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SUPREME COURT OF INDIA
17th October, 1956
JAGANNADHA DAS, VENKATARAMA AYYAR AND SINHA, JJ.
In re M an Advocate
Advocates appeared
Mr. Purshottam Tricumdas, Senior Advocate, Mr. B. B.Tawakley, Senior Advocate (Mr. G. C. Mathur and Mr. K. P. Gupta, Advocates, with them), for Advocate; Mr. M. C. Setalvad, Attorney-General for India and Mr. B. Sen, Senior Advocate Assisting the Court.
Appropriation by Advocate on record of Surplus Paper Book Cost towards fees-Legality-Whether professional misconduct.
Shri M was originally an Agent of the Supreme Court and became an "Advocate on record" under the new rules of the Suprem9 Court which came into force on January 26, 1954. While an Agent of the Supreme Court he filed a criminal appeal on behalf of the complainant A who was the appellant in that appeal. A sum of Rs. 750/- was supplied to Shri M for the printing charges therein. This sum was deposited in due course in the Punjab High Court from whose judgment the appeal arose. There remained an unspent balance of Rs. 242/1/9 out of it. Shri M withdrew that money from the High Court without the authority and the knowledge of the complainant. When, later on, the complainant became aware of it, he demanded refund of the same. Shri M first denied receipt of the money, and thereafter refused to refund it (claiming, as appeared later in the evidence, to have appropriated it towards the balance of fees said to be due to him). Charges were framed against Shri M by a Special Bench of the Supreme Court constituted for this purpose. The main charge No.3 was to the following effect.
"That you after receiving the sum of Rs. 242/1/9 in March 1952., retained the said sum, without any intimation to your client Attar Singh and without claiming any amount as due from him by way of fees to you and without lodging a bill for taxation against him for a period of over three years."
The following facts were held proved: Without the knowledge of or intimation to Attar Singh, Shri M obtained in March 1952 from the High Court the unspent balance of printing charges deposited by him on behalf of his client Attar Singh amounting to the sum of Rs. 242/1/9. He retained the same without any intimation to his client and without making a demand or lodging a bill for any amount as due from him by way of fees. The fact of his having obtained the refund became known to Attar Singh for the first time only by the letter of the Punjab High Court to him and it was only when Shri M was confronted with the same that he raised the question of payment of fees with Attar Singh. Prior thereto he denied receipt of any such moneys when asked by his client about it and did not make any demand for fees. In fact he appropriated that amount, on receiving it, without any demand for fees or lodging a bill for taxation and without the knowledge and consent of the client.
Held: (1) On the facts found the Advocate was guilty of professional misconduct and must be suspended from practice.
The high standard of professional conduct contemplated by Rule 30 of Order IV of the Supreme Court Rules virtually made an Advocate a trustee for his client in respect of all his moneys which came into his hands except what was specifically earmarked for fees. Any lien which he might have under the rules would not justify the appropriation of any such money towards his fees without the express or implied consent of the client or an order of Court.
Nor could the Advocate, in absence of a prior settlement of fees, constitute himself a judge in his own cause and determine what would be reasonable fees payable to him. It might be that in certain circumstances he was entitled to exercise the lien, but he had to give reasonable intimation both of the fact of moneys having come into his hands and of the exercise of the lien over them until his account was settled.
The principle of trusteeship applied with greater force when the surplus money, as in the present case, was meant for a specific purpose, it being well settled that in respect of such money there could be no lien either in the common law or the statute. (2) In a case such as the present, the standard applicable to an Agent under rules 31 and 32 of the old rules would be the Same
(3) As the Supreme Court Rules did not specifically prescribe any procedure for cases coming under Rule 30 of Order IV of the rules in the present case the procedure as in a warrant case under section 251-A (as amended) of the Code of Criminal Procedure should be adopted as far as possible subject to such just and expedient modifications as accorded with the rules of natural justice. - Supreme Court Rules (1950) (as amended), Order, 4 Rule 30--Procedure-Professional misconduct.
Judgement
JAGANNADHADAS J. - These proceedings before us arise out of a summons under Order IV, Rule 30 of the SC Rules, 1950 (as amended) issued to Shri M , who was originally an Agent of this Court and became an "Advocate on record" under the new rules of this Court which came into force on January 26, 1954. The summons issued calls upon him to show cause why disciplinary action should not be taken against him. It arises on a complaint against him made to the Registrar of this Court by one Attar Singh on December 5, 1955. The substance of that complaint is as follows. The complainant was the appellant in Criminal Appeal No. 12 of 1950 in this Court. Shri M acted for him in connection with the appeal. A sum of Rs. 750 was supplied to Shri M for the printing charges therein. This sum was deposited in due course in the Punjab High Court from whose judgment the appeal arose. There remained an unspent balance of Rs. 242-1-9 out of it. Shri M withdrew that money from the High Court without the authority and the knowledge of the complainant. When, later on, the complainant became aware of it, he demanded refund of the same. Shri M first denied receipt of the money, and thereafter refused to refund it (claiming, as appears later in the evidence, to have appropriated it towards the balance of fees said to be due to him). This complaint was in the usual course put up before his Lordship The Chief Justice who directed the Chamber-Judge, our learned brother, Bhagwati J., to enquire into it. Notices were issued there upon both to Shri M and the complainant as well to three other Advocates of this Court who happened to be associated with that appeal. The enquiry before the learned Judge was fairly elaborate. Thereat, certain conclusions were reached on the basis of which charges were framed against Shri M . The present summons, to Shri M is with reference to those charges and this Bench has been constituted as a Special Bench under Order IV, Rule 30 of the SC Rules to deal with this matter. The learned Attorney- General has appeared, on notice, to assist the Court.
2. The rules of this Court do not provide for the procedure to be adopted in such cases, except to say that the Court shall issue, in the first instance, a summons returnable before the Court or before a Special Bench to be constituted by the Chief Justice to show cause against specified matters". There have been no precedents of this Court so far, to indicate the exact procedure to be adopted. The only previous case of professional misconduct on summons under Order IV, Rule 30 of the SC Rules which this Court had occasion p73 to deal with, was that reported In the matter of G , a Senior Advocate of the SC, 1955-1 S. C. R. 490:. But that was a case in which action had been duly taken against the Advocate by the, Bombay High Court in connection with alleged misconduct arising within its jurisdiction. The summons issued to the Advocate by this Court was with reference to the same matter but as regards his position as a SC Advocate. (We understand that there were also two such cases in the Federal Court.) In the normal course, and in view of the rather elaborate enquiry which was held by our learned brother, Bhagwati J., we should have been content to confine ourselves to a mere hearing of arguments on the material recorded in that enquiry and come to our own conclusions with reference to the charges set out in the summons. But at the outset, objection was taken to our adopting such a course. The validity of the summons was questioned. It was said that under Order IV, Rule 30 of the SC Rules, the enquiry was to follow a summons which is contemplated as the first step therein. It was also said that the enquiry having been in Chambers, the statements of witnesses were not on oath. The learned Attorney- General was also inclined to think that there was force in the objections raised. After discussion in court with the Advocates on both sides we felt it desirable to refra
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