Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MANAK LAL, ADVOCATE VS Respondent: DR. PREM CHAND SINGHVI
P L D 1957 Supreme Court (Ind
P L D 1957 Supreme Court (Ind.) 346
Present: Venkatarama Ayyar, S. K. Das and Gajendragadkar, JJ
MANAK LAL, Advocate‑Appellant
Versus
DR. PREM CHAND SINGHVI and others‑Respondents
Civil Appeal No 246 of 1956, decided on 6th February 1957.
(a) Bar Councils Act (XXXVIII of 1926)----
----S. 11‑Bar Council Tribunal‑Bias attributed to member constituting tribunal Proof of actual prejudice not necessary‑Bias and pecuniary interest‑Distinction between‑Principle: "nemo debet esse judex in causa propria sua"‑Applicable to all tribunals having jurisdiction to determine judicially rights of parties.
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 essence of judicial decision and judicial administration that Judges should be able to act impartially, objectively, and without any bias. In such cases the test is not whether in fact a bias has affected the judg ment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the Tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done.
In dealing with cases of bias attributed to members constituting tribunals, it is necessary to make a distinction between pecuniary interest and prejudice so attributed. Pecuniary interest however small it may be in a sub ject‑matter of the proceedings would wholly disqualify a member from acting as a Judge. But where pecuniary interest is not attributed but instead a bias is suggested, it often becomes necessary to consider whether there is a reasonable ground for assuming the possibility of a bias and whether it is likely to produce in the minds of the litigant or the public at large a reasonable doubt about the fairness of the administration of justice. It would always be a question of fact to be decided in each case. The principle: "nemo debet esse judex in causa propria sua" precludes a justice, who is interested in the subject‑matter of a dispute, from acting as a justice there in This principle applies not only to justices but to all tribunals and bodies which are given jurisdiction to determine judicially the rights of parties.
In judicial or quasi judicial proceedings justice must not only be done but must appear to be done to the litigating public. When, therefore, 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 tribunals.
Where, a tribunal a appointed to make inquiry into the alleged misconduct of an advocate M, consisted of three members of whom one C. who had filed his Vakalatnama on behalf of the opposite parties in proceedings under section 145, Criminal Procedure Code out of which the misconduct pro ceedings against M arose, acted as its chairman:
Held, that the constitution of the tribunal suffered from a serious infirmity in that C was appointed a member of the Tribunal and in fact acted as its chairman. Actual proof of prejudice in such cases may make the aggrieved party's case stronger but such proof is not necessary in order that the aggrieved party should effectively raise the argument that the tribunal was not properly constituted.
(b) Bar Councils Act (XXXVIII of 1926)------
-----Ss. 11 & 12--- Bar Council Tribunal‑Alleged bias in a member of‑Objection against presence of such member if not raised by party alleging bias in him‑Waiver when can be inferred‑Word "waiver"----- Evidence Act (I of 1872), S. 115.
The alleged bias in a member of the tribunal does not render the proceedings invalid if it is shown that the objection against the presence of the member in question had not been taken by the party even though the party knew about the circumstances giving rise to the allegations about the alleged bias and was aware of his right to challenge the presence of the member in the tribunal. Waiver or acquiescence, like election, presupposes that the person to be bound is fully cognizant of his rights, and that being so, he neglects to enforce them, or chooses one benefit instead of another, either; but not both, of which he might claim. Waiver, therefore, cannot always and in every case be inferred merely from the failure of the party to take the objection. Waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection in question.
(c) Bar Councils Act (XXXVIII of 1926)----
----Ss. 10 & 13 --Misconduct proceedings‑Failure to examine witness‑Adverse inference against prosecution when can be drawn.
Even in quasi‑criminal proceedings like the misconduct proceedings under section 10, Bar Councils Act, all important and relevant evidence must be laid before the, tribunal; but this requirement is always subject to the proviso that it is generally for the prosecutor who is in charge of the case to decide which of the witnesses are necessary for the unfolding of the case. The prosecutor no doubt must act bona fide and fairly by the Court and the person against whom the pro ceedings have been started. Acting bona fide, if the prosecutor takes the view that certain witnesses need not be examined, generally the Court would be reluctant to draw an adverse inference against the prosecutor.
