaders on both sides, and the other witnesses who still had to be cross-examined, were present.
21. The learned Pleader, Mohendra Lal Roy then presented and read a petition, Exhibit 4, on behalf of the accused.
22. The petition set out reasons, which were alleged to show that the above-mentioned questions were relevant, and should not have been disallowed: and the Deputy Magistrate was therein asked to re-consider the matter and allow the further cross-examination of the complainant in this respect.
23. The Pleader for the complainant was then heard upon this matter, and, after hearing the Pleader for the accused, the Deputy Magistrate made the following order:
I consider these questions to be irrelevant and I, therefore, refuse to allow further cross-examination on that point.
24. Thereupon, the Pleader for the accused, Mohendra Lal Roy, presented another petition which was already prepared, asking for adjournment of three weeks in order that an application might be made to the High Court for a transfer of the case from the file of the Deputy Magistrate to some other Court of competent jurisdiction. The petition alleged as the ground of the application 'that your petitioners now apprehend for reasons not necessary to disclose here that they cannot expect to have a fair and impartial trial in this Court'.
25. The Deputy Magistrate refused the application, making the following order: 'An adjournment under Section 526, Criminal Procedure Code, was allowed before, this petition which is filed again under Section 526, Criminal Procedure Code, at a late stage of the trial is rejected'. The Deputy Magistrate, no doubt, was referring in that order to the adjournment which had been previously granted in October 1921. He might have added, what was the fact, that no steps had been taken by the accused to apply to the High Court for a transfer of the case to another Court.
26. Then occurred the incident which is the basis of the proceedings under the Legal Practitioners Act.
27. The account given by the Deputy Magistrate is as follows: 'Then Babu Mohendra Lal Roy said that they would retire from the case, because they could not expect a fair and impartial trial in this Court. As far as I remember. I told them that I did not know what they would do, but their clients could not retire from the case. After this, Mohendra Babu addressed the accused persons in Bengali. He told them to sit quietly and not to cross-examine the witnesses, and added that they could not expect a fair and impartial trial from this Court. Saying this, they went away. As far as I remember, when they left, the Rai Bahadur said 'It seems that the Pleaders are non-co-operating with the Court'. After the Pleaders left I asked the accused if they would cross-examine the witnesses. They said, they could not, as their Pleaders had gone away. Neither Mohendra Babu nor any other of the Pleaders told me that they were retiring as the accused had previously agreed on their doing so. The Pleaders did not, before retiring, take the permission of the accused in Court, nor did the accused in my presence tell them to retire Mohendra Babu did not ask or receive my permission to retire. The statement that Mohendra Babu asked the accused whether they wished them to cross examine, to which the accused answered in the negative, is untrue.'
28. The explanation given by Mohendra Lal Roy is that, in consequence of the ruling given on the 27th January by the Deputy Magistrate disallowing the questions, a Consultation was held sometime before the date of the next hearing.'
29. Paragraphs 15 and 16 of the explanation are as follows:
That, in consequence of the attitude taken up by the learned Magistrate a consultation was held some time before the date for the next hearing amongst the defence Pleaders in which both the accused were present. After a most careful consideration of the matter the defence Pleaders, including your petitioner, were of opinion, that, with all respect to the Trying Magistrate, the points on which the cross-examination was not allowed were not only relevant but most material and essential and went to the very root of the defence and if cross-examination on these points was not allowed, it would seriously hamper the defence and in fact no proper defence of the accused would be possible and would amount to a virtual denial of the right of the accused to prove their defence and that it. would be useless for the Pleaders to further appear in the case as they would not be able to render any effective service to the accused.
That it was then decided in consultation with both the accused:
That on the next date of hearing, i.e., on 4th February 1922, a petition should be put in fully explaining the relevancy of the questions which had been disallowed and praying t at the complainant might be re-called for further cross-examination on these points and other relevant points.
That if the said petition be rejected then a petition for adjournment should be submitted tenable the accused to move the Hon'ble High Court, for the transfer of the case to some other Court as it was apprehended by the accused that they would not get a fair and impartial trial in that Court.
That if the latte petition, too, were rejected the accused would not defend themselves in the said Court and the services of their lowers would no longer be necessary for the purpose of the defence in the case in that Court and the accused would move the Hon'ble High Court for a transfer of the case whether an adjournment were granted for the purpose or not; your petitioner further submits that both the accused fully agreed to this.
