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1953 Supreme(SC) 62
SUPREME COURT OF INDIA
Mehr Chand Mahajan, B. K. Mukherjea, Ghulam Hasan, N. H. Bhagwati, B. Jagannadhadas, JJ.
Shiv Narain Jafa – Appellant
Versus
The Hon`ble Judges of the High Court of Judicature at Allahabad – Respondent
Civil Appeal No. 25 of 1951
Decided On : 15-05-1953
Appellant in person :Shri M. H. Faruqi, Advocate, instructed by Shri C. P. Lal, Agent, for Respondents
Headnote:Section 162-Bar Councils Act (1926), S.10-Misconduct-Dis-ciplanary action. - Indian Bar Councils Act (1926), S. lo-Misconduct-
Disciplinary action-Criminal Procedure Code (1898) S. 162.
In an enquiry under S. 10(1), Bar Councils Act, an advocate was charged that (1) he asked for and was supplied with a copy of a statement under S. 162, Cr. P.C. of a witness examined by police, even though he was not cited as a witness in the Sessions Court, by misleading the Court into thinking that he was such a witness and (2) that in a trial for rape, he attempted to put to the prosecutrix some indecent and unnecessary questions which were disallowed by the court. The High Court held that the action of the advocate mentioned in the first charge was a piece of sharp practice unworthy of a member of the Bar amountiug to professional misconduct and that the conduct referred to in the second charge reflected on his capacity as a lawyer. He was, therefore, suspended from practice for six months.
Held: Regardless of the motive of the Advocate, the Court also had failed to exercise its jurisdiction in refusing the application in view of the express provisions of S. 162, Criminal P.C. and that the Advocates conduct in obtaining the copy would not be called a piece of sharp practice justifying suspension from practice.
(2) With regard to the second charge the subject matter of the ques. tions and the manner in which they were put did suggest that the Advocate exceeded the legitimate bounds of his privilege to some extent. But in view of all the circumstances of the case, the case did not deserve the severe disciplinary action for six months and the ends of jusice would be served by letting of the advocate with a warning.
Judgement
GHULAM HASAN, J. :
Mr. Shiva Narain Jafa, an Advocate practising at Budaun, has appealed against the decision of a Full Bench of the Allahabad High Court suspending him from practice as an Advocate for a period of six months under the provisions of the Indian Bar Councils Act.
2. It appears that in 1942 one Ganesh was prosecuted before Mr. N P. Sanyal, Assistant Sessions Judge. Budaun, under S. 376, Penal Code, read with S.511. Penal Code, for an attempt to commit rape upon a Chamar woman called Himman. His defence was a denial of the offence and the improbability of his attempting such an offence owing to his physical defect. He attributed his implication in the offence to his enemies. Ganesh was convicted and sentenced to 5 years rigorous imprisonment, but his sentence was reduced on appeal by the High Court to one year s rigorous imprisonment. Mr. Jafa represented Ganesh at the trial. It was in connection with his conduct as an Advocate in the trial that Mr. Sanyal complained to the High Court for taking disciplinary action against Mr. Jafa for professional misconduct. The High Court directed the District Judge. Pudaun under S. 10(2). Bar Councils Act to hold an inquiry into the conduct of Mr. Jafa with reference to the allegations made in Mr. Sanyal s complaint. The District Judge framed several charges and reported as a result of his findings that Mr. Jafa should not be allowed to continue as a member of the Bar.
3. The main charges are stated to be three. Under the first charge there are eleven subsidiary charges indicated by letters A to K of which seven refer to the Advocate s conduct in connection with the trial of Ganesh in the Court of Mr. Sanyal. The second charge is to the effect that the Advocate was in the habit of putting scandalous and obscene questions to women witnesses and is based partly upon questions put to Himman in the witness box and to a witness in another case in which action proposed to be taken against the Advocate was subsequently dropped. The third charge is that he deliberately raised groundless personal issues between himself and his clients on the one side and the presiding officers of courts on the other so as to pick up quarrels with them with the object of bullying and brow-beating them. The High Court acquitted the, Advocate of all the charges, save two, described as I-A & I-F.
4. The subsidiary charge I-A is that the Advocate made an application before the Assistant Sessions Judge asking for copies of the statements of certain witnesses examined by the Police under S. 162, Criminal P. C. Six of these had been produced before the Committing Magistrate and they were cited as witnesses to be produced by the prosecution at the Sessions trial. The seventh was Hulasi, the husband of Himman Hulasi had been produced before the Committing Magistrate but the prosecution did not propose to examine him in he Court of Session; In the application at No. 6 Himman was mentioned and Hulasi was also added as a witness, but was not separately numbered. The application in the opening paragraph stated that the statements of the undermentioned witnesses were required. The copies were supplied under the order of the Court. The charge against the Advocate was that Hulasi was not a witness who was called for the prosecution at the Sessions trial and therefore a copy of his statement could not under S. 162. Criminal P. C. be asked for or supplied but by misleading the Court into thinking that Hulasi was such a witness, the Advocate succeeded in getting a copy of his statement, This action of the Advocate is characterised by the High Court as a piece of sharp practice which was entirely unworthy of a member of the Bar and amounted to professional misconduct. The second subsidiary charge (I-F) which was held established by the High Court is that the Advocate had put a question to Babu Shiv Pershad, the Investigating Inspector in cross-examination in that case, whether he had been alone with Himman in her f
