In Re: N.A. Pleader

Courtney-Terrell, C.J.—This is a reference by the Judicial Commissioner of Chota Nagpur concerning the unprofessional conduct of a Pleader practising in his division, N. The unprofessional conduct which is complained of arose in the following circumstances. On 5th May of last year two cases were due for hearing before the second officer and the Sub-Divisional Officer of Khunti respectively, and the Pleader was briefed in both cases. In the second officer''s Court he was associated with a distinguished member of the legal profession as his junior to appear on behalf of one Tara Prasanno Ghosh who was accused of certain matters which involved a complicated consideration of forest rights. In the second case before the Sub-Divisional Officer he was to appear to defend one Jaimangal Prasad Amin, a young man who was accused of taking bribes. In both cases the matters had appeared before the respective Courts several times before. In the case of Jaimangal who was to appear before the Sub Divisional Officer several adjournments had been taken and it had been arranged that on this day, 5th May the prosecution witnesses were to appear for cross-examination. N has living with him in his house a younger Pleader who is his brother-in-law and this younger Pleader had on some of the former occasions appeared with N on the instructions of the client and with a very small fee to take notes of the evidence but he had not been instructed to take any active part in the proceedings. In the case before the second officer as I have said N was led by a Pleader of great experience.

On 4th May a consultation took place at the house of N regarding Jaimangal''s case and at that consultation there were present the Pleader himself, the client, the client''s father and the brother-in-law who as I have said was engaged in taking notes and the consultation took place concerning the cross-examination which was to take place on the following day. There is no question that the client was under the impression that the Pleader would appear and would himself conduct the cross-examination. At the time of the consultation the Pleader was well aware that there was also coming on, on the following day the case before the second officer but as far as that case was concerned he was amply protected by the presence of his leader.

It appears that when the case came on before the second officer the Pleader took up his position in that Court with his leader and he did not go near the case in which he alone as an Advocate was instructed to defend Jaimangal and cross-examine the witnesses for the prosecution. Jaimangal''s father who was looking after the case on his behalf and probably supplying the funds for his defence came into the second officer''s Court and requested N to come into the Sub-Divisional Officer''s Court and conduct the cross-examination as had been arranged. For reasons which appear a little doubtful the Pleader declined to go into the Sub-Divisional Officer''s Court and insisted in remaining in the second officer''s Court but I will deal with the case on the basis that the story told by the Pleader of his motive for his refusal to go is substantially true. He says that he explained to the father of the accused that he could not leave the case before the second officer and that his presence there was essential and that he desired in that Court to assist his leader. He pressed Jaimangal to instruct his young brother-in- law. He told him that he (the brother-in-law) would be able to satisfactorily cross examine the witnesses and said that in any event he could not go personally. The client was very annoyed at this. He declined to instruct the brother- in-law and declined to allow him to cross-examine the witnesses and the accused Jaimangal was compelled himself to start the cross-examination of the prosecution witnesses. After a time, however, it became clear to the Sub-Divisional Officer that he would require assistance. Another junior who appears to be a reputed Advocate practising in this Court who had at an earlier stage of the proceedings been concerned with the case but who had been, by reasons of an illness, divorced for some considerable time from it, was found re-introduced into the case and asked to take up the cross-examination and on the application of that junior the Sub-Divisional Officer adjourned the cross examination for a few hours in order that the junior might properly prepare himself and take up the work. Later on he resumed the hearing; the junior cross-examined the witnesses and the accused was eventually convicted; and indeed from an examination of the facts of that particular case it would seem that no other course but conviction was possible for the Sub-Divisional Officer and that practically speaking there was no defence. N, however, remained in the Court of the second officer and it is said that he assisted his leader not in the actual cross-examination but in coaching him with regard to the facts which the leader required and after a time he left second officer''s Court when his services were no longer required there came into the Sub-Divisional Officer''s Court, found that the other Pleader whom I have mentioned had already been engaged and was cross-examining the witnesses and that his services were no longer required. He accordingly left the Sub-Divisional Officer''s Court and went away.

