MANAK LAL v. DR. PREM CHAND

GAJENDRAGADKAR J.-The appellant Sri Manak Lal was an advocate practising at Sojat. A complaint was filed against him under s. 13 of the Legal Practitioners /I.ct by Dr. Prem Chand Singhvi. It was alleged that the appellant was guilty of professional misconduct that suitable action be and the complainant requested Since the appellant taken against him was not a pledder OI a mukhtear but an advocate of the High Court of Rajasthan, the complaint was sent the Chief for enquiry to the Justice of the High Court of Rajasthan under s. 10(2) tribunal nominated by in that behalf. S.C.R. SUPREME COURT REPORTS 577 of the Bar Councils Act. The tribunal held an enquiry, recorded evidence aml came to the unanimous conclu sion that the appellant-"was guilty of professional mis conduct in having got a false stay order written by the clerk by improper means and thereby he managed take an illegal and undue advantage for his clients and therefore deserves to be punished for the same.

" When this report was received by the High Court, the matter In the result the High was argued before the Court. the findings made by the tribunal Court agreed with and directed remO\'ed the appellant >hould be this order that by Special It is against from practice. Leave the appellant has come to this Court. 1957 .l.41 MOiia! v. Dr. Pr1m Chond GaJ1ndra,(adkar ], likely The facts giving rise that proceedings under s. 145 of to the complaint against the ft appears that there was a appellant are very few. dispute concerning Jhalra well and certain agricultural plots surrounding the well between Pukhraj and others on the one bane! and Dr. Prem Chand and others on the other. These parties were described proceedings as Party No. 1 and Party No. 2 respect ively. The appellant was the counsel for Party No. 1. As a result of this dispute the police presented a report the Sub-Divisional Magistrate. Sojat, the court of that the dispute was to cause breach of peace and suggested Code of Criminal Procedure should be taken.

The Sub Division:t! Magistrate drew out a preliminary order on July 5, 1951 (Ex. A-1 ). Bv this order both the parties were called upon to put in their written statements as to possession of the property in regards their claims dispute. The learned :\fagistrate also passed an order attaching the property in dispute pemjing the decision of the proceedings umler s. 145. This was followed bv another order passed on August 9, 1951, that the crojl which was on the field shoukl be auctioned, its price deposited in court and the land itself should be given for It cultivation appears that the hearing of the case was fixed for August 21, 1951. Members of Party No. 1 were aggrieved their behalf the appellant these orders in preferred a revision application against the court of the Sessions Judge, Pali, on August 13, the: highest bidder for the next year. these orders and on 1957 Manak Lal v. Dr, Prnn Chand Gajmdragadkar J. 578 SUPREME COURT REPORTS [1957] \Yhcn to furnish the applicants that stage. On these allegations in question belonged they were dispossessed from

1951. The appellant presented another petition before In this the learned Sessions Judge on August 29, 1951. 11etition it was alleged rhe crop which the cultivators on the fields described as Party No. 1, that the crop was getting the cultivators would be consiclcrably spoiled and prejuclicecl if their bnds the application prayed that an order should be passed not to auction the crop as well as the right of future culti\·ation and that liberty should be given to the cultivators to ~o to the crop pending the final the well and to look after disposal of their revision application before the learned Sessions Judge. The learned Sessions judge was not to grant c.r parte interim stay and apparently inclined '° on the same Jay he directed that notice of the revi siot1 application should be given to the other party and called upon talba11a ancl a copy of the application. The case then stoo,\ adjourned for hearing on September 6, 1951.

On September 6, 1951, learned the case w.!S called out before the learnccl Sessions Judge, the appellant was present. The ·sessions Judge found that the appellant had not sub mitted a copy of his application as already directed but that the appellant was submitting a copy he was on the same day. That is why the leJrned Judge ordered that notice should be issued after the said copy was tiled. The hearing of the case was then adjourned to September 12, 1951. So far there is no dispute about the facts. There is, however, a serious dispute as the complainant. happened on September 6, 1951. The complainant's case is that, after the hearing of the case was adjourned to September 12, 1951, and notice of the application was ordered to be issued to Party No. 2, the appellant prevailed upon Shri Maghraj, clerk of the Sessions Judge's Court to prepare an actual stay order, that the said stay order was accordingly prepared and was got signed by the Reader of the Court.