30. The learned Pleader's account of what took place in Court, after the petition for adjournment was rejected on the 4th February, is contained in paragraphs 20, 21 and 22 of the explanation, which are as follows:
That thereupon your petitioners submitted to the Court that as, in their humble, opinion, the trial would, under the circumstances, be void and illegal and as the accused did not expect a fair and impartial trial in that case in that Court they thought they might retire to which the Court observed that they might retire but their clients could not.
That the petitioner and the lawyers for the defence, including your petitioner, who were present there at the time, were then about to retire from the Court when Babu Parbati Charan Bose, Mukhtear for the defence, suggested that, under the circumstances, the accused should be questioned as to whether they would stick to the course they had already decided upon.
That your petitioner told the accused in Bengali that as they (the accused) did not expect a fair and impartial trial in that Court and as, under the circumstances, no useful purpose could be served by cross-examining the other witnesses and your petitioner advised both accused not to cross-examine the remaining witnesses and asked them if they desired him to cross-examine them to which they answered in the negative.
31. The Additional District Magistrate came to the following conclusions:
Between these two accounts one has to accept one o the other and on that decision rests the answer to the question whether Babu Mohendra Lal Roy, as spokesman of the Pleaders, was engaged in the necessary and legitimate consultation with the accused or, under cover of remarks to the accused, unnecessarily impairing public confidence in the Court. After carefully weighing the two accounts, I cannot believe that the Magistrate and two Pleaders called for the proceedings are so completely wrong in their recollection as one must believe of accepting the truth of the opposite account. I find it the more difficult to believe this when the general circumstances already noticed are so far out of keeping with a bona fide consultation between the Pleaders and their clients.
My conclusion is that the words used by Babu Mohendra Lal Roy to his client did no amount to a bona fide consultation, but that cover was taken of an address to the client for a parting fling at the fairness of the Court. In making this second and quit gratuitous sally to impair confidence in the Court it seems to me that Babu Mohendra Lal Roy was guilty of grossly improper conduct as a Pleader, and that those who associated, themselves with him in retiring in these circumstances participated in the impropriety.
The conclusions I have come to on the four main issues stated are, then, that the Pleaders retired probably by previous arrangement with the leading accused on the Court giving a judicial ruling rejecting the application under Section 526 and that Babu Mohendra Lal Roy marked that retirement by words addressed first to the Court, and then to the accused accentuating the idea that this retirement took place as justice was not to be obtained in the Court.
32. Additional District Magistrate concluded:
In fact, the whole affair takes, in my opinion, the appearance of a forensic manoevre designed to accentuate the difficulties of the Court in the event of its rejecting the petition under Section 526, Criminal Procedure Code, and to make the most in the Court-room of the idea that justice was not to be had in this Court.
33. The learned Sessions Judge in giving his opinion said: 'If it be a fact that the Pleaders had previously arranged with their clients that they should retire from the case in the event of the Magistrate refusing their application for an adjournment under Section 526 of the Criminal Procedure Code, the moment chosen by them for the retirement and the manner in which it was effected showed great disrespect for the Court. They retired immediately after the Magistrate refused their application for an adjournment, and they effected it in such a manner that it amounted to a, demonstration against the order made by the Court in the exercise of its judicial discretion.'
34. In my judgment, there can be no doubt that the learned Pleaders had arranged with their clients that they should retire from the case in the event of the Deputy Magistrate refusing the two petitions above referred to. I am not, however, satisfied that it had been previously arranged among the Pleaders that their retirement should be marked by the statements in open Court making imputations against the fairness and impartiality of the Deputy Magistrate.
35. I am satisfied that the findings of the Additional District Magistrate and the learned Sessions Judge, as to what took place after the petition for adjournment was refused, are justified by the evidence that the learned Pleader Mohendra Lal Roy made two statements, the first addressed to the Deputy Magistrate and the second to the accused in such a way that they were heard by those in Court and that both such statements involved imputations upon the fairness and impartiality of the Deputy Magistrate.
36. In my judgment, both these statements were gratuitous and unjustifiable. These statements were not made in the course of argument or in support of the application for adjournment. The application for adjournment, so that the High Court could be moved, had been discussed and rejected. There was no reason why the learned Pleader should have done anything more than retire from the case, in accordance with the instructions of his clients, which he alleged he had already received, without making any imputation against the Court. The High Court could have been moved for an order of transfer. It is to be noted that on the 13th February 1922 an application for transfer of the case to some other competent Court was in fact made to the High Court on the ground that the accused reasonably apprehended that they would not get a fair and impartial trial before the Deputy Magistrate and a Rule was obtained. When, however the Rule was heard by the High Court it was discharged, and it must, therefore, be assumed, for the purpose of these proceedings, that there was no substantial reason, if any, for the alleged apprehension of the accused.