Frome United Breweries Co. v. Bath Justices 1926 App. Cas 586 at p. 590; Rex v. Sussex Justices. Ex parte McCarthy (1924) 1 K B 256; Rex v. Essex Justices, Ex parte Parkins (1927) 2 K B 475 ; Rex v. Williams, Ex parte Philips (1914) 1 K B 608 and Vyvyan v. Vyvyan (1861) 30 Beav. 65 at p. 74 ref.
C. K. Daphtary, Solicitor‑General of India and Veda Vyasa, Senior Advocate (S. K. Kapur and N. H. Hingorani, Advocates with them) for Appellant.
H. J. Umrigar and T. M. Sen, Advocates four respondent No. 2.
JUDGMENT
GAJENDRAGADKAR, J.‑----The appellant Shri Manak Lal was an advocate practising at Sojat. A complaint was filed against him under section 13 of the Legal Practitioners Act by Dr. Prem Chand Singhvi. It was alleged that the appellant was guilty of professional misconduct and the complainant requested that suitable action be taken against him in that behalf. Since the appellant was not a Pleader or a Mukhtear but an advocate of the High Court of Rajasthan, the complaint was sent for enquiry to the tribunal nominated by the Chief Justice of the High Court of Rajasthan under section 10 (2) of the Bar Councils Act. The tribunal held an enquiry, recorded evidence and came to the unanimous conclusion that the appellant "was guilty of professional misconduct in having got a false stay order written by the clerk by improper means and thereby he managed to take an illegal and undue advan tage 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. 1. 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 section 145, Criminal P. C., should be taken. The Sub‑Divisional Magistrate drew out a preliminary order on 5th July 1951, (Exh. A‑1). By this order both the parties were called upon to put in their written statements as regards their claims to possession of the property in dispute. The learned Magistrate also passed an order attaching the property in dispute pending the decision of the proceedings under section 145. This was followed by another order passed on 9th August 1951, that the crop which was on the field should be auctioned, its price deposited in Court and the land itself should be given for cultivation to the highest bidder for the next year. It appears that the hearing of the case was fixed for 21st August 1951. Members of the Party No. 1 were aggrieved by these orders and on their behalf the appellant preferred a revision application against these orders in the Court of the Sessions Judge, Pali, on 13th August 1951. The appellant presented another petition before the learned Sessions Judge on 29th August 1951. In this petition it was alleged that the crop which stood on the fields in question belonged by the cultivators described as Party No. 1 that the crop was getting spoiled and that the cultivators would be considerably prejudiced if they were dispossessed from their lands at that stage. On these allegations the application prayed that an order should be passed not to auction the crop as well as the right of future cultivation and that liberty should be given to the cultivators to go to the well and to look after the crop pending the final disposal of their revision application before the learned Sessions Judge. The learned Sessions Judge was not apparently inclined to grant ex parte interim stay and so on the same day he directed that notice of the revision application should be given to the other party and called upon the applicants to furnish talbana and a copy of the application. The case then stood adjourned for hearing on 6th September 1951. On 6th September 1951, when the case was called out before the learned Sessions Judge, the appellant was present. The learned Sessions Judge found that the appellant had not submitted a copy of his application as already directed but he was told that the appellant was sub mitting a copy on the same day. That is why the learned Judge ordered that notice should be issued after the said copy was filed. The hearing of the case was then adjourned to 12th September 1951. So far there is no dispute about the facts. There is, however, a serious dispute as to other events which according to the complainant happened on 6th September 1951. The complainant's case is that, after the hearing of the case was adjourned to 12th September 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 12th September 1951. Since no notice had been served on Party No. 2 the hearing was again adjourned to 22nd September 1951. It is common ground that on 22nd September 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 explanation from Shri Mughraj and directed the Sub‑Divisional Magistrate to treat the letter of 6th September 1951 containing the alleged order of stay as cancelled. It appears that