In the matter of Babu Surja Narain Mukhtear

Wort, J.—This matter comes before this Court under S. 14, Legal Practitioners Act, and is reported to the Court by the Sessions Judge of Bhagalpur. Four accused persons were brought before the Subdivisional Magistrate under arrest. Ultimately on 22nd December 1933 they were released on bail, Babu Surja Narain becoming surety for their appearance. It would appear that one Ramzan Khan had offered himself as surety to the District Magistrate but this had been rejected. In these circumstances the Mukhtear in question came forward and was accepted by the District Magistrate. It ultimately appeared that unknown to the District Magistrate an agreement had been entered into by Ramzan Khan with the Mukhtear that Ramzan Khan should indemnify the latter. Bail had been fixed in the sum of Rs. 200 in respect of each parson and the agreement was that Ramzan Khan should deposit with the Mukhtear the sup of Rs. 800/- but in the result Rs. 730/- only was deposited. The charge made against the Mukhtear was that he was guilty of professional misconduct in accepting the indemnity; and further in showing cause against, the escheat of the bail as the accused persons did not appear, that he suppressed the fact that he had been so indemnified and that loss would fall upon him. The facts are not seriously disputed. A number of arguments have been advanced by Mr. Yunus who appears on behalf of the Mukhtear which, in my judgment, are not relevant to the question. It has been urged that the date upon which the accused persons should appear was not the 6th of January as alleged; but this, as I have indicated, has no relevance to the matter in question which is quite apart, from whether the accused persons appeared or not.

The charge is that this agreement of indemnity was entered into between Ramzan Khan and the Mukhtear The facts apart from those which I have stated are as follows: On 22nd January 1934 the Subdivisional Magistrate before whom the accused had been brought in custody made this order:

The accused are absent. The bailor says that they were discharged on 13th January 1934 The bailor files a petition showing canst as to why the accused were absent on 6th January 1934. Put up before S.D.O. for orders on 7th February 1934.

On that date, i.e. the 7th February 1934 Surja Narain was again heard and the order of the Magistrate on that date was that the bail should be escheated. On 22nd February 1931 the Subdivisional Magistrate made a note in his order sheet that the penalty had not been paid, but there appears to have been a statement before him that in the meantime there had been an appeal to the District Magistrate. The appeal came before Mr. Mansfield, the District Magistrate, for the first time on 19th February 1934. For reasons which do not clearly appear from the order sheet, an enquiry had been ordered, the result of which came before the District Magistrate on 10th March 1934. The Magistrate on that date made that order:

Report of the Post-master seen. The enquiry is adjourned to 12th March 1934.

It then appears that on 12th March the District Magistrate was satisfied that this sum of Rs. 730 had gone into the Post Office Savings Bank account of Surja Narain. On 19th March 1934 there was a petition before the District Magistrate, which is not before us but which has been referred to by Mr. Yunus appearing on behalf of Surja Narain. On this date a statement appears to have been made by Suraj Narain which is, in my judgment, of every considerable importance having regard to the argument addressed to this Court in his behalf. It appears that before Mr. Mansfield he made the statement that he was a poor man without means. The words contained in the District Magistrate''s order sheet are these:

It the appellant denies the allegation be should be explain whence he got this sum, and why be informed me that he was a poor man without means.

I should correct what I have just said as it would appear from what I have read that this statement as regards poverty of Suraj Narain was made on the occasion when the matter first came before the District Magistrate in appeal from the order of the Subdivisional Magistrate escheating the bail. By this date it was established to the satisfaction of the District Magistrate that Suraj Narain had received this sum of Rs. 730 and this fact is not disputed. It is this fact of being indemnified which is characterized as a professional misconduct. A suggestion has been made that the Mukhtear in entering into this agreement with Ramzan Khan was merely assuring himself that the accused persons would appear on the date named by the Magistrate; in other words, he had no control over the accused himself, and by the methods which he adopted he was able to give the undertaking by means of the assistance of a person who had more control over the accused than himself. But it seems to have been forgotten that this in some sense made the offence all the more grave The fact is that Ramzan Khan had already been rejected as a surety by the District Magistrate and this agreement of indemnity resulted in the Magistrate accepting in ignorance the surety which he had already rejected.