37. Similarly, there was no reason or necessity for the learned Reader to address the accused in such a way that all could hear and advise them that 'as they did not expect a fair and impartial trial in that Court' they should take a certain course.
38. The course which was to be taken, apparently, had been agreed beforehand, but even if it was necessary for the learned Pleader to communicate with his clients again upon the matter, that should have been done in the usual way and not by addressing the accused, from one side of the Court to the other, as described in the opinion of the learned Sessions Judge.
39. It is not necessary for me to deal with the evidence in detail. I agree with the Additional District Magistrate that the evidence of Purna Chandra Ghose, one of the accused, who was the first witness for the Pleader, was obviously unreliable, and as regards the evidence of the only other witness who gave evidence on behalf of the learned Pleader, it was stated by him that he had told no one what he knew about the case until he went into the witness-box and that he had no note of what occurred. The incident occurred on the 4th February and he was giving his evidence on the 10th March--two months after the event. It is quite possible to conclude that the witness had not remembered all that occurred, without making any reflection upon his veracity. The evidence, on the other hand, against the learned Pleader which has been adopted by the Additional District Magistrate, is confirmed by documents which came into, existence on or about the time of the incident I refer to the petition filed on behalf of Asatosh Das Gupta, the complainant, and the reports of the Deputy Magistrate dated 6th February and 7th February. I have no doubt that the petition of the complainant was drawn up on the 4th February 1922, the very day of the occurrence, though there is a dispute as to the date of filing. The Pleader who drafted the petition was called a,3 a witness, and proved that he attached his signature to it and made it over to Jadu Babu about 4-30 P.M. on the 4th February for the purpose of filing.
40. It was argued on behalf of the learned Header that nothing would have been heard pf this matter but for the action of the Additional District Magistrate in calling for a report from the Deputy Magistrate. In my judgment that is not correct. The Deputy Magistrate said in his evidence that 'on the 6th I went to see the District Magistrate on my own account to report the incident to him. My idea at that time was to report to the Additional District Magistrate what had happened. My intention at that time was to see what remedy could be taken and wanted to consult the District Magistrate about it. He asked to report to the Additional District Magistrate and on coming to my room to do so I found a note from the Additional District Magistrate enquiring about the incident as reported in the Dacca Herald.'
41. He further said that the Court was crowded when the incident took place and he considered himself much humiliated.
42. It is clear, therefore, from the above passage that the Deputy Magistrate went of his own accord to the District Magistrate to report the incident to him and to consult him as to what should be done, before he received the letter from the Additional District Magistrate enquiring about the incident.
43. In any event, the final determination in these cases rests with the High Court alone, as was pointed out by the learned Judges in Rasik Lal Nag, In the matter of (4) and even if the alleged misconduct had been brought to the notice of the High Court, without the intervention of the subordinate Court, this Court is competent and ought, in a proper case, to take the necessary action.
44. Having carefully considered the matter I regret that I am bound to come to the conclusion that the learned Pleader, Mohendra Lal Roy, gratuitously and unnecessarily made in open Court statements which contained imputations against the fairness and impartiality of the Deputy Magistrate imputations, which, as already mentioned, we must assume, for the purpose of this case, were without any foundation. Such statements, impugning the fairness and impartiality of a Judicial Tribunal would be, in any event, a grave matter, but when they emanate from a learned Pleader, such as Mohendra Lal Roy, occupying a leading position at the Bar. they assume a still more serious character and are calculated to have an effect, which is far reaching and detrimental to the due administration of justice.
45. During the argument reference was made by the learned Vakil appearing for the learned Pleader to the independence of the Bar.
46. I yield to none in my desire to see the independence of the Bar maintained. It is necessary, however, to note that, in the case before us, the Deputy Magistrate had in no way interfered with the independence of the Bar. He merely gave a judicial ruling as to the relevancy of certain questions, in consequence of which the Pleaders chose to take the action which has been referred to. 'Further, I am glad to think that the independence of the Bar has been in the past, and I hope will be in the future, maintained, without making gratuitous and unfounded imputations upon the fairness and impartiality of the Tribunals.
47. In my judgment the learned Pleader, Mohendra Lal Roy, in making such statements was guilty of grossly improper conduct in the discharge of his professional duty within the meaning of Section 13(b) and of such misconduct as would come within Section 13(f) of the Legal Practitioners Act.
48. As regards the case of the other Pleaders and the Mukhtear, there is no suggestion that any of them made any such statements as those to which I have referred.
49. By leaving the Court in company with their leader, Mohendra Lal Roy, after he had made the above-mentioned statements, they, in a case, associated themselves with his misconduct.