Then the Jppel lant obtained the stay order from Shri Sheolal despatch clerk to who in it was entrusted by the Reader. Armed with th.is order the appellant personally e\'ents which. according 1957 Ma11ak Lal v, Dr. P"m Chand Gajendragadkar ]. S.C.R. SUPREME COURT REPORTS 579 the order to the SulvDivisional. Magistr'!te and present ed it to him the next day. In due course the revision application was taken up for hearing on September 12, 1951. Since no notice had been served on Party No. 2 to September 22, the hearing was again adjourned 1951. that on September 22, It is co:-nmon ground 1951, it was disi:overed that a fraudulent stay order had been issued from the office of the learned Sessions Judge's Court. The learned Sessions Judge then called for explanation from Shri Maghrai and directed Sub-Divisional Magistrate to treat letter of Septem ber 6, 1951, containing the alleged order of stay as cancelled. that as a result of the enquiry held by the learned Sessions Judge, he found that Shri Maghraj had committed a grave mistake and held that it would be enough if Shri Maghraj was fined Rs.

11/ and , administered a severe warning to behave properly in future. The complaint against the appellant is that the appellant took_ an active part in the commission of the fraud and was thus guilty of fraudulent and grossly improper conduct in the discharge of his professional duty. A false orde1· had been obtained by him by un~ fair means and so he was guilty of professional mis conduct. That appellant. the case against It- appears substance that he the envelope learned Sessions indicated, many of As we have already is not denied bv him the facts the appellant are not alleged in the complaint against that he was present in dispute. The appellant admits before Judge on September 6, 1951. It the despatch clerk addressed envelope frotn Sub-Divisional Magistrate, Sojat, and that he the next day in the office of handed over the Sub-Divisional Magistrate. His case, however, that he never approached Shri Maghraj in this matter and that he;. was not in any way instrumental in get In appellant, he did not know the contents of the envelope that he knew that a false order of stay had been issued by the office of led by both the parties.

The tribunal, evidence was the Sessions Judge by mistake. Before it was only on September 22, 1951, the draft prepared. fact, according 1 957 Manak Lal v. Dr. Prm1 Chand GaJtndragadkar ]. 580 SUPREME COURT REPORTS [ 19571 accepted complainant Dr. Prem Chand himself gave evidence and on his behalf Shri Maghraj and Shri Shcolal were examined. The appellant Manak Lal gal"e evidence on his behalf. Both the members of the tribunal and the High Court of Rajasthan the learned Judges of complainant's the whole, have, version, rejected the pleas raised by the appellant and is guilty or gross profes have held. that the appellant sional misconduct. merits, is challenged before us by Shri C. K. Daphtary the appellant. Shri Daphtary has also on behalf of in support of his argument raised that the order passed against · the appellant mmt he It will he convenient to deal with these set aside. points first. finding which, on two points of law It is taken before appellant was report are all to enquire into constituted tribunal, improperly Shri Daphtary contends that the tribunal appointed learned Chief Justice of the High Cour: of the alleged misconduc: of Rajasthan proceedings report made by it and the subsequent order passed by invalid.

High Court pursuant tribunal consisted This point arises in this way. The its Chair of three members with Shri Chhangani as It is common ground that Shri Chhangani had man. filed his vakalat on behalf of Dr. Prem Chan,l proceedings under s. 145 of the Code of Criminal Procedure on August 23, 1952, and had in fact argued the case on that date. Shri Daphtary contends since Shri Chhangani had appeared in the criminal proceedings the opponent he was dis in question for qualified from acting as a member of the tribunal and this disqualification introduces a fatal infirmity constitution of that every member of a tribunal that is called upon to try issues judicial or quasi-judicial proceedings must be :1ble judicial to act judicially; and it is of judges decisions judicial to act should be ;md In such cases the test is not whether without any bias. in fact a bias has affected administration impartially, objectively the essence of It is well settled this argument. itself.