Now it is said by Mr. Yunus that there was no moral offence, nor was it contrary to the practice that this Mukhtear should stand surety for accused persons. There is nothing against a legal practitioner becoming a surety for accused persons. But again one has to come back to the point of the charge. He is not charged with acting as surety, but charged with the offence, if I may call it such, of entering into a contract of indemnity. This matter has been dealt with in a large number of cases in England and I can state in advance that the law as laid down there has been accepted as being the law of India. One of the earlier cases, by no means the earliest, was the case of Herman v. Jcuchner, (1885) 15 Q B D 561 = 54 L J Q B 340 = 33 W R 606 = 49 J P 502 = 53 L T 94 where it was held that:

A contract is illegal, whereby a defendant in a criminal case, who has been ordered to find hail for his good behaviour during a specified period, deposited money with his surety upon the terms that the money is to be retained by the surety during the specified period for his own protection against the defendant side fault, and at the expiration of that period is to be returned.

During the course of the judgment of the Court of appeal in that case Brett, M.R. made this statement putting the matter in the form of a question:

That is the substance of the contract; is it illegal? To my mind it is illegal, because it takes away the protection which, the law affords for securing the good behaviour of the plaintiff. When a man is ordered to find bail, and a surety becomes responsible for him, the surety is bound at his peril to sec that his principal obeys the order of the Court.

That was a case of surety for good behaviour; and it has been sought in the course of the argument to differentiate that case from the case which we have before us which was surety for the appearance of the accused persons. The case to which I have just made reference it will be noticed, was a contract for indemnity between the accused person and another. But the question of an indemnity between two persons other than the accused was specifically decided in the case of Consolidated Exploration and Finance Co. v. Musgrave, (1900) 1 Ch 37 = 69 L J Ch 11 = 16 T L R 13 = 64 J P 89 =48 W R (sic)98 = 81 L T 747. There North, J., stated in quoting the authorities :

An agreement by an accused person with his bail to indemnify him against liability On his recognizance is illegal as depriving the public of the security of the bail.

And later, in referring to the bail:

When Musgrave became bail he had cast upon him duties and given to him corresponding powers to enforce them, which powers no third person who became responsible could have.

And later:

It is essential for the security of the bail that the principal should be compelled to appear at the time and place specified in the recognizance.

Then the matter came before the Court of Criminal Appeal in England which Court decided that such an agreement as that to which reference is now being made was common law conspiracy: vide King v. Porter, (1910) 1 K B 369 = 79 L J K B 241 = 26 T L R 200 = 74 J P 159 = 102 L T 255; and Lord Alverstone, Lord Chief Justice of England, in the course of the judgment of the Court stated this:

This question was very fully discussed in Rex v. Brailsford, and 1 there pointed out that it cannot of course, be maintained that every fraud and cheat constitutes an offence against the criminal law, but the distinction between bet ween acts which are merely improper or immoral and those which tend ro produce a public mischief has long been recognised

Later:

It is in the interest of the public that criminals should be brought to justice and therefore that it should be made as difficult as possible for a Criminal to abscond; and for many years it has been held that not only are bail responsible on their recognizance for the due appearance of the person charged, but that, if it come to their knowledge that he is about to abscond, they should at once inform the police of the fact.

I do not refer to the case of King v. Porter, (1910) 1 K B 369 = 79 L J K B 241 = 26 T L R 200 = 74 J P 159 = 102 L T 255 as an authority in this country on the question of conspiracy. That question it is unnecessary to decide, and I do not decide it, but I refer to it, more particularly for the statement of Lord Alverstone that such an agreement constitutes a public mischief, and public mischief in the sense that it is against public policy as it would tend towards obstructing the administration of justice by the criminal Courts. This matter has been discused in the Indian Courts more particularly in Laxmanlal v. Mulshankar, (1908) 32 Bom 449 = 10 Bom L R 553, where some of the cases to which I have made reference have also been relied upon and the passage of Bachelor, J., which I wish to adopt, is as follows after quoting the various authorities:

This definite principle of public policy has been admitted in England and depends upon considerations affecting the administration of public justice, which have certainly not less force in India than they have in England

