Advocate Cuddalore; Collector of south Arcot vs An Advocate

Ramachandra Iyer J.

The respondent is an advocate practising at Cuddalore, South Arcot District. He was appointed to the office of the Public Prosecutor for a

period of three years from 1952 and in February 1955 his. term was extended for a further term of three'' years. In the year 1956 certain

differences arose between the respondent and the Collector of the district. The respondent appears to have felt that by an unwarranted

interpretation of the rules the fee for the work done by him was reduced, and on 9-8-1956 he tendered the resignation of his office. The

resignation was accepted by the Government to G. O, 2585, Home, dated 13-9-1956, with effect from 9-8-1956.

While the respondent was in office as Public Prosecutor the Deputy Registrar of Co-operative Societies (prosecution) consulted him on 7-9-

1955 on the advisability of launching a prosecution against certain office-bearers of the Srimushnam Co-operative Society for alleged defalcation.

Records relating to the alleged misappropriation of the society''s funds were placed before the respondent, who gave a written opinion advising a

complaint to the police for investigation and prosecution.

Prosecution was launched against the office bearers of the society, and the accused were duly committed to Sessions by the Additional First

Class-Magistrate, Cuddalore, on 31-5-1956. The case was originally posted before the Sessions Judge, but later it was transferred to the court of

the Assistant Sessions Judge, II, Cuddalore, to be tried on 22-8-1956. As stated already the respondent had sent in his resignation by then. But

the State Government had not passed orders accepting the same. The Collector, therefore, requested the respondent by his letter dated 14-8-

1956 to attend to the current work till his resignation was accepted and till he was relieved.

By another letter of the same date the Collector requested the respondent to conduct the prosecution in the Srimushnam Co-operative Society

defalcation case in S. C, No. 38 of 1956 on the file of the Assistant Sessions Judge II Cuddalore. Unfortunately the respondent, without any

regard to the dislocation of public work which would result as a consequence of his stopping away suddenly, wrote to the Collector the very next

day, declining to take up the case on the ground he had resigned already (although the resignation was not accepted then) and that he had

committed himself to other engagements.

We cannot help feeling that the respondent could have displayed a greater sense of responsibility by attending to the duties of the office held till his

resignation was accepted by the proper authority. Differences of opinion or even a feeling that he had not been justly treated (assuming it was

warranted) cannot justify the precipitate action resulting in the abandonment of a duty he owned to the State and to the court. Thereupon the

Collector directed the handing over of the papers to the Additional Public Prosecutor who was placed in additional charge as Public Prosecutor.

On 21-8-1956 the respondent accepted the engagement on behalf of the second accused in S. G. No. 38 of 1956, the case in which he had given

/Opinion for the prosecution. The Deputy Registrar of Co-operative Societies filed ""an objection memo"" before the Assistant Sessions Judge to the

respondent''s appearing for one of the accused in the case, as he had intimate knowledge of the facts on the side of the prosecution. The fact of the

respondent''s having given an opinion advising the prosecution does not appear to have been brought to the notice of or relied on before the

learned Judge, as the objection was based only on certain alleged confidential communications.

Accepting the assurance of the respondent that he did not come across any confidential records the Assistant Sessions Judge overruled the

objection and allowed the respondent to appear for the second accused. In the trial that proceeded, the accused were acquitted. The Collector

thereupon reported the conduct of the respondent to the Government, who moved the High Court for taking action u/s 10 of the Bar Councils Act.

A second complaint in regard to the conduct of the respondent was also made by the Government, charging that the respondent while he was the

Public Prosecutor appeared before the Sessions Judge, South Arcot, in Crl. M. P. No. 119 of 1956 in S. C, No. 52 of 1956 on behalf of the

State, but that after ceasing to hold office he accepted the engagement on behalf of the accused in that sessions case. On receipt of the complaints

the explanation of the respondent was obtained and the two following charges were framed against him.