There judgment; tribunal 1957 Mand Lal v. Dr. Prim ChQnC Gaje11Jraindkar J. • f S.C.R. SUPREME COURT REPORTS 581 i11 It that a bias ]w; observed litigant attributable to members constituting is and must be whether a alwavs to a reaso.nably apprehend the tribunal might have operated against member of It is in this him in the final decision of the tribunal. sense that it is often said tbat justice must not only he done hut must also appear to be <lone. As Viscount Cave L. C. in Frame United Breweries Cu. v. Bath Justices(') "this rule has been asserted not only the case of Courts of Justices ond other judicial tribunals hut in the case of authorities which, though in i1U >rnse to he called Courts, haYe to act as In dealing with c:ises judges of the rights of others". of bias attributed tribunals, it is necessary to make a distinction between pecuniary is obvious attributed. interest and prejudice that pecuniary interest, however small in a <ubject-matter of the proceedings, would wholly dis qualify a member from a.cting a1 a judge.

But where is not :ittributell but instead a bias pecuniary interest i~ suggested, it often becomes necessary to consider whether there is a reasonable ground for assuming the possibility of J bias and whether it is likely to produce large a reasonable doubt about the fairness of the administra It WJuld always be a question of fact tion of justice. to be ''The principle", says in each case. decided Halshury, "nemo debet esse judex in causa propria rna in the subject precludes a there- matter of in" ( 2 f11 our opinion, there is and can be no doubt about the validitv of this principle and we are prepared to assume to all the justices tribun:ils and bodies which are given jurisdiction to determine judicially the rights of parties. as mentioned by Halsbury but the minJs of the litigant or the public at J dispute, from acting as a this principle applies justice, who it may be not only interested justice ). l n support of his argument, Shri Daphtary referred the decision in Rex v.

Sussex fustices, Ex parte tlJ MrCarthy( 1 the Court was dealing with a case arising out of a collision between a motor this case, In ). (1) [1926] A. C. 586. 590. (,) Halshury's Law• of Engl«n<I, Vol. XXI, p. ::,35, para 932. ( :J) [ 1924] I K. ll. ,;,Ii. 1957 Manak Lal v. Dr. Prtm Chand Gajtndragadkar J. 582 SUPREME COURT REPORTS [1957) ·~ • .':-...{ justices recorded the summons the merits of evidence was injuries received they deliberated about the improper conduct of the conviction was quashed. vehicle belonging to the applicant and one belonging ~. the acting to W. At the hearing of clerk to the the firm of justices was a member of solicitors who were acting for W in a claim for dama- in the ges against the applicant for collision. After justices retired to consider their decision and the act- ing clerk also• retired with them in case they should desire to be advised on any point of law. The appli- cant was convicted in the case.

This conviction was challenged by the applicant on the gwund that it was vitiated by allowing the acting clerk to be associated with them the case. An affidavit was filed on behalf of the justices that they reached their decision without consulting the acting clerk and that the acting clerk had in fact abstained from referring to the case. This affidavit was accepted as true by all the learned judges who heard the case "The question and yet is", observed Lord Hewart C.J. "whether the acting clerk was so related to the case in its civil aspect as to be unfit to act as a clerk to the justices in the criminal matter" and the learned judge added that "the answer that question depends not upon what exactly was done but upon what might appear to be done. Nothing that there has been an improper interference in the course of justice. " Lush J. who agreed with Lord Hewart C.J. likewise accepted the affidavit made on behalf of the justices but observed, "that they have placed them- selves in an impossible position by allowing the clerk in those circumstances consultation room.

" The same principle was enunciat- ed with equal emphasis in Rex v. Essex fustices, Ex ). This was a dispute between a hus- parte Perkins( 1 band and his wife and it appeared that the wife had consulted their office about the solicitor's clerk from her the preparation of a deed of separation husband and the lawyer acted in the matter for a time after which she ceased to consuH him. No mention of to be done which creates even a suspicion to retire with them into ;>---. )..-., (1) [1927] 2 K.B. 475. 1~57 Manak Lal v. Dr. Prem Clianct Gajindr•gadkar J. S.C.R. SUPREME COURT REPORTS 583 though the matter was made to the solicitor himself except one very short reference to it in a weekly report from his clerk. Subsequently the solicitor acted as a clerk to the justices who tried the case. He stated in his affidavit that, when acting as a clerk justices on the occasion in question, he had no knowledge that his firm had acted for the wife amt that he was in no way :idverse to the husband.

