VERY IMPORTANT POINT
Ameliorative relief of release on probation u/s 4 of the Probation of Offenders Act, in a case of conviction for offences of false personation and cheating was 419 and 420 of the Indian Penal Code, is not justified, considering that the accused indulged in interloping as a qualified counsel for a long period of 8 years without enrolment with any Bar Council and without any academic qualification to practice law.

Headnote:(i) Probation of offenders Act, 1958-Section 4 - Conditions for invoking reliefs under-Court must take into account circumstances of the case - Nature of offence and character of offender must have overriding considerations - While considering nature of offence, Court must have a realistic view on gravity of offence, its impact and whether considerations of deterrence can be overlooked - Word 'character' must be given ordinary meaning.
       Held that before the relief (envisaged in the provision) is granted court must take into account the circumstances of the case, among which "the nature of the offence and the character of the offender" must have overriding considerations. After bestowing judicial consideration on those factors, the court must form an opinion as to whether it would be appropriate in that case to release the particular accused therein as envisaged in the subsection. This Court has observed time and again through various decisions that the benefits mentioned in Sections 3 and 4 are subject to the limitations laid down in those provisions and that the word 'may' in Section 4 of the Act is not to be understood as 'must'. - (Para 9)
       Further held: When considering the nature of the offence the court must have a realistic view on the gravity of the offence, the impact which the offence could have had on the victims and whether considerations of deterrence can be overlooked etc. No fixed yard-stick can be laid down to measure the nature of the offence for affording or denying the reliefs envisaged in Section 4 of the Act. However, as the court is enjoined to take into consideration the character of the offender it is well to remember that character is not the abstract opinion in which the offender is held by others: The word "character" is not defined in the Act. Hence, it must be given the ordinary meaning. (Para 10)
       (ii) Indian Penal Code, 1860-Sections 419 and 420 - Offences of false personation and cheating-Conviction for offence under – Accused, without enrollment with any Bar Council and without any academic qualification to practice law, managed to get entry into legal profession - He practiced as an advocate for eight years - Magistrate released him u/s 4 of Probation of Offenders Act – Revision - Single Judge of High Court declined to interfere while directing accused to donate Rs. 15,000/- to Bar Association for buying books to their library - Special Leave Petition - Whether order releasing respondent accused u/s 4 of Probation of Offenders Act, was legally sustainable?-(No) - Award of imprisonment for six months under each count and a fine of Rs. 5,000/- each.
       Held: Character of the offender in this case reflects in the modality in which he was inveigling in a noble profession duping everybody concerned. In such a view of the matter the two courts could not have formed an opinion in favour of the character of the respondent. It is apposite to observe here that learned single judge did not mention anything about the character of the respondent qua the accusations found against him. (Para 11)
       While adverting to the nature of the offence we bear in mind the necessity to weed out imposters in the professions, which require special learning and training, particularly at a time when such imposters are proliferating in the society. Any leniency shown to such wiles would certainly tend to sprout up weeds at menacing scales. The case of the respondent is not one of single lapse or even multiple delinquencies confined to a few days. The long period of 8 years during which the moun-te-bank had successfully indulged in interloping as a qualified and learned counsel would have considerably eroded public confidence in the probity of the legal profession particularly in that area and besmirched the reputation of that Bar as the public might be looking upon every other member of the profession with suspectful eyes. The trial magistrate and the learned single judge, who found a repenting mind in the respondent, have failed to notice that repentance had dawned on him, even if that also was not a pretension, only when he reached a cul-de-sac When he was