1. This is a reference two Pleaders of the Bar, Babu Rajendra Kumar Dutta and Moulvi Abdul Khaleque.
2. The facts appear to be these:
There was a certain Title Suit No. 265 of the Local Sub-Judge's Court (Rani Hemanta Kumari Debi v. Sonaulla).
3. Rajendra Kumar Dutt was the Pleader on behalf of some of these defendants though it does not appear that he had received any vokalatnamah on behalf of Sonaulla. In the course of this suit a certain document was filed on behalf of the; defendants on the 6th July 1923 by Rajendra Kumar Dutta. The plaintiff challenged the genuineness of this document. Certain evidence was taken and on the 7th July Babu Rajendra Kumar Dutt the defendants Pleader retired from the case and the case was decided ex parte. On the same day the plaintiff moved the Court to prosecute Sonaulla for forgery. Notice was issued on Sonaulla and he appeared on 8th September 1922 and showed cause. Moulvi Abdul Khaleque appeared for him on this occasion.
4. The Court ordered a prosecution on 12th January 1924 and wrote the usual letter to the Magistrate on 18th January 1924. The same day the Magistrate issued process, What took place in the Magistrate's Court does not appear but on the 1st April 1924 Sonaulla preferred an appeal to the District Judge against the order for prosecution which was dismissed on 9th May 1924.
5. On the 26th May 1924 Sonaulla came to Babu Rajendra Kumar Dutt and instructed him to apply for the return of the documents filed in the original suit including the document which was the subject of the criminal charge. It is somewhat remarkable that this document was still on the record of the civil case. It ought to have been impounded but the probable explanation is that in view of the appeal to the District Judge against the order for prosecution it had come back once more to the original suit file. The usual application for a return of the document was filed and Babu Rajendra Kumar Dutt himself went to the record, room to get back the documents. Rajendra Babu himself signed a receipt for the documents on the back of the petition. He was then called away to attend to some other case and one Ali Hossain was told to instruct some other Pleader and he went and fetched M. Abdul Khaleque who took back the documents, signed receipt for them and made them over including the document the subject of the criminal case to Sonaulla.
6. What, therefore, the two Pleaders are charged with amounts to aiding and abetting Sonaulla in getting back this document so that he might defeat the criminal case while it was their duty to have brought to the notice of the District Judge that Sonaulla was attempting to do this.
7. Now it will be clear that what is alleged against these two Pleaders amounts to a charge, of aiding and abetting or conspiring to commit a criminal offence, viz., causing evidence to disappear with the intention of screening the offender, an offence punishable under Section 201, Indian Penal Code. Both the Pleaders have filed statement denying that they had any knowledge that the document in question was being taken back and have supported their explanation with affidavit.
8. In such a case it has been held that the correct procedure to be followed is that proceedings under the Legal Practitioners Act should not be taken but that if it is thought necessary to take action it should be by way of a criminal prosecution. The question has been dealt with in the case of In Re: Chandi Charan Mitter 57 Ind. Cas. 931 : 24 C.W.N. 755 : 31 C.L.J. 471 : 21 Cr.L.J. 691 : 47 C. 1115 and the judgment of Mookerjee, J., may be with advantage referred to where he deals with the numerous authorities on the point and points out that summary proceedings under the Legal Practitioners Act may result in grave injustice to the persons concerned. We do not think we should be justified in departing from the principles laid down in the case we have just referred to.
9. We think, therefore, that the order of reference should be discharged. It will be open to the authorities if they think fit to criminally prosecute the two Pleaders. On that point we express no opinion. It will, of course, be open to the Additional District Judge after any action that may be taken in the Criminal Court to take action under the Legal Practitioners Act if so advised.