It was urged that the decision of the justices should be set aside . as the justices were not properly constituted and it appears also to have been suggested that the decision might, perhaps, have been influenced by a prejudice indirectly and to a very small extent. Rejecting the argument the decision of the justices had been influenw.l even impropriety alleged, Avary J. stated remotely by that "though the clerk to the justices and the justices did not know that his firm had acted for the applicant's wife, the necessary, or at least the reasonable, impres ,ion, on the mind of the applicant would be that justice was not done seeing that the solicitor for his wife was acting with the justices and advising them on the hear ing of the summons which she had taken against him. " It has, however, been urged before us by Shri Umrigar, on behalf of the Advocate-General, that this principle should not be applied the proceedings before tribunal appointed under the Bar Councils Act.

He contends that the tribunal is not empowered to pass final orders on the enquiry and that the report made by the tribunal is, in every case, to be submitted to the High Court for the final decision of the High If Court. We are not impressed with this argument. it is true that in judicial or quasi-judicial proceedings justice must not only be done but must appear to be done to the litigating public, it is equally true that when a lawyer is charged for professional misconduct and is given the privilege of being tried by a tribunal of the Bar Council, the enquiry before the tribunal must leave no room for a reasonable apprehension in #le mind of the lawyer that the tribunal may have been even indirectly influenced by any bias in the mind of any of the members of the tribunal. In the present that when case, we have no hesitation in assuming 1957 Maria*. Lal v. Dr. Prem Chand Gajtndragadkilr ]. 584 SUPREME COURT REPORTS [19171 It is, that, against in the case to work as Shri Chhangani agreed the Chairman of the tribunal, he did not remember that he had app.:ar the criminal appellant's clients proceedings under s.

145, We are told that Shri Chhrn is a senior member of the Bar and was once Adl'ocatc·Gcneral of the High Court of Rajastlun. the case at all sta;:es Besides he had not appeared but had appeared onlv once as a senior counsel argue the matter. therefore. not at all unlikely that Shri Chhangani had no personal contact with the client Dr. Prem Chand and mav not have been aware from which the present of the f•.>r proceedings arose, he had appeared at any to J,oJd Dr. Prem Chand. We arc, however, inclined that this fact does not in anv wav affect argument urged before us by Shri Daphtary. It is 11ot that Shri Chhangani actmlly Shri Daphtary's case had a bias against the final report made against bias was responsible for Indeed for Shri If Shri such an argument. advance Daphtary Chhangani was disqualified from working as a member of the the fact that he , had appeared for Dr. Prem Chand in the criminal proceed ings under s.

145 it would not be in question, then necessary for Shri Daphtary to prove that any prejuclice that Shri Chhangani improperly influenced the linal decision of the tribunal. such cases may make Actual proof of prejudice in the appellant's case stronger but such proof is not that the appellant should effectivelv necessary tribunal was not properly that the constituted. in order the argument fact had been caused or the appellant and ts unnecesson· tribunal by reason of appellant. that the the cl1allenge actually proved however, contended Shri Umrigar, that unless prejudice tribunal cannot he validity of the constitution of the the decision upheld and he sought to rely upon Rex v, Williams, Ex parte Phillips(') in support of this this case the court was dealing with In contention. for' a writ of certiorari. A baker had an application been charged under .s. 4 of Bread Act of 18.36. It was (•) [•aqJ 1 K.n.

608. -· ' S.C.R. SUPREME COURT REPORTS 585 In fact that one of the substantially on J., who delivered the Court, observed the Court. The decision of the principal that "when objection alleged than by .that he had sold bread otherwise weight and was liable to be convicted under s. 15 of the Ji.ct. he was so convicted. Thereupon he obtained a 'rule nisi for a writ of certiorari to quash the conviction on the ground justices the business of a baker. was a person concerned Section 15 disqualified persons concerned in the business of a baker to act as a justice trial of such for a writ was ultimate! y cases. This application the Court, rejected by two grounds. however, was based judgment Channel to• a taken mere! y by a member of the public comiction is and not by a party more particularly aggrieved granting of a certiorari is discretionary. Where objection is by a party aggrieved, then, as a rule, a issued ex debito justitiae.

