In Re: B. an Advocate

Wort, Ag. C.J.

This matter comes before this Court after a decision by a tribunal of the Bar Council appointed by the Chief Justice with regard to the conduct of one B, an advocate of this Court. It is unnecessary to state in detail the preliminary stages of this matter except to say that it first came before this Court on a report by Mr. Rowland the then District Judge of Patna. The allegations of alleged professional misconduct relate particularly to certain criminal proceedings in which two persons Mewa Lal and Rambrich Lal were concerned. They were charged with theft and criminal trespass and were ultimately convicted. As I have said, it is in relation more particularly to these proceedings that the allegations of professional misconduct are alleged. There is one other matter which formed part of the charge and that related to certain execution proceedings in certain rent suit to which I shall presently refer.

When the matter came before the tribunal of the Bar Council twelve charges were framed but so far as we are concerned it is only necessary to investigate charges 1, 2, 3, 6 and 10. The learned Government pleader who appeared on behalf of the Bar Council and also appeared on behalf of the Crown both before the tribunal and this Court does not press the others. Substantially the finding of the tribunal was that the advocate was guilty of three charges 1, 2 and 3.

Shortly the facts which it is necessary to mention are these: Certain criminal proceedings to which I have referred were started against the two persons Mewa Lal and Rambrich Lal. They were brought before the Court on 26th September 1930. From the record of the proceedings it will be seen that the next date of hearing was 14th October. There were subsequent hearings to which I shall have presently to refer but ultimately judgment was delivered on 27th November 1930 convicting the two accused persons.

An application was made by the two accused for copies of the judgment and from the petition it appears that the accused persons desired that the copies should be handed to their advocate who is the advocate regarding whose conduct we are concerned in this care. Copies were supplied in accordance with the petition and then on 2nd December, at least that is the date alleged, the accused persons appear to have gone to the Court complaining that B, the advocate, had wrongly retained these judgments. I do not propose at this moment to go into details with regard to this matter but they were sent back to the advocate and ultimately the advocate appeared on their behalf in the appeal.

I mention this fact at this stage as it was by reason of the allegation of the accused persons that the judgments had been retained by the advocate that this matter ultimately came before this Court on a report of the District Judge.

There were twelve charges as I have stated but number of them, including the fourth,charge have not been pressed. I mention the fourth charge because that relates to the introduction of the advocate to the two accused persons. It was alleged that the advocate made certain representations to the accused resulting in his being retained in the criminal case.

It is unnecessary to deal with the allegations of the complainants in this regard as I have already indicated that they were not established before the tribunal and were not pressed before this Court. I mention it merely by way of introducing the other facts with which we are concerned in this inquiry.

To come directly to the charges, charge No. 1 relates to the matter which I have just mentioned, namely the alleged withholding by the advocate of the judgment. Charge No. 10 also relates to the same mutter. The difference with regard to them is the motive which is alleged for which the judgments were withheld. As regards charge No. 1 it was alleged by the complainants that the judgments were withheld by the advocate with the intention of getting himself retained in the appeal. Charge No. 10 alleges that the judgments were withheld with the intention of the advocate getting a sum of Rs. 10 each from the two accused persons.

Charge No. 6 is an allegation that whilst the relationship of lawyer and client existed the advocate persuaded the accused persons to enter into a mortgage bond at an unconscionable rate of interest for the purpose of the provision of fees for himself in the case although as was alleged by the complainants, a consolidated fee of Rs. 150 had already been fixed and paid prior to the date upon which it was alleged the mortgage transaction was entered into.

To come back to charges Nos. 2 and 3. The allegation is as regards charge No. 2 that the advocate appeared in some three out of six suits or execution proceedings out of rent suits without a vakalatnama and charge No. 3 alleges that the advocate appeared in the criminal proceedings in its trial stage without a vakalatnama. I think perhaps it would be convenient to deal with charges Nos. 2 and 3 in the first instance. It is quite clear that out of the original rent suits there was a vakalatnama in favour of the advocate in five out of the six, and that in the execution proceedings arising out of the six rent suits there were vakalatnamas in three. It is quite clear therefore that as regards some of the execution proceedings the advocate appeared and acted without a vakalatnama. It is contended by Mr. Yunus who appears on behalf of the advocate in this Court that the circumstances disclose nothing more than an excusable mistake. It is pointed out that the documents in the case or rather the rent decrees gave B''s name as the advocate and I imagine there is a good deal in the argument which Mr. Yunus advances in this connexion, that is that it was not incumbent upon the advocate to see whether the rent decrees were correct in this respect, in other words, when the advocate saw his name appearing in the rent decree he was entitled to assume that a vakalatnama had been filed in all the rent suits and that therefore he was entitled to appear in the subsequent execution proceedings therefore there was no breach of the rules of the Court relating to the matter.

