T.C. Hingorani vs G.P. Misra

P.B. Gajendragadkar, C.J.—The short question of law which arises in this appeal is whether Mr. K.L. Misra, the Advocate General of UP is entitled to appear on behalf of the Appellant Mr. T.G. Hingorani against whom proceedings have been taken in contempt at the instance of the Respondent Mr. G.P. Misra in Contempt Case No. 24 of 1960. The Respondent, on whose application the present proceedings have been commenced, urged an objection before the Allahabad High Court that the Advocate-General was not entitled to appear in the said proceedings for the Appellant. The High Court has allowed the said objection and has ruled that the Advocate-General would not be allowed to defend the Appellant. It is against this order that the Appellant has come to this Court by special leave.

It appears that in his application, the Respondent alleged that the Appellant had committed contempt of court, inter alia, on the ground that while acting as the Railway Magistrate, he had disobeyed certain specific orders of the District and Sessions Judge, Meerut.

The said application was admitted by the Allahabad High Court and notice was ordered to be issued against the Appellant. The Appellant was a special Magistrate appointed by the UP Government. The UP Government sanctioned the amount necessary for the defence of the Appellant and instructed Mr. K.B. Asthana, the Junior Standing Counsel, to represent him in the proceedings in question. Later, the said Government instructed Mr. Misra, the Advocate-General to appear in defence as the Advocate of the Appellant. Accordingly, the Advocate-General filed his appearance as Advocate-General appearing for the Appellant. An objection was then raised by the Respondent that the Advocate-General could not appear in the present proceedings on behalf of the Appellant. The Advocate-General then filed his appearance also as an Advocate for the same party on 22-12-1960. Even so, the Respondent''s learned Advocate contended that Mr. K.L. Misra could not appear in the present proceedings either as the Advocate-General of UP or even as an Advocate; and it is this objection which has been upheld by the Allahabad High Court. Mr. Rana for the Appellant contends that the view taken by the said High Court in upholding the objection raised by the respond dent is clearly erroneous in law. In our opinion, this contention is well founded and must be accepted,

The position, status and duties of the Advocate-General are to be found primarily in Article 165 of the Constitution. Article 165(1) provides that the Governor of each State shall appoint a person who is qualified to be appointed a Judge of a High Court to be Advocate-General for the State. Having thus specified the qualifications for appointment as Advocate-General, Article 165(2) prescribes his duties; it provides that it shall be the duty of the Advocate-General to give advice to the Govern; ment of the State upon such legal matters and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Governor and to discharge the functions conferred on him by or under this Constitution or any other law for the time being in force. Article 165(3) provides that the Advocate General shall hold office during the pleasure of the Governor and shall receive such remuneration as the Governor may determine. It is thus clear that the Advocate-General has to give advice to the Government of a State, has to perform such other duties of a legal character as may be assigned to him by the Governor and has to discharge other functions conferred on him by the provisions of the Constitution, or any other law in force. Therefore, there can be no doubt that if the State Government assigns to the Advocate-General the work of appearing in any legal proceedings in which it is interested, that would be the assignment to perform a duty of a legal character within the meaning of Article 165(2) and in assigning such duties, the State Government would be acting within its jurisdiction; and in accepting the assignment, the Advocate-General will be discharging his duties imposed by the said provision.

Then as to his status as an Advocate simpliciter, he was entitled at the relevant time to practise as a matter of right as prescribed by Section 14 of the Indian Bar Councils Act, 1926 (38 of 1926). It is not disputed that the Advocate-General is not a Government servant though he receives remuneration on his appointment as Advocate-General under Article 165(3); and so, there can be no doubt that subject to the other terms and conditions of his appointment as Advocate-General, he would be entitled to exercise his right as an Advocate and appear for private parties. Thus, whether the status of Mr. Misra is considered as an Advocate General or as an Advocate, prima-facie, it is difficult to understand how he can be prohibited from appearing in any legal proceeding like the one with which the Allahabad High Court was dealing in the present case.