This position, how ever, is subject to the exception that a party aggrieved may by his conduct preclude himself from taking inferior Court. " jurisdiction of an objection But it is significant that the second ground on which the ' judgment proceeded justice whose presence at the hearing was challenged the petitioner did not under s. 15 of the mischief of s: 15 apparently appear to fall within of the Act at all. "I do not say", observed Channel J., to make "whether the facts shown would be enough him a person following or concerned in the business· of a baker within the meaning of s. 15'.'. This conclusion was accepted by It two other would thus appear that the decision in this case does not justify Shri Umrigar's contention that, even if the constitution of the tribunal is held to be defective or improper, tribunal in pursuance of the orders subsequently passed report cannot be successfully challenged unless is shown that the defective constitution of the tribunal had in fact led to the prejudice of the appellant.

We would1 therefore, hold when__ he contends that the constitution of the tribunal appointed by the Chief Ju•tic~ of the High Court ot that Shri Daphtary the proceedings taken before the Act by indicates learned judges. clearly 1957 Manak Lal v. Dr. Prem Chani Gaj1ndragadkar J .. • i957 Mano.k Lc.l Dr. Prem Chand Gajendra,t;o.dko.r ]. • 586 SUPREME COURT REPORTS (1957] Rajasthan suffered from a serious Shri Chhangani, who had appeared for Dr. Preen Chand in the criminal proceedings in question, was appointed a member of Chairman. tribunal and in fact acted as infirmity It the party that waiver it was open the appellant The next question which falls to be considered is whether object; on for the first time before the High Court. In other words, has he or has he not waived his objection tlie presence of Shri Chhangani in the tribunal' Shri Daphtary does not seriously contest the position that the objection could ha\•e been effectively waived.

The alleged bias in a member of the tribunal does not render the proceedings invalid if it is shown that the objection against the presence of the member in ques tion had not been taken by the party even though the to the party knew about the circumstances giving rise the alleged bias and was aware of allegations about his right to challenge the presence of the member cannot always the tribunal. and in every case be inferred merely from the failure to take. the objection. Waiver can be inferred only if ace! after it is shown that the party relevant facts and was aware of his knew about right to nke the objection in question. As Sir John Romilly M. R. has observed in Vyvyan v. Vyvyan( 1 ) "waiver or election, presupposes is fully cognizant of his that the pcrrnn to be houncl rights, and, that being ~o, he neglects to enforce them, or chooses one benefit instead of another, either, bur If, in the present not both, of which he might claim". case, it appears the facts that the appellant knew all the alleged disability of Shri Chhangani and was also aware that he could effectively learned Chief Justice to nominate some other member instead of Shri Chhangani and yet did not adopt that course, a chance tribunal and when he came to know that the report had gone against him he thought bettrr .of his rights and the High 01urt for the first raised this point before that he deliberately in his favour it may well be to obtain a report acquiescence, reque,.t (1) [1861] 30 Beav.

65, 74; :,4 E. R 813 1 81j. S.C.R: -·f-. · time. SUPREME COURT REPORTS 587 In other words, though the point of law raised . the by Shri Daphtary against tribunal be sound, it is still necessary for us to consider whether the appellant was precluded from raising this point before the High Court by waiver or acquiescence. the competence of 1957 v. Dr:· Pi1m · Chand· Gajendrag. Jkar Jo· 'r personal interest .the appellant before It may be conceded that the allegations about From the record it is clear that the appellant never tribunal and the manner raised this point before the in which this point was raised by him even before the High Court is somewhat significant. The first ground of objection filed by the appellant against the tribunal's that Shri Chhangani had pecuniary and report was complainant, Dr. Prem Chand. The learned fudges of the High Court have the pecuniary interest in the present proceedings are of Shri Chhangani wholly· unfounded and finding has not been challenged before us by Shri Daphtary.

The learned Judges of the High Court have also found that the objection was raised by only to obtain an order fo1 a fresh enquiry and thus gain time. favour of Shri Daphtary that the judgment of the High Court does ground of· waiver that no doubt appears to be their conclusion. We have, however, heard Shri Daphtary's case on the question of waiver and we have no hesitation in reaching the conclusion the appellant waived his objection deliberately and cannot now be allowed to raise it. Shri the material time Dapbtary does not contend that at the appellant did not remember that, . Shri Chhangani had appeared for Dr. Prem Chand in the Indeed suth a plea cannot be criminal proceedings. raised by the appellant in view of the affidavit which the appellant sought to place before us in the present appeal. Under this affidavit, the appellant's case appears to be that until be· met his advocate Shri Murli Manohar for to the report · of filing objections appellant did not know \\'.~~\\~ di~(lu~\\fl.e.li from acting as a member · of tribunal. .. h is obvious implies that the appellant knew:; about that this ground necessarily the facts giving find against though the ' appellant on the· tribunal, substance of that · Shri Chhangani was · 1957 Monak Lal v.