I have no doubt in my mind that an agreement of this kind can properly be described as a public mischief as being against public policy. In the circumstances the only question that we have to determine in this case is whether the report which has been made to us has been established. The facts are not seriously disputed. It was said during the course of the argument that the Mukhtear apologised at the first possible moment and it is in regard to that matter that I made reference to the order of the district Magistrate, dated 19th March 1934 in which reference was made to a statement made on a previous occasion to the District Magistrate. Now, not until the report had been made by these persons making the enquiry on behalf of the District Magistrate, and which report established the fact that the Rs. 730 had been received by the Mukhtear, was an apology or anything in the nature of an apology made to the District Magistrate. Indeed not only was the suggestion that an apology was made not established, but the statement about which I have no doubt, which Mr. Mansfield states was made by Suraj Narain, indicates an attitude by him entirely opposed to the attitude of apology. This was, as I have already stated and repeat, that he was a poor man without means. Now in a sense that statement was a fraud on the Court. The fact of his being a poor man was not in issue; but it did result in the Magistrate''s understanding that he (the Mukhtear) was to bear the loss which would result in the bail being escheated. In this connexion Mr. Yunus seeks to justify the attitude of his client on the ground that in any event he was responsible for something like Rs. 70. Now can the question of responsibility of Mr. Yunus''s client for a sum of Rs. 70 out of a total sum of Rs. 800 make any substantial difference to the matter? That question seems to me to be best answered by asking another question, and that is, could the Magistrate have accepted as surety in the sum of Rs. 70 for these four accused persons? The whole matter was a fraud on the Court; and the statement that the Mukhtear was a poor man was, in my judgment, a clear indication by the Mukhtear to the Court that he was to bear the loss by this escheat. Now that attitude has a bearing upon the decision which this Court will come to, in the circumstences of the case.

There is no doubt, and it is not disputed that this agreement was entered into and I do not think it can be disputed that up to the very last Suraj Narain attempted to justify his conduct and that has been, as far as one can see, the instructions which he has given to Mr. Yunus in appearing before us today. Had Suraj Narain, when the matter came before the Subdivisional Magistrate in the first instance, clearly stated what were the facts, I have no doubt the Subdivisional Magistrate in that event would have called his attention to what he considered professional misconduct; and if then Suraj Narain had stated that he was unaware of the gravity of his offence or that he was unaware that he was committing an offence, his explanation might have been accepted. Had there been no attempt to justify, the course this Court would adopt would be different. There is very little more to say about the matter. The Sessions Judge recommends in his Letter of Reference that the Mukhtear be severely reprimanded if it is not thought necessary to impose a severer penalty. In coming to a decision on this point not only the facts of the case, but the position of the defendant must be considered. The defendant is a member of a legal profession whoso duty it is to assist in the administration of justice, and to whom the Courts, look and ought to be in the position to expect to act in an honourable way and in such a way as to assist in every possible way in administering justice. Taking all the circumstances into consideration therefore the conclusion that we arrive at is that in this case the order of the Court should be that the Mukhtear should be suspended for three months from this date

Mohammad Noor, J.

I agree. The facts are very simple. Four accused persons were ordered to be released released on a bail of Rs, 200 each by the Subdivisional Magistrate of Supaul. One Ramzan Khan offered to stand surety for them, but the learned Sub-divisional officer refused to accept him in spite of the fact that Ramzan Khan was willing to deposit the amount of surety in Court. Later on the Mukhtear concerned in this proceeding, stood surety for the four accused persons. The accused did not turn up on the date fixed, namely, 6th January 1934 and tile learned Magistrate ordered the amount of the bond to be forfeited. The Mukhtear appealed to the District Magistrate. In the course of the hearing of the appeal it transpired that before standing surety for the four accused persons, the Mukhtear had received from Ramzan Khan (and deposited in the Post Office Savings Bank) the sum of Rs. 730 on the understanding that the amount would go to indemnify him in case the accused persons did not turn up on the date fixed and the amount of the bond was forfeited. On this the present proceeding was started. The charges against the Mukhtear are:

That he entered into an agreement with Ramzan Khan to the effect that the amount deposited by Ramzan Khan with him would indemnify him if he suffered any loss on account of the bail bond being forfeited: and (2) that he tried to conceal the above fact from the Court by representing to the District Magistrate that he was a poor man and the (amount for feited was too much for him to bear.