The Legal Remembrance''s Manual prepared by the UP Government provides for certain Rules for the conduct of the Advocate-General, the Government Advocate of the High Court, the Deputy Government Advocate, the Assistant Government Advocate, the Senior Standing Counsel and the Junior Standing Counsel. The appointment of the Advocate-General, however, is made under the constitutional provision contained in Article 165 and that gives him a special constitutional status. The judgment under appeal indicates that the Allahabad High Court based its decision, inter alia, on some of the rules made by the UP Government for regulating the conduct of the Advocate-General and the Government Advocate for the High Court. These rules are not statutory rules; they are rules made by the State Government for the guidance of its Law Officers. It is necessary to refer to the relevant rules before considering the correctness or propriety of the view taken by the High Court on the strength of these rules. Rule 8 provides that it shall be the duty of the Advocate-General to appear on behalf of the Government or the State as the case may be, in the categories of cases specified by Clauses (a) to (i) thereof. It is significant that Rule 8(c) refers to cases in the High Court, in all trials in the exercise of its original criminal jurisdiction, but not in cases relating to contempt of court. This provision unambiguously indicates that the rules do not require the Advocate-General to appear in cases relating to contempt of court; that duty has been assigned to the Government Advocate for the High Court by Rule 41(5). The said rule prescribes the duties of the Government Advocate who has been described as the Public Prosecutor u/s 492 of the Code of Criminal Procedure, 1898 by Rule 40; amongst these duties is the duty to conduct personally in the High Court on behalf of the State all cases of contempt of Court. Reading Rules 8(c) and 41(5) together, there can be little doubt that in contempt proceedings, it is the Government Advocate who is bound to appear and the Advocate-General is not required to appear. The scheme of the rules thus clearly is that all contempt proceedings should be in charge of the Government Advocate and the Advocate-General is absolved of any responsibility to conduct the said proceedings on behalf of the State. In the present case, the Government Advocate or his Deputy has appeared in accordance with Rule 41(5).

Rule 10 is also relevant for our present purpose. It debars the Advocate-General from accepting certain categories of work. Rule 10(b) debars him from giving legal advice to any private person on matters upon which, in his opinion, he is likely to be called upon to advise the Government. This rule indicates that the Advocate-General is free to give legal advice to private parties in all cases, subject to the provision that he should not and would not give advice to any private party in a matter on which, according to his judgment, he is likely to be called upon to advise the Government. If a private party goes to the Advocate-General for his legal opinion, or otherwise for his assistance as a lawyer, the Advocate-General has to decide whether the matter in respect of which his opinion or his assistance is solicited, is of such a character that Government may later ask him for his advice in respect of it. If he decides that it is of such a character, then he cannot and will not advise or assist the private party. On the other hand, if he comes to the conclusion that the matter in which his advice or assistance is sought is not of a character in which Government would be interested and in respect of which Government was likely to ask for his advice, then it is open to him to give such advice or assistance. It is significant that whether or not he should assist the private party, has been left to the discretion and decision of the Advocate-General himself. In our opinion, having regard to the constitutional status of the Advocate-General, it is not surprising that the rule in question should have left this matter to the sole discretion of the Advocate General.

The Allahabad High Court has, however, taken the view that the prohibition prescribed by Rule 10(b) "would lose all its force if it depended upon" the opinion of the Advocate-General. We are unable to see how this consideration can arise on the plain words used in Rule 10(b). We have just indicated that the rule assumes and we think rightly, that a lawyer of the status of the Advocate-General of a State would take all relevant considerations into account and will bear in mind the requirements of professional ethics and etiquette in deciding the question as to whether the matter on which any private party is seeking for his assistance is one on which Government may have occasion to consult him. We do not see any impropriety in leaving the decision of this question to the sole discretion of the Advocate-General himself. Besides, having regard to the plain words of the rule, we are unable to understand how the High Court could have ignored the rule on the ground that it took the view that the prohibition would lose all its force if the Advocate-General were allowed to decide the matter.

