TMI Blog1957 (2) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... t a false stay order written by the clerk by improper means and thereby he managed to take an illegal and undue advantage for his clients and therefore deserves to be punished for the same. When this report was received by the High Court, the matter was argued before the Court. In the result the High Court agreed with the findings made by the tribunal and directed that the appellant should be removed from practice. It is against this order that by Special Leave the appellant has come to this Court. The facts giving rise to the complaint against the appellant are very few. It appears that there was a dispute concerning Jhalra well and certain agricultural plots surrounding the well between Pukhraj and others on the one hand and Dr. Prem Chand and others on the other. These parties were described in the said proceedings as Party No. 1 and Party No. 2 respectively. The appellant was the counsel for Party No. r. As a result of this dispute the police presented a report in the court of the Sub-Divisional Magistrate, Sojat, that the dispute was likely to cause breach of peace and suggested that proceedings under s. 145 of the Code of Criminal Procedure should be taken. The Sub- Divis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar there is no dispute about the facts. There is, however, a serious dispute as to other events which, according to the complainant, happened on September 6, 1951. The complainant s case is that, after the hearing of the case was adjourned to September 12, 1951, and notice of the application was ordered to be issued to Party No. 2, the appellant prevailed upon Shri Maghraj, clerk of the Sessions Judge s Court to prepare an actual stay order, that the said stay order was accordingly prepared and was got signed by the Reader of the Court. Then the appellant obtained the stay order from Shri Sheolal the despatch clerk to whom it was entrusted by the Reader. Armed with this order the appellant personally took the order to the Sub-Divisional Magistrate and presented it to him the next day. In due course the revision application was taken up for hearing on September 12, 1951. Since no notice had been served on Party No. 2 the hearing was again adjourned to September 22, 1951. It is common ground that on September 22, 1951, it was discovered that a fraudulent stay order had been issued from the office of the learned Sessions Judge s Court. The learned Sessions Judge then called for expla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h these points first. Shri Daphtary contends that the tribunal appointed by the learned Chief Justice of the High Court of Rajasthan to enquire into the alleged misconduct of the appellant was improperly constituted and all proceedings taken before the tribunal, the report made by it and the subsequent order passed by the High Court pursuant to this report are all invalid. This point arises in this way. The tribunal consisted of three members with Shri Changani as it,-, Chairman. It is common ground that Shri Chhangani had filed his vakalat on behalf of Dr. Prem Chand in proceedings under s. 145 of the Code of Criminal Procedure on August 23, 1952, and had in fact argued the case on that date. Shri Daphtary contends that since Shri Chhangani had appeared in the criminal proceedings in question for the opponent he was disqualified from acting as a member of the tribunal and this disqualification introduces a fatal infirmity in the constitution of the tribunal itself There is some force in this argument. It is well settled that every member of a tribunal that is called upon to try issues in judicial or quasi-judicial proceedings must be able to act judicially; and it is of the ess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vehicle belonging to the applicant and one belonging to W. At the hearing of the summons the acting clerk to the justices was a member of the firm of solicitors who were acting for W in a claim for damages against the applicant for injuries received in the collision. After the evidence was recorded the justices retired to consider their decision and the acting clerk also retired with them in case they should desire to be advised on any point of law. The applicant was convicted in the case. This conviction was challenged by the applicant on the ground that it was vitiated by the improper conduct of the justices in allowing the acting clerk to be associated with them when they deliberated about the merits of the case. An affidavit was filed on behalf of the justices that they reached their decision without consulting the acting clerk and that the acting clerk had in fact abstained from referring to the case. This affidavit was accepted as true by all the learned judges who heard the case and yet the conviction was quashed. The question is observed Lord Hewart C.J. whether the acting clerk was so related to the case in its civil aspect, as to be unfit to act as a clerk to the justic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntends that the tribunal is not empowered to. pass final orders on the enquiry and that the report made by the tribunal is, in every case, to be submitted to the High Court for the final decision of the High Court. We are not impressed with this argument. If it is true that in judicial or quasi-judicial proceedings justice must not only be done but must appear to be done to the litigating public, it is equally true that when a lawyer is charged for professional misconduct and is given the privilege of being tried by a tribunal of the Bar Council, the enquiry before the tribunal must leave no room for a reasonable apprehension in the mind of the lawyer that the tribunal may have been even indirectly influenced by any bias in the mind of any of the members of the tribunal. In the present case, we have no hesitation in assuming that when Shri Chhangani agreed to work as the Chairman of the tribunal, he did not remember that he had appeared against the appellant s clients in the criminal proceedings under s. 145. We are told that Shri Chhangani is a senior member of the Bar and was once Advocate-General of the High Court of Rajasthan. Besides he had not appeared in the case at all stag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when objection to a conviction is taken merely by a member of the public and not by a party more particularly aggrieved the granting of a certiorari is discretionary. Where the objection is by a party aggrieved, then, as a rule, a writ is issued ex debito. justitiae. This position, however, is subject to the exception that a party aggrieved may by his conduct preclude himself from taking objection to the jurisdiction of an inferior Court. But it is significant that the second ground on which the judgment proceeded clearly indicates that the justice whose presence at the hearing was challenged under