as a result of the enquiry held by the learned Sessions Judge, he found that Shri Maghraj had committed a grave mistake and held that it would be enough if Shri Maghraj was fined Rs. 11 and administered a severe warning to behave properly in future. The complaint against the appellant is that the appellant took an active part in the commission of the fraud and was thus guilty of fraudulent and grossly improper conduct in the discharge of his professional duty. A false order bed been obtained by him by unfair means and so he was guilty of professional mis conduct. That in substance is the case against the appellant. As we have already indicated, many of the facts alleged in the complaint against the appellant are not in dispute. The appellant admits that he was present before the learned Sessions Judge on 6th September 1951. It is not denied by him that he took the envelope from the despatch clerk addressed to the Sub‑Divisional Magistrate, Sojat, and that he in fact handed over the envelope the next day in the office of the Sub‑Divisional Magistrate. His case, however, is that he never approached Shri Maghraj in this matter and that he was not in any way instrumental in getting the draft prepared. In fact according to the appellant, he did not know the con tents of the envelope and it was only on 22nd September 1951 that he knew that a false order of stay had been issued by tote office of the Sessions Judge by mistake. Before the tribunal, evidence was led by both the parties. The com plainant Dr. Prem Chand himself gave evidence and on his behalf Shri Maghraj and Shri Sheolal were examined. The appellant Manak Lal gave evidence on his behalf. Both the members of the tribunal and the learned Judges of the High Court of Rajasthan have, on the whole, accepted the com plainant's version, rejected the pleas raised by the appellant and have held that the appellant is guilty of gross professional misconduct. It is this finding which, on the merits, is challenged before us by Shri C. K. Daphtary on behalf of the appellant. Shri Daphtary has also raised two points of law in support of his argument that the order passed against the appellant must be set aside. It will be convenient to deal with 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 im properly 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 con sisted of three members with Shri Chhangani as its Chairman. It is common ground that Shri Chhangani had filed his vakalatnama on behalf of Dr. Prem Chand in proceedings under section 145 of Code of Criminal Procedure on 23rd August 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 al 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 essence of judicial decisions and judicial administration that Judges should be able to act impartially, objectively and without any bias. In such cases the test is not whether in 4 fact a bias has affected the judgment ; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. I is in this sense that it is often said that justice must not only be done but must also appear to be done. As Viscount Cave L. C. has observed in Frome United Breweries Co. v. Bath Justices (1926 App. Cas. 586 at p. 590 )
"This rule has been asserted, not only in the case of Courts of Justice and other judicial tribunals, but in the case of authorities which, though in no sense to be called Courts, have to act as Judges of the rights of others."
In dealing with cases of bias attributed to members con stituting tribunals, it is necessary to make a distinction between pecuniary interest and prejudice so attributed. It is obvious that pecuniary interest however small it may be in a subject‑matter of the proceedings, would wholly disqualify a member from acting as a Judge. But where pecuniary interest is not attributed but instead a bias is suggested, it often becomes necessary to consider whether there is a reasonable` ground for assuming the possibility of a bias and whether it is likely to produce in the minds of the litigant or the public at large a reasonable doubt about the fairness of the adminis tration of justice. It would always be a question of fact to be decided in each case. The principle, says Halsbury, nemo debt esse judex in causa propria sua precludes a justice who is interested in the subject‑matter of a dispute, from acting as a justice therein". (Halsbury's Laws of England Vol. XXI, p. 535 para. 952). In our opinion, there is and can be no doubt about the validity of this principle and we are prepared to assume that this principle applies not only to the justices as mentioned by Halsbury but to all tribunals and bodies which are given jurisdiction to determine judicially the rights of parties.