50. I am not satisfied, however, that the statements of Mohendra Lal Roy were made in pursuance of any previous arrangement with the other Pleaders or the Mukhtear, although, no doubt, it was arranged that they should retire from the case in the event of the petition for the adjournment being rejected.
51. It was also argued on their behalf that they may not at the time have realised the serious nature of the statements made by their leader Mohendra Lal Roy, and that they went out of Court with him merely because of the previous arrangement to take no further part in the case.
52. I am not prepared to hold that, from their conduct and by the sequence of events, they must be taken to have associated themselves with their leader's statements, and I am willing to accept the view of this case put before the Court by the learned Vakil who appeared for them, viz., that they may not have realised the nature of the statements made by Mohendra Lal Roy and the serious position which must naturally arise in consequence of such statements being made by a learned Pleader. I, therefore, come to the conclusion that this Court should not hold that the learned Pleaders, Peari Mohan Ghose, Surendra Mohan Mukherjee and Mukhtear Parbati Kumar Bose were guilty of such misconduct as is contemplated by Section 13 (b) and (f) of the Legal Practitioners Act.
53. We have carefully considered what course should be adopted in the case of the learned Pleader Mohendra Lal Roy.
54. The Deputy Magistrate said that he was on intimate terms with the learned Pleader and that out of Court he is an amiable gentleman.
55. He stated, however, that the learned Pleader was very impulsive, that he had recently insulted a Pleader in his Court but that he had apologized a few days after in open Court. It appears also that the learned Pleader is the Secretary of the Local Bar Association and, therefore, I assume that he enjoys the confidence of his brother Pleaders, and that he is a man of position at the Bar at Dacca. These considerations are in one sense in his favour.
56. On the other hand, the very fact that the learned Pleader occupies such a leading position, in my judgment, makes his misconduct all the more serious and inexcusable. Further, it is to be noted that there has been no sign of any apology or expression of regret for his conduct, although it must have been obvious to him, shortly after the incident of February 4th 1922, that what he had done inflicted humiliation on the Deputy Magistrate and was calculated to bring the administration of justice into disrepute.
57. It is to be remembered that Pleaders have a duty not only towards their clients but also towards the Court of which they are Pleaders, and it is part of their duty to co-operate with the Court in the orderly and pure administration of justice.
58. The learned Sessions Judge in his report referred to an occasion when the learned Pleader is alleged to have made an offensive remark with regard to a learned Subordinate Judge. We refer to this, only for the purpose of making it clear that we have not taken this matter into consideration and we have not been influenced by it in any way. We confine our judgment to the reports and evidence relating to the incident of February 4th, 1922.
59. We regard this case as a serious one, and we cannot help regretting that the learned Pleader has not seen fit to express his regret.
60. Under these circumstances, it is impossible, in our judgment, to dispose of the case merely by passing censure on the conduct of the learned. Pleader and we consider it our unpleasant duty to direct that the learned Pleader, Mohendra Lal Roy, be suspended for the period of one month.
61. Mohendra Lal Roy, therefore, is suspended for the period of one month from to-day.
62. There is really nothing for me to add to my lord's exhaustive judgment which I have had the opportunity of reading and with which I agree throughout. I desire, however, to associate myself especially with what my Lord has said as to the independence of the Bar. I wish that gentlemen belonging to the learned profession of the law would get it out of their heads that any one desires to curtail the privileges of the Bar or interfere with its independence. I take it that independence in this connection means freedom to do one's individual duty without fear of or favour to any man. The independence of the Bar is recognised as a valuable asset in the Civil life of the community and is, as I regard the matter, a corollary of that independence which appertains in the same sense to the Bench. I know of no quarter from which the independence of the Bar in that sense is in any way menaced, unless there be a hint of danger arising from associations formed by members of the Bar themselves. There may be a tendency on the part of such Associations unduly to restrict the liberty of individuals in matter not strictly pertaining to professional practice. But if there be such a danger, or such a tendency the members of the profession have the remedy in their own hands. Incidents will, of course, occur from time to time which had better not have occurred. After all, men are human, whether on the Bench or at the Bar, and in the heat of the moment or on the impulse of the moment expressions may be used on one side or the other which are not within the bounds of propriety. But in the great majority of such cases an apology or an expression of regret for over hastiness in speech, tendered and accepted in the right spirit would be sufficient to terminate the incident. Relations between the Bench and the Bar can be adjusted only on a basis of mutual anxiety that justice should be duly administered.
63. With these few observations, I concur in the judgment which has just been delivered.