Before dealing with the conclusion at which we have arrived as regards charge No. 2,1 come to the case of charge No. 3, that is, as I have said the charge that the advocate appeared in the criminal proceedings in the trial stage without a vakalatnama. This is a more serious matter because having regard to the facts of the case it is difficult to find an excuse for the advocate in this particular matter. The tribunal seemed to be under the impression that the vakalatnama which was ultimately filed in the appeal proceedings had been altered so far as its date was concerned. This appears to be correct but the decision of the tribunal as regards the particulars of the alteration appear to me to be incorrect. Prom a careful scrutiny of the vakalatnama it would appear that the original date of the document was 27th December and this had been changed to 27th November.

It was thought, as far as my memory of the decision of the tribunal goes, that the alteration was from 27th October to 27th November the alteration being with the intention, it would appear, of showing that the advocate when he first appeared, according to his own case, that is on 31st October, had in fact a vakalatnama.

But this is not quite consistent with the story which has been told because at one stage of the proceedings the advocate was questioned by the peshkar in regard to this matter and he then stated that a vakalatnama was unnecessary as he was appearing on instructions of mukhtear.

So far I have not mentioned this mukhtear but from the facts it would seem that the mukhtear appeared for the accused on 26th September, when he disappeared from the case according to the complainants on the representations to which I have already referred and which were the subject-matter of the unsustained charge No. 4. Apart from all unnecessary details it is clearly established that the advocate did not have vakalatnama when he appeared in the trial stage of the criminal proceedings.

A very considerable argument has been advanced by Mr. Yunus on the question of whether a vakalatnama was necessary. Mr. Yunus has gone so far as to say that once the muktear was in the case, as he admittedly was on 26th September, unless notice was given to the Court of his discharge from his duties as an advocate he still remained, and technically therefore the advocate would be entitled to appear without a vakalatnama in his name. That argument, in my judgment, cannot be supported. What is abundantly clear from the facts, and there seems to be no reason whatever for disbelieving the evidence of the mukhtear on this point, is that he had gone out of the case immediately after the hearing on 26th September. In his diary the date of the next hearing, namely, 14th October, is mentioned, but he has explained that by stating that that date was put in his diary on the occasion of 26th September, when the next date of hearing was fixed.

As I have already said there seems to be no reason why the evidence of the mukhtear should be disbelieved on this point. This seems to dispose of this point. Assuming that the fact is established that on two occasions at any rate the advocate appeared contrary to the rules of the Court without a vakalatnama it remains to be seen whether that action on his part amounts to professional misconduct. I hope I shall not be misunderstood in stating that the rule of Court which demands, the filing of a vakalatnama or mukhtarnama in criminal proceedings is an arbitrary rule. There is no moral sanction behind it. It is a rule which was made for the better administration of justice and it is a rule which an officer of the Court must comply with but even making these statements it is rather difficult to hold that a disobedience of that rule in a particular case amounts to professional misconduct.

The Government Pleader was pressed on this point as to what object there could be in the advocate omitting to comply with this rule. The most that could be suggested was that he might have retained the stamps or rather the money for stamps which were, required for stamping the vakalatnama. This matter incidentally formed the subject-matter of another charge which has not been sustained or pressed in this Court. It is almost incredible that an advocate for the sake of a rupee, which is the stamp fee on this vakalatnama, should omit to comply with this rule, the result of which at any rate in civil proceedings might get him into very serious difficulties with his client.

It appears to us from the evidence in this case that the advocate as regards these matters, that is charges 2 and 3, was guilty of gross negligence. Speaking for myself I am not persuaded that that conduct however reprehensible, in an officer of the Court does amount in this case at any rate to professional misconduct. It must not be understood that I am laying down any rule that appearance without a vakalatnama or other non-compliance with the rules cannot amount to professional misconduct. There may be instances in which the Court would be forced to hold otherwise but we content ourselves by saying that in this particular instance having regard to all the circumstances of the case the advocate was not guilty of professional misconduct in this respect. That disposes of charges 2 and 3 and we have to deal only with those charges which relate to the withholding of judgment and with the execution of the mortgage deed.

The advocate in his evidence and explanation contends that he did not withhold the judgment of the trial Court which was delivered on 27th November 1930. (His Lordship then discussed evidence and proceeded). The fact is that he did appear in the appeal, although without fees. "We can only hold in the circumstances of this case that this was a last moment decision on the part of the Advocate and this supports the view that his intention in retaining the judgment was to get himself engaged. His excuse as regards appearing for the complainants in the appeal on the ground of their poverty without fees in my judgment is belied, by his general conduct in this case and having come to that conclusion, particularly having regard to the fact that there was no valid excuse for retaining the judgments, the only conclusion the Court can come to as regards this matter is that the Advocate was guilty in this respect of professional misconduct.