Dr. Prnn Chand Goj1ndragadkar J. 588 SL'PREME COURT REPORTS [1957] is a junior at thotigh tribunal. In substance, the appellant knew me to the alleged disqualification of Sliri Chhangani to act as a member of contention Shri Chhangani had appeared for Dr. Prem Chand in tbe criminal proceedings in question, he \V:ls not a~·are in consequence. Shri Chhangani was disqualified that, to act as a member of the tribunol. It is this limited aspect of the matter which is pressed before us by Shri Daphtary. Shri Daphtary contends and no Joubt rigl1tly that if we are satisfied that the appellant did not know about the true legal position in this matter and his rights arising therefrom, his failure to challenge the appointment of Shri Chhangani on tribunal would not raise an effective plea of waiver. However, is very difficult in our opinion, to accept Shri that his client did not know the Daphtary's argument trne legal position or his rights until he met Shri Murli Manohar.

No doubt the appellant Bar but e\'en so he.: can cla.in1 ten years' standing at the Bar. Resides, he had the assistance of a lawyer in defending him that neither the appears extremely difficult appellant nor his the presence of tribunal could be effectively Shri Chhangani challenged by think that even a layman, not famibr with technicalities this doctrine of· and equitable principles on which disability has been based, would have immediately lawyer who had appeared for that the apprehended judgment Dr. Prem Chand was authorised that might cause embarassmcnt to the appellant and might to prejudice against him. From a purely common sense point of view of a layman, the position was patently awkward, and so, the argument that the appellant was not conscious of his legal rights in this matter appears to us to be an afterthought. Since the appellant was to adopt driven this point for the first High Court in seeking to raise time at that stage, we are not surprised that the High Court took the view that the plea had been taken late in order to gain time and to secure a fresh enquiry in this untenable position before the present proceedings and them.

We are disposed to assume the appellant and the conduct of lawyer knew to sit 1957 Manak Lal v. Dr. Prem Chan-t C::;t- Gqfr:ndragadkar J~ S.C.R. SUPREME COURT REPORTS 589 the matter. Since we have no doubt that the appellant knew the material facts and must be deemed to have i11attcr, 11is bcc11 conscious .of his legal rig·hts failure to take the present plea at the earlier stage of the proceedings creates an effective bar of waiver against· him. It seems clear that the appellant wanted report from to take a chance to secure a favourable the tribunal which was constituted and when he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point. the absence of Then Shri Daphtary sought to challenge the main conclusion of the High Court that the appellant was guilty of professional misconduct on a preliminary ground. He contended that the High Court judgment that the iearnd Judges had considered some inadmissible evidence the appellant and without giving him an opportunity to be heard on the said evi<len:e and that had introduced an infirmity in the judgment which vitiated their final conclusions.

It appears from the judgment of the High Court that the learned Judges sent for and looked into the record in the Court of of .Revision Application No. 31 of 195! the Sessions Judge, Pali, and the record of Case No. 134 of 1951 in the Court of the Sub-Divisional Magis trate, So)at. Shri Daphtary has made pointed reference to the fact that the record in Case No. 134 of 1951 was sent for hv the High Court after this matter had been acgucd before the learned Judges of the High Court had taken into documents which were consideration material the time the case was argued before before them at them, we would considered Shri Daphtary's grievance more seriously. We are, however, not satisfied that the grievance made by Shri Daphtary against this alleged irregularity is really justified. The High Court judgment shows that the ·appellant argued before the High Court that he could not have been concerned with the fabrication of the false order because his subsequent conduct showed that he was not at all interested said order was imple In fact, this argument has been characterised mented. in · seeing that the If we had been certainly have satisfied them.