The complainant in the case is the convicted man Jaimangal who says that the Pleader behaved in an unprofessional way by deserting him and going off to another case and, in our opinion, the complaint is justified. I must here make some observations upon; the duty of an Advocate and more especially on the duty of an Advocate who undertakes the defence of an accused in a criminal case. The criminal offence in respect of which the client was being tried was that of receiving bribes being a public officer and any one who has experience of that class of case knows that the cross-examination of the witnesses is a duty of the highest importance for the defence. In this particular case as I have said it would appear that no cross examination would have had any material effect upon the course of the case because it was so clear but nevertheless the matter must be dealt with as a matter of principle and in such cases as I have said cross-examination must be of the highest importance to the defence. On the day before the case came on for hearing there had been a lengthy conversation between Jaimangal and the Pleader and the young brother-in-law and it cannot be suggested on behalf of N that he made any intimation to the client that that consultation was for the purpose of enabling his brother-in-law to conduct the cross-examination. It is admitted that the client went away under the impression that the cross-examination was to be conducted by the Pleader himself. That view is confirmed first of all by the lay client himself, secondly, by the evidence taken at the enquiry before the Judicial Commissioner of the young brother-in-law himself. He says, as I dare-say he believed, that he felt himself quite competent and was prepared if his brother-in-law were away to conduct the cross-examination but, however, that may be, the fact is that the lay client was distinctly under the impression that the cross-examination was to be conducted by N. The brother-in-law had merely been employed at a nominal fee from time to time to take notes of the evidence. That being the case his instructions did not extend to taking part as an Advocate.

With regard to the other case that was going on before the second officer the Pleader at the time when he attended the consultation with Jaimangal knew perfectly well that on the following day and at the same time that Jaimangal''s case would come on the case in the second officer''s Court would also come on. He knew perfectly well that important prosecution witnesses would have to be examined in that Court. He also knew that the cross-examination would be conducted by his leader. He has said that he was taken by surprise by the circumstances that arose in the second officer''s Court on the following morning. He says that his leader wanted him to remain. It is true that his leader has offered evidence to the effect that he had desired certain statements to be checked by N but he has nowhere stated that the presence of N was really essential to the conduct of the case and in any event he was amply provided with assistance. He had the accused person himself there, he had the accused person''s tahsildar; he had in fact every supply of information which was necessary for the conduct of the case and he does not pretend himself that the presence of his junior was essential to him but even if it had been of the greatest value and importance to him it was the duty of the Pleader N to consider his duty to his other client. No human ingenuity has been able to solve the problem of the administration of justice whereby two cases are liable to come up in different Courts at the same time. There is no way of getting out of that difficulty. The profession itself I know would welcome any suggestion by which any solution of the difficulty could be found but nevertheless N should have realized that his client in the Sub-Divisional Officer''s Court depended upon him for the cross-examination of the prosecution witnesses. He should have known that it was the duty of his leader in the case in the second officer''s Court to conduct the cross-examination of the witnesses himself and he should have left the case in the second officer''s Court where the client was thoroughly protected and have gone to the Sub-Divisional Officer''s Court and there conducted the case where the client had no protection whatever.

It is possible and indeed probable that he was really guided in the course of his action by the fact that his client in the case in the second officer''s Court was an important client. He may also have been influenced by the probability that in the case in the Sub-Divisional Officer''s Court Jaimangal had very little chance of acquittal and that the case could not be made any worse by his absence and could not be made any better by his presence but, however, that may be, the more difficult the case the more important it was that he should have gone to Jaimangal''s case but in these circumstances he certainly on his own account of the proceedings threw away the interests of an unimportant client in favour of the interests of an important client and in so doing he has committed an offence which is deserving of the most serious censure. But a censure in a case of this kind is an inadequate punishment and we feel it our duty to mark our opinion of the gravity of the offence and also to protect the reputation of the profession itself. The reputation of the profession is liable to'' be gravely affected by conduct of this kind. We, therefore, order that N be suspended from practice for a period of two months from this date.

Ross, J.

I agree.

Kulwant Sahay, J.

I agree.