I now come to the last remaining charge, that relating to the mortgage deed. The mortgage deed was executed on 23rd October, and registered on the 24th, the stamp having been purchased as we now know from the evidence, as early as 20th October. The property mortgaged was the property of the wife of Mewa. The circumstances under which she be came possessed of that property it is not necessary to state. Mewa was asked to execute the mortgage exabundanti cautela. The consideration was Rs. 200.

There is a second charge as regards this mortgage which I need only mention as again it is not pressed in this Court, and from the circumstances which have been established, it seems to me that the learned Government Pleader was right in not pressing it. The other charge to which I refer was that the Advocate was guilty of cheating. The cheating is, if I may say so, somewhat undefined. It appears to have relation to whether 2 bighas or 16 bighas should have been mortgaged. The complainants were literate persons, they could read and write and the mortgage was in fact of 16 bighas.

Although there may have been some discussion, as the evidence shows, as to whether 2 bighas or 16 were to be mortgaged, how can it be said that because 16 bighas were ultimately mortgaged that the Advocate was guilty of cheating. There was no suggestion of attempting to set aside the deed or anything of that kind and the charge appears to me to be an afterthought.

The complainants case was that they got none of the Rs. 200 and that it was for the purpose of supplying the Advocate with further money, although in fact a consolidated fee of Rs. 150. had been arranged and paid. The tribunal disbelieved the story. (His Lordship then discussed evidence and concluded that the Advocate got Rs. 90 and proceeded).

The question which will arise in these circumstances is whether the entering into this mortgage bond, which I should have mentioned was at the rate of Rs. 3 per mensem, with monthly rests, amounted to professional misconduct. The finding of the tribunal in this connexion is that it did not amount to professional misconduct because of the fact that the relationship of lawyer and client did not exist on the date of its execution. (His Lordship then discussed evidence and proceeded). It appears to me to be an inevitable conclusion from the facts which are established in this case that the relationship existed. What are the facts? The Advocate had entered into this transaction with the two complainants; whether he persuaded them or whether they came to him and suggested the mortgage seems to me to be immaterial on this point. The fact remains that the transaction was for the purpose inter alia of paying the Advocate his fees.

That being so it is impossible to find that the relationship did not exist; in other words, there was a bargain as between lawyer and client as to the payment of fees and from the moment that bargain was entered into it must be held that the relationship existed. We have therefore to decide whether the facts which are established disclose professional misconduct on this charge. To recapitulate, the circumstances must be remembered. First it is impossible to hold as I have indicated that negotiations for the bond were the first introduction of the accused to the Advocate.

I have no doubt that the purpose of the mortgage bond was inter alia the provision of fees to the Advocate and if that be so it is impossible to hold that the relationship of lawyer and client did not exist at the time as I have already stated. The interest was excessive and that is impliedly admitted by the Advocate himself. There was some pressure it seems on the part of the Advocate to mortgage 16 bighas and not two as suggested by the complainant, and in this connexion I would say that I can hardly agree with the tribunal that the Advocate or mortgagees were more sinned against than sinning.

It must also be remembered that the position of an Advocate is a privileged and responsible one and that the public have a right to look upon the Bar as consisting of persons in whom they may have the utmost confidence. It may be difficult, and it is certainly inexpedient to express precisely the limits to the conduct of an Advocate in entering into a transaction, the purpose of which is the provision of fees for his work, in a case in which he is engaged, by the person with whom such transaction is entered into. But from the surrounding circumstances in this case we are satisfied that the Advocate has passed that limit beyond which his action will amount to unprofessional conduct or professional misconduct.

I have said little or nothing about the question of whether the story of the complainants or the story of the Advocate is true as regards the amount of fees which were agreed upon. This to me appears to be somewhat irrelevant for the purpose of deciding the charges upon which I have stated the finding of this Court. We have very carefully taken into consideration the circumstances not forgetful of the fact that the proceedings before the tribunal of the Bar Council lasted for upwards of two years and I cannot leave this case without saying that this is a somewhat disquieting feature of the case. Possibly and probably the tribunal had every reason or excuse for taking so long in coming to a conclusion in this matter, but as I have said, it is a disquieting feature of the case and in some circumstances might amount to a complete denial of justice.

But we must note strongly, as the tribunal did, upon the method which has been adopted by the Advocate in defending himself. Much that he has said is untrue and he has been anything, but frank in his evidence. This is regrettable and must be taken into consideration in coming to a conclusion in the case. With these observations I leave the matter. We find that no order other than that the Advocate should be suspended from practice for one year would be adequate This order will date from 17th August. As the proceedings were so protracted and many of the charges were not made out, there will be no order as to costs.

Kulwant Sahay, J.

I agree.

Fazl Ali, J.

I agree.