In support of his argument, Shri Daphtary referred us to the decision in Rex v. Sussex Justice, Ex parte Mc Carthy ((1924) 1 K, B 256). In this case, the Court was dealing with a case arising out of a collision between a motor 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 con sider 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 justices in the criminal matter"
and the learned Judge added that
"the answer to that question depends not upon what exactly was done but upon what might appear to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference in the course of justice "
Lush, J. who agreed with Lord Hewart, C. J., likewise accepted the affidavit made on behalf of the justices but observed,
"that they have placed themselves in an impossible position by allowing the clerk in those circumstances to retire with them into their consultation room."
The same principle was enunciated with equal emphasis in Rex v. Essex Justices, Ex parte Parkins ((1927) 2 K B 475). This was a dispute between a husband and his wife and it appeared that the wife had consulted the solicitor's clerk in their office about the preparation of a deed of separation from her husband and the lawyer acted in the matter for a time after which she ceased to consult him. No mention of the matter was made to the solicitor himself except one very short reference to it in a weekly report from his clerk. Subsequently the solicitor acted as a clerk to the justices who tried the case. He stated in his affidavit that, when acting as a clerk to the justices on the occasion in question, he had no knowledge that his firm had acted for the wife and that he was in no way adverse to the husband. It was urged that the decision of the justices should be set aside as the justices were not properly con stituted and it appears also to have been suggested that the decision might, perhaps, have been influenced, by a prejudice though indirectly and to a very small extent. Rejecting the argument that the decision of the justices had been influenced even remotely by the impropriety alleged, Avory, J. stated that
"though the clerk to the justices and the justices did not know that his firm had acted for the applicant s wife, the necessary, or at least the reasonable, impression, on the mind of the applicant would be that justice was not done seeing that the solicitor for his wife was acting with the justices and advising them on the hearing of the summons which she had taken against him."
It has, however, been urged before us by Shri Umrigar, on behalf of the Advocate‑General, that this principle should not be applied to the proceedings before the tribunal appointed under the Bar Councils Act. He contends that the tribunal is not empowered to pass final order 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 mat 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 tee tribunal he did not remember that he had appeared against the appellant's clients in the Criminal Proceedings under section 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 stages but had appeared only once as a senior counsel to argue the matter. It is, therefore, not at all unlikely that Shri Chhangani had no personal contract with the client, Dr. Prem Chand and may not have been aware of the fact that, in the case from which the present proceedings arose, he had appeared at any stage for Dr. Prem Chand. We are, however, inclined to hold that this fact does not in any way affect the legal argument urged before us by Shri Daphtary. It is not Shri Daphtary's case that Shri Chhangani actually had a bias against the appellant and that the said bias was responsible for the final report made against the appellant. Indeed it is unnecessary for Shri Daphtary to advance such an argument. If Shri Chhangani was disqualified from working as a member of the tribunal by reason of the fact that he had appeared for Dr. Prem Chand in the Criminal Proceedings under section 145 in question, then it would not be necessary for Shri Daphtary to prove that any prejudice in fact had been caused of that Shri Chhangani improperly influenced the final decision of the tribunal. Actual proof of prejudice in such cases may make the appellant's case stronger but such proof is not necessary in order that the appellant should effectively arise the argument that the tribunal was not properly constituted.
Shri Umrigar, however, contended that unless prejudice is actually proved the challenge to the validity of the con stitution of the tribunal cannot be upheld and he sought to rely upon the decision in Rex v. Williams, Ex parte Phillips ((1914) 1 K B 608), in support of this contention. In this case the Court was dealing with an application for a writ of certiorari. A baker had been charged under section 4 of Bread Act of 1836. It was alleged that he had sold bread otherwise than by weight and was liable to be convicted under section 15 of the Act. In fact he was so convicted. Thereupon he obtained a rule nisi for a writ of certiorari to quash the conviction on the ground that one of the justices was a person concerned in the business of a baker. Section 15 disqualified persons concerned in the business of a baker to act as a justice in the trial of such cases. This application for a writ was ultimately rejected by the Court. The decision of the Court, however, was based substantially on two grounds. Channel, J., who delivered the principal judgment of the Court, observed that :
"When objection…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.