8-78 S. C. Indio/59 • I95i MOMk Lal v. Dr. Prem Chand 590 SUPREME COURT REPORTS [ 1957] It was by the High Court as plausible but not sound. this argument which provoked other side that in fact the fabricated order had been implemented and in support of this reply reference was made to the application made by Dr. Prem Chand and his men in which it had been specifically alleged that the appeibnt's clients had taken possession of the crops and that they haci aiso removed them. This applica tion had been made on September 24, 1951, and requested . the Sub-Divisional Magistrate to prevent appellant's clients from taking illegal possession of the two rival land and removing the crops. the High contentions which learned that it Cowt ,had to examine. The themselves respondent before the High Court in the course of the argument the High Court subse had in fact been made quently called for and examined the relevant records.

It may be that in the earlier part of the judgment the learned they had looked at the records of both the cases; but it is clear from the reasons given by the learned Judges two cases that the perusal of the records in the said the High had played no part in the final decision of Court. We are, satisfied procedure adopted by the High Court in dealing with irregularity as a this matter suffers from any result of which their final orders should be set aside and a fresh hearing of the matter should be ordered. It is Judges of judgment shows to satisfy substantially with a view the application stated somewhat generally therefore, not Judges have referred serious to by the question of the merits of Then remains finding recorded by the High Court. Shri Daphtary himself was aware that this part of his case is bound to be weak in an appeal which has been admitted on. Special Leave under Art. 136 of the Constitution.

Both the tribunal and the High Court have made concurrent findings of fact against the appellant and it is difficult to accept the argument that this finding of fact should be re-examined on the present appeal. We may, however, incidentally point out that there are some salient features of the case which the High the view unequivocally support the merits by us taken by • '95i lAl Manak v. Dr. P em Chand •-. Ga1mdragadkar J. S.C.R. SUPREME COURT REPORTS 591 It courts induced taken by practising in the court, the appellant. It may ·be that, subordin~te inconceivable . that officers of is common ground Court against that the appellant's clients were not present before the Sessions Judge on September 6, 1951. It is admitted that the appellant was present and that he to?~ . the the Sub-D1V1s10nal envelope containing the order the State of Jodl'.pur, Magistrate. lawyers some~11:1es assisted the court officers by takmg packets contammg judicial orders from one court to another; but, if the appellant's clients were not present it is difficult to understand how the fabricated order came to be prepared without instigation by the appellant.

It · is the court would suo motu think of fabricating the order. The order was intended to benefit the appellant's clients and, on whole, it is an irresistible inference the appellant must have corrupted the officers of the court by the offer of illegal consideration and fabricate the order. Shri Daphtary attempted on the view learned Sessions Judge in the enquiry which he held soon after he learnt about \V c are free to confess the is, ue of this fabricated order. that \Ve are not at all satisfied with this enquiry and its final decision. However, we arc really not concernell to consider the merits of this enquiry and we cannot attach any importance to an argument based on this · enquiry. The High Court has taken the view, and we that the conduct of Shri Loya should think rightly, also be examined as that both Shri interested in persuading Loya and Shri Maghraj were the Sessions that the fabrica tion of the order was due to a mistake committed by Shri Maghraj.

The theory of a mistake committed bv Shri Maghraj is, in our opinion. wholly unreasonable, if not fantastic. The order passed by the learned Sessions Judge on September 6, is clear beyond any read this order and it is suggested doubt. Shri Maghraj that he misconstmed its effect. How an order directing notice of the application to the opponent along with a copy of the application to be served on the opponent to mean an order ever have been construed learned Sessions Judge is obvious taken by the view to take Judge 195L ( 1957 M"""k IAI v. Dr. Prim Chand 592 SUPREME COURT REPORTS [1957J j:s o·!.Jjcct clearly had not I~, 1951, when that notice directing the issue of stay, it is impossible to understand. issued is elaborate in Then again, the order actually \~'a;~ ~o .;:·equirc the Sub· its terrns a1H_i Divisional Magistrate to give effect to the prayers made the appellant in his application without any delay.