s. 15 of the Act by the petitioner did not apparently appear to fall within the mischief of s. 15 of the Act at all. I do not say , observed Channel J., whether the facts shown would be enough to make him a person following or concerned in the business of a baker within the meaning of s. 15 . This conclusion was accepted by the two other learned judges. It would thus appear that the decision in this case does not justify Shri Umrigar s contention that, even if the constitution of the tribunal is held to be defective or improper, the proceedings taken before the tribunal and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... came to know that the report had gone against him he thought better of his rights and raised this point before the High Court for the first time. In other words, though the point of law raised by Shri Daphtary against the competence of the, tribunal be sound, it is still necessary for us to consider whether the appellant was precluded from raising this point before the High Court by waiver or acquiescence. From the record it is clear that the appellant never raised this point before the tribunal and the manner in which this point was raised by him even before the High Court is somewhat significant. The first round of objection filed by the appellant against the tribunal s report was that Shri Chhangani had pecuniary and personal interest in the complainant, Dr. Prom Chand. The learned Judges of the High Court have found that the allegations about the pecuniary interest of Shri Chhangani in the present proceedings are wholly unfounded and this finding has not been challenged before us by Shri Daphtary. The learned Judges of the High Court have also found that the objection was raised by the appellant before them only to obtain an order for a fresh enquiry and thus gain time. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tively challenged by them. We are disposed to think that even a layman, not familiar with legal technicalities and equitable principles on which this doctrine of disability has been based, would have immediately apprehended that the lawyer who had appeared for Dr. Prem Chand was authorised to sit in judgment over the conduct of the appellant and that might cause embarassnient to the appellant and might lead to prejudice against him. From a purely common sense point of view of a layman, the position was patently awkward, and so, the argument that the appellant was not conscious of his legal rights in this matter appears to us to be an afterthought. Since the appellant was driven to adopt this untenable position before the High Court in seeking to raise this point for the first time at that stage, we are not surprised that the High Court took the view that the plea had been taken late in order, to gain time and to secure a fresh enquiry in the matter. Since we have no doubt that the appellant knew the material facts and must be deemed to have been conscious of his legal rights in that matter, his failure to take the present plea at the earlier stage of the proceedings creates an effe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requested the Sub-Divisional Magistrate to prevent the appellant s clients from taking illegal possession of the land and removing the crops. It is these two rival contentions which the learned Judges of the High Court had to examine. The judgment shows that it was substantially with a view to satisfy themselves that the application referred to by the respondent before the High Court in the course of the argument had in fact been made that the High Court subsequently called for and examined the relevant records. It may be that in the earlier part of the judgment the learned Judges have stated somewhat generally that they had looked at the records of both the cases; but it is clear from the reasons given by the learned Judges that the perusal of the records in the said two cases had played no part in the final decision of the High Court. We are, therefore, not satisfied that the procedure adopted by the High Court in dealing with this matter suffers from any serious irregularity as a result of which their final orders should be set aside and a fresh hearing of the matter should be ordered. Then remains the question of the merits of the finding recorded by the High Court. Shri Dap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if not fantastic. The order passed by the learned Sessions Judge on September 6, 1951, is clear beyond any doubt. Shri Maghraj read this order and it is suggested that he misconstrued its effect. How an order directing notice of the application to the opponent along with a copy of the application to be served on the opponent could ever have been construed to mean an order Directing the issue of stay, it is impossible to understand. Then again, the order actually issued is elaborate in its terms and its object clearly was to require the Sub- Divisional Magistrate to give effect to the prayers made by the appellant in his application without any delay. Besides, the endorsement made by Shri Maghraj showing that the order had been complied with and his silence on September 12, 1951, when the learned Sessions Judge found that notice had not been served are very eloquent. If Shri Maghraj had committed an honest mistake, he would have immediately reported to the learned Sessions Judge that notice had not been issued and instead erroneously an order of stay had been sent in the said proceedings. Besides, when Shri Maghraj gave evidence in the present proceedings, he did not adhere to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of the complainant to examine an accomplice can ever give rise to an adverse inference against the complainant s case. If that be the true position, it would be idle to contend that the finding of the High Court is vitiated by reason of the fact that the High Court did not consider the effect of the complainant s failure to examine Shri Loya before the tribunal. Incidentally this point does not appear to have been pressed before the High Court. In the result, we have no hesitation in holding that no case has been made out for our interference with the conclusions of the High Court under Art. 136 of the Constitution. That leaves only one point to consider and that is the correctness or the propriety of the order passed by the High Court directing the removal of the appellant s name from the roll of legal practitioners. Shri Daphtary contends that this order is unduly severe and he has appealed to us to consider the fact that the appellant was a junior at the Bar and the removal of his name from the roll of legal practitioners would deprive him of the source of his livelihood. We are not impressed with this argument at all. Unfortunately it appears that this, is not the firs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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