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a Vs. r - Court Judgment

LegalCrystal Citation
Decided On
Case NumberD.C. APPEAL NO. 19 of 1993
Reported in1996(1)IBR152
Cases ReferredBalbir Singh vs. State of Punjab
[a. p. bhangale, j.] - indian penal code (ipc) - sections 302 read with 34 - punishment for murder - acts done by several persons in furtherance of common intention --applicant is brother of deceased anjali who has filed present revision application. heard learned counsel for applicant and learned counsel for respondents no. 2 to 6. learned counsel for the applicant contends that deceased anjali suffered cruelty at the hands of her inlaws which led to her death. learned counsel for the applicant took me through evidence on record and contended that the impugned judgment and order suffers from infirmity and the prosecution ought to have resulted into conviction of the accused. learned counsel for accused/respondents no. 2 to 6 has supported the impugned judgment and order and he contends..........batni, w/o. shri haru wrongly in pace of smt. churi d/o. late maddi at the time of attestation of general power of attorney executed by smt. churi, prito, vidya, daughters of late sri maddi and smt. akko, widow of sri maddi, all residents of village singpura bhagani, teh. paonta sahib, distt. sirmur, himachal pradesh before the-sub-registrar, paonta sahib. besides this, the other allegations against the appellant are that he was habitual in disclosing the privileged communications/secrets of his clients to the. opposite parties for his personal benefits and further that the appellant had "been taking up briefs by misusing the names of presiding officers. there is also an allegation in the complaint that the appellant had been dealing in sale and purchase of landed property as a,.....

This appeal is directed against the order dated 2nd April, 1993 passed by the Disciplinary 'Committee of the Bar council of Himachal Pradesh in Case No.4/1991 suspending the licence of the appellant-advocate for a period of three months. The Committee heard this appeal on 26-5-1995 at Shimla. Since Sri. Jamshed Pardiwala the third member could not be. present on that date, therefore this appeal has been now fixed today for deliberations amongst all the three members.-All the three members are present today and we have held' deliberations amongst, ourselves after perusing the entire original records and have considered the respective contentions of the parties. From our deliberations the following points emerge for determination in this appeal.

Point No. 1:    Whether the order under appeal is liable to be set aside?

Point No. 2:    Final order.

Findings on the above points:

Point No. 1:    Yes

Point No. 2 :   Appeal accepted. Reasons for findings:

Appellant-advocate has been held guilty vide impugned order dated 2-4-1993 passed by the Disciplinary Committee of the Bar Council of Himachal Pradesh and his licence to practice as an Advocate has been suspended for a period of three months. The^ allegations against the appellant as; contained in the complaint filed by Smt. "R" are that on 19-3-1993 Sri "A" Appellant identified Smt. Batni, W/o. Shri Haru wrongly in pace of Smt. Churi D/o. Late Maddi at the time of attestation of General Power of Attorney executed by Smt. Churi, Prito, Vidya, daughters of late Sri Maddi and Smt. Akko, widow of Sri Maddi, all residents of Village Singpura Bhagani, Teh. Paonta Sahib, Distt. Sirmur, Himachal Pradesh before the-Sub-Registrar, Paonta Sahib. Besides this, the other allegations against the appellant are that he was habitual in disclosing the privileged communications/secrets of his clients to the. opposite parties for his personal benefits and further that the appellant had "been taking up briefs by misusing the names of presiding officers. There is also an allegation in the complaint that the appellant had been dealing in sale and purchase of landed property as a, commission agent. - In his reply before the Disciplinary Committee of the State Bar Council, the accused Advocate has denied all the allegations but has admitted that he had identified some of the ladies at the time of attestation, of the General Power of Attorney, copy of which is Exbt.. P-2 in the original records. It is contended by the delinquent Advocate in his aforesaid reply that he acted-in good faith at the instance of one Niranjan Singh as a document writer at Paonta Sahib who executed the said General Power of Attorney on behalf of the executants. The learned disciplinary. Committee of the State Bar Council has said nothing about the other allegations in the complaint except the allegation of wrong identification of Smt. Batni as Smt. Churi and the members of the D.C. below have held-the Appellant guilty of professional misconduct on this count alone. As observed earlier we have thoroughly perused the entire documentary evidence on record. The General Power of Attorney is executed by four ladies, the three i.e., Prito, Vidya and their mother Akko were present at the time of execution and attestation of the document. The allegation is that in place of Churi Smt. Batni was made to be present and participated in the act of execution and she along with other ladies appeared before \ the Sub-Registrar and the document was attested and registered and all these ladies are shown to have been identified by Sri."A" Vakil, 'Paonta Sahib and the document hasten signed by Sri."A" as identifier and he has very rightly" admitted this fact of identification. Now the simple question for decision remains whether Sri.A" Appellant signed the aforesaid General Power of Attorney in good faith acting on the persuasion of Sri. Niranjan Singh, document writer or he did it with any malafide intention in order to cause wrongful loss to somebody. It is admitted case of the parties that there is no doubt about the identify of three other ladies. The Power of Attorney was also not acted upon not used to the prejudice of Sr. Churi. Smt. Churi applied for cancellation of the Power of Attorney and for taking appropriate action against Sri Niranjan Singh, document Writer. Even Sri. Jagdish Prasad, Holder of Power of Attorney of Smt. "R" has admitted this fact in his testimony before the D.C. below. He has also admitted in his statement that the appellant was counsel for Sri. Khusi Ram in a suit filed by the Complainant against said Khusi Ram and the same was. decided on 8-6-90 by Sub-Judge, 1st Class, Paonta Sahib, copies of the Judgment and decree sheet are Exbt.R-1. and R-2. The complainant also made number of serious allegations against the appellant which later on were not pressed, possibly there was no evidence to prove the same. Appreciating or weighing entire matter in this background, we have no hesitation to accept the explanation of the appellant that he identified Smt, Batni as Smt. Churi in good faith on the persuasion of Sri. Niranja'n Singh, Document Writer. An advocate cannot be held guilty, and punished for his bonafide action even if they are wrong. It is pertinent to, observe that in District and Mofussil courts, an Advocate has to perform variegated functions, as he is in direct contact with the public there, and sometimes he can become victim of manipulations without being guilty in any way. The cases of professional misconduct have to be tried like the cases of criminal offences. The guilty intent of the delinquent Advocate has to be proved and -the charge has also to be proved beyond reasonable shadow of doubt. In this case we are of the view that the mens rea is absent on the part of the delinquent Advocate and there is no reason to disbelieve that "the acted in good faith. Our view is supported by the Punjab & Haryana High court in Balbir Singh vs. State of Punjab reported in 1995 Chandigarh Law Reporter page 167. In this case before the Punjab High Court the advocate was facing criminal prosecution for wrongly identifying an executant of a document.. However the Punjab High Court quashed the criminal prosecution on the ground of bonafide and unintentional act of the Advocate. In another judgment reported in AIR 1940 Allahabad, page 289, it has been held that negligence on the part of Advocate does not amount to- professional misconduct. In view of this discussion we hold the appellant not guilty of any professional misconduct. Consequently the appeal is allowed and the impugned order dated 2-4-1993 is set aside. No order as to costs. Copies of this Judgment be sent to the parties.

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