Besides, the endorsement made by Shri Maghraj show ing that the order had been complied with and his silence on September learned Judge Sessions If Shri Maghraj had com served are very eloquent. mitted an honest mistake, he would have immediately reported to the learned Sess10ns Judge that notice had not been issued and instead erroneously an order of stay had been sent in the said proceedings. Besides, when Shri Maghraj gave evidence the present proceedings, he did not adhere to the theory of mistake. His present version is that he prepared the draft order at the instance of the appeilant before the case was argued and when he received it back duly signed by the Reader Shri Loya, it was given to the dcspatcher and from him it reached the hands of the appellant. There is no doubt that Shri Maghraj is an accomplice and, so like all accomplices, he has tried to minimise the part played by him in this transaction.

It is true that the evidence against the appellant is substantially circumstantial and there is no doubt that finding against the appellant cannot be made on such circum is wholly incon stantial evidence unless leads irresistibly to the sistent with his innocence and inference of his guilt. The judgment of the High Court judges were fully conscious of shows that the kar'."led that, having position. They have held regard lo all the circumstances of the case it is impos· sible to hold that the fabricated order could have come been despatched and would have hurriedly without the active assistance and collabora tion of the appellant. the evidence existence Shri Daphtary then argued that the failure of the the Reader, was inference in conse· the only point which Shri to examine Shri Loya, that adverse suggested the complainant should be drawn complainant deliberate against quence. Indeed this was and he 195; Mano.k Lal v.

Dr. Prem Chand Gajmdragadkar J. S.C.R. 'SUPREME COURT REPORTS 593 that, reluctant in regard in quasi-criminal proceedings have been Daphtary placed before us seriously to the merits of the finding recorded by the High Court against It may be conceded in favour of Shri the appellant, proceedings Daphtary like the present, all important and relevant evidence must be laid· before the tribunal; b.ut this requirement is always subject to the proviso that it is generally for the prosecutor who is in charge of the case to decide which of the witnesses are necessary for the unfolding the case. The prosecutor no doubt must act bona the court and the person against fide and fairly by started. Acting bona fide, the view that certain if the prosecutor takes witnesses need not .be examined, generally the court would be inference the present case, against justification for drawing any such adverse is no the complainant because Shri Loya inference against is no better is difficult to that the failure of the complainant to examine assume an accomplice can ever give rise If that be the ference against true posi!ion, that the finding of the High Court is vitiated by reason of the the High Court did not consider the effect of to examine Shri Loya before the complainant's failure this point does not appear Incidentally to have been pressed before the High Court.

In. the in holding that no case result, we have no hesitation has been made out for our conclusions of the High Court under Art. 136 of the Constitution. than an accomplice and it the prosecution. Besides, the complainant's case. to draw an adverse it would be idle interference with to an adverse tribunal. contend That leaves only one point to consider and that is the correctness or the order passed the propriety of by the High Court directing the removal of the appel the roll of legal practitioners. Shri lant's name from Daphtary contends severe and he has appealed to us to consider the fact · that the appellant was a junior at the Rar and the removal of his name from .. the · roll of legal practitioners would deprive him of the source of his livelihood. We are not argument at all. Unfortunatelv impressed with is unduly this order 1957 I.Al Manak v. Dr. Prem Chan<! Gajtndragadkar J. 594 SUPREME COURT REPORTS [1957] th.is is not the court and as important part.

They are, trouble on In 1952 he was it appears appellant has come into the ground of suspended professional misconduct. for a period of two months for misappropriating some to him by his clients for the payment money given of court fee. This. is one fact which is against the appeHant. Besides, the misconduct which is proved in this cace is, in our opinion, of a very serious character. the administration of law and justice, lawyers have In to play an in a sense, they are given officers of special rights and privileges. The profession of enjoys high and respected status and reputation of its it corresponding own and status carries with 01. Jligations. Naturally the highest standards of professional morality integrity. that cases of this nature are very rare but unfor tunately when such cases come before the courts, courts must take a serious view of such reprehensible lapses and must pass deterrent orders.

It is our duty to express our disapproval of such unworthy practices as emphatically as we can because the legal profession must be from persons who do not feel any in corrupting public officers by unworthy hesitation temporary and immediate benefit of fore, hold the High Court the aepellant's name from directing the removal of In the appeal justified. fails and musl be dismissed with costs. their clients. We must, that the order passed by the Bar must zealously the Bar, we ought considerations rolls is fully In fairness illegal result, Appeal dismissed. •f.:rp;-.i..:..s.-V-78 s. c. India/59-21-1 '-61-· l·,oo.