In this connection the High Court has also observed that it was not known whether the Advocate-General has formed any opinion on the question as required by Rule 10(b). With respect, we are unable to appreciate this observation. The very fact that the Advocate-General filed his appearance as an Advocate General as well as an Advocate on behalf of the Appellant, unambiguously shows that he knew that he was doing and he must have felt that the proceedings in question were not of a character in which Government was likely to ask for his advice. In dealing with this aspect of the matter, the High Court should not have lost sight of the fact that the Government of UP had itself asked the Advocate-General to appear for the Appellant.

In regard to the order passed by the UP Government asking the Advocate-General to appear in the present proceedings, the High Court has held that the Government have no power to assign to the Advocate-General the defence of an opposite party in a case of contempt of court; it thought that Rule 8 does not include such a power. We have already noticed that Rule 8 deals with the duties of the Advocate-General to appear no behalf of the Government or the State in cases enumerated by Clause (a) to (i). But in coming to the conclusion that the Government had no power to assign this work to the Advocate-General, the High Court has failed to take into account the constitutional provision contained in Article 165(2). Under the said provision, the Advocate-General has to perform such other duties of a legal character as may, from time to time, be referred or assigned to him by the Governor; and it would be idle to suggest that the duty assigned to the Advocate-General to appear in the present proceedings for the Appellant is not a duty of a legal character. Therefore, the view taken by the High Court that the Government had no power to assign the present work to the Advocate-General, is not sound.

Then the High Court has referred to certain provisions of the Code of Criminal Procedure and has observed "that it is One of the functions of the Advocate-General to exhibit information in the High Court in respect of criminal contempt." This view plainly ignores the provisions of Rule 8(c) and 41(5) to which we have already referred. These rules indicate that in contempt proceedings, it is the duty of the Government Advocate for the High Court to appear on behalf of the State and it is not the duty of the Advocate-General to appear in such cases. Therefore, having regard to the relevant rules, it would be more appropriate to assume that the duty to exhibit information in regard to criminal contempt would be the duty of the Government Advocate of the High Court and not of the Advocate-General.

The High Court thought that it would be somewhat incongruous and anomalous that the Government Advocate for the High Court should prosecute an application for contempt and the Advocate-General should be free to oppose the said application. We do not see how this alleged anomaly or incongruity can effect the right of the Advocate-General to appear for a party in any legal proceeding, or his obligation to perform the duty assigned to him by the UP Government in the present case. The point which the court is considering in the present proceedings is the right of the Advocate-General to appear for a party in contempt proceedings and it would be unreasonable to deny such a right on the ground that his appearance in such proceedings may introduce an anomaly or incongruity.

The High Court also referred to some of its previous decisions in support of its conclusion that the Advocate-General cannot appear in the present proceedings., We do not think that the said decisions really assist the Respondent in the present case. In Phundi Singh v. Shri Ram Criminal Misc. Case No. 17 of 1950, decided on the 14th March, 1951, a Bench of the Allahabad High Court held that the Government Advocate could not defend a Government servant who was being prosecuted for '' contempt of court and it observed in that connection that the State could ''not direct the Government Advocate to appear for the opposite party. In view of Rule 41(5), this order may be fully ''justified. The said rule has made it the duty of the Government Advocate as Public prosecutor to conduct contempt proceedings in the High Court on behalf of the State and so, the Allahabad High Court was right in holding in the case of Phundi Singh (supra) that the State Government could not ask the Government Advocate to defend the Government servant against whom the contempt proceedings had been commenced contrary to the provisions of Rule 41(5). The position in the present case, is however, entirely different. In the present case, the relevant rules clearly permit the State Government to ask the Advocate-General to appear for the Appellant. The other decisions to which the High Court has referred all seem to relate to the Government Advocate and his appearance in contempt proceedings; they do not appeal to be relevant or material in dealing with the present point. We are, therefore, satisfied that the Allahabad High Court was in error in holding that the Advocate-General would not be allowed to defend the Appellant in the present contempt proceedings. The appeal is, therefore, allowed and the order under appeal is set aside.

Before we part with this appeal, we cannot help expressing our deep regret that the present contempt proceedings which began in 1960 should still remain undisposed. Under the circumstances of this case, we direct that the Respondent should pay the costs of the Appellant.