As shown by my Lord the facts are practically undisputed. So far as the first question is concerned, there is no doubt that the conduct of the Mukhtear was unprofessional. A contract like the one into which the Mukhtear and Ramzan Khan entered was unquestionably illegal, being against public policy as it hampers the administration of justice. When a Court orders an accused to be released on bail on his offering surety or sureties, the question of the forfeiture of the amount of surety in case the accused does not appear on the date fixed, is of secondary consideration; the primary consideration is the personal element of the surety or sureties concerned. When an accused is released on bail on his offering surety for the amount ordered, the Court expects the surety to see that the accused appears on the date fixed and also that the surety will take steps for getting the accused arrested in case there is any attempt on the part of the accused to abscond or to avoid attendance in Court. The surety or sureties must have a personal stake in seeing that the accused carries out his obligation. Our attention has been drawn to S. 513, Criminal P.C. which, in my opinion, clearly shows that the legislature never intended that money should be the only consideration in accepting a surety. The section runs thus:

When any person is required by any Court or officer to execute a bond with or without sureties, such Court or officer may, except in the case of a bond for good behaviour, permit him to deposit a sum of money or Government Promissory Notes to such amount as the Court or officer may fix in lieu of executing such bond.

It is obvious that under this section it is optional for the Magistrate in cases specified, to allow a man who has been called upon to execute a bond with or without surety to deposit the amount in Court. Had the question of the forfeiture of the money been the only consideration accepting the deposit in lieu of surety would not have been left to the discretion of the Court or of the officer, and the acceptance of deposit of money would have been obligatory. This shows that the finding out of a surety in cases where the Court does not think it fit to allow the deposit of a money is essential, and that, as I have said, is intended to make some person or persons responsible for the due performance of the obligation by the man who is asked to furnish surety. In this particular case it must have been obvious to the Mukhtear that the Magistrate refused to accept Ramzan Khan as surety for the due attendance of the accused in Court though Ramzan Khan offered to deposit the entire amount of bail. The Mukhtear did practically the very thing which the Magistrate refused Ramzan Khan to do. The practical effect of this transaction was that the real surety was Ramzan Khan who was to forfeit the amount deposited by him with the Mukhtear in case the accused persons did not turn up on the date fixed. Obviously therefore the Mukhtear frustrated the order passed by the Magistrate. This, in my opinion, was an unprofessional conduct.

Coming to the second charge, though there was no deliberate misstatement on the part of the Mukhtear, yet there was a clear attempt on his part to conceal the fact that he had received Rs. 730 from Ramzan Khan. The learned Advocate appearing on behalf of the Mukhtear in this Court has attempted to show that the objection raised against the forfeiture of the amount of bail was because the Mukhtear was afraid that in the event of his not pressing the objection, Ramzan Khan might call upon him to refund the amount deposited on the ground that it was wrongly forfeited This however was not the reason put forward by the Mukhtear in his application of 8th June 1934 filed, before the District Magistrate wherein, ho stated that he never wanted to conceal the fact that Ramzan Khan did deposit Rs. 730 with him hut that he tried to reduce the amount so that he might not lose Rs. 70 which amount was the difference between Rs. 300 and. Rs. 730. In spite of all these I should have been inclined to hold that a reprimand would be enough in the circumstances of she case, had the subsequent attitude of the Mukhtear been one of regret, and we would have been satisfied that the Mukhtear has realised that what he did was illegal and improper. Up till this moment there is no admission that what he did was wrong. It would have been open to the Mukhtear, when he was called upon to show cause to state that he did not realise at the time when he received the money from Ramzan Khan that he was doing something wrong but that he realised it then and therefore expressed his regret. Up till now his attitude has been that what he did was not wrong and that he was justified in what he did. In these circumstance I agree with the order of my Lord suspending the Mukhtear for a period of three months.

Agarwala, J.

For the reasons already given by my learned brothers, I agree that the agreement between the Mukhtear and Ramzan Khan was one which it was highly improper for a legal practitioner or any bailor to enter into and that the conduct of the Mukhtear in concealing the agreement during the early stages of the present proceedings must be viewed as a serious aggravation of the original offence that he committed. I therefore agree with the order of suspension proposed in his case.