That you... .an advocate of the High Court of Madras while holding the office of Public Prosecutor, Cuddalore, had access to the records

relating to alleged defalcation in Srimushnam Co-operative Society, acquired the confidence of the Cooperative Sub Registrar (prosecution) in

connection therewith, gave legal opinion and advised the prosecution of the then office-bearers, the said society in pursuance of which the

prosecution was launched and the accused later committed to sessions, that you attended to the case so committed, viz, S. C. No. 38 of 1956,

while it was pending before the Sessions Court, South Arcot, but subsequently after resigning the office of Public Prosecutor when the case stood

transferred to the court of the Assistant Sessions Judge you declined to appear for the prosecution in S. C. No. 38 of 1956 in the said court

though requested to do so by the Collector of South Arcot, and accepted the engagement of one of the accused therein and conducted the

defence at the trial before the Assistant Sessions Judge despite the objections taken by the prosecution to your appearing for the defence.

That you as Public Prosecutor of South Arcot, after having access to the prosecution records, receiving instructions and appearing for the

prosecution in the bail application C. M. P. No. 119 of 1956 preferred by the accused in S. C. No. 52 of 1956, subsequent on resigning the office

of Public Prosecutor appeared for the accused and conducted their defence in the trial of S. C. No. 52 of 1956.

It must be stated that the first charge, in so far as it said that the respondent appeared in S. C. No. 38 of 1956 while it was pending in the

Sessions Court, is factually incorrect. The matter was enquired into by the Tribunal of the Bar Council. There was, however, no controversy in

regard to the facts set out above. Before the Tribunal the respondent expressed unqualified regret for his conduct and stated that it was foolish on

his part to have appeared for the accused in the Sessions case.

The Tribunal held that the respondent suppressed the fact of his having given an opinion on the side of the prosecution when his right to appear was

challenged in S. C. No. 38 of 1956, and that he was guilty of the two charges of misconduct. We do not however agree with the Tribunal that the

respondent was guilty of any suppression of facts before the Assistant Sessions Judge. The only question then raised was about certain alleged

confidential communications, and the question of the respondent having given an opinion was not relied on as disqualifying him from appearing for

the accused.

But we find however that the respondent is guilty of improper conduct in having taken up engagement on behalf of the accused in the cases in

which he, as Public Prosecutor, gave an opinion or appeared at the time of the bail applications on behalf of the prosecution. Whatever may be the

position in civil cases, we are of the view that an advocate who has given an opinion for one side in a criminal case should not accept an

engagement at subsequent stages of the case for the opposite side.

That employment places him in a position of confidence and imposes on him a duty not to use the information so gained, unwittingly or otherwise,

to the detriment of his client. That duty continues even after the relationship of advocate and client has ceased, and therefore this prohibition cannot

be made to depend on the fact whether the party engages him in the subsequent stages of the case or not. Higher interests of the administration of

justice and the preservation of the noble traditions of the bar, of which he is a member, should dictate him to reject the preferred brief for the other

side. The question of propriety cannot depend upon the existence of any confidential communication.

Indeed it would not be possible to investigate whether in fact there was confidential communication or not, having regard to the provisions of

Section 126 of the Indian Evidence Act. The office of a Public Prosecutor is one of considerable prestige and responsibility, and nothing should be

allowed to be done which would have the effect of impairing the confidential advice which he is often called upon to give or of undermining the

confidence of the public in the purity of Criminal Law administration. Such offices carry with them a retaining fee.

But whether the question is viewed merely on the basis of a contract of service or from the higher standards of professional morality, which in our

opinion should be the guiding principle, it is improper for an advocate who held the office of a Public Prosecutor or was engaged as a special

Public Prosecutor to accept an engagement for the defence in a case in which at an earlier stage he advised or gave an opinion to the prosecution

or appeared on behalf of the prosecution at the stage of interlocutory applications like applications for bail etc.

We have already found that the charges against the respondent have been substantially proved. Considering the fact that even from the early stage

of the case the respondent realised his error and expressed unqualified regret and the publicity which these proceedings inevitably involve, we take

no further action in the matter except to express our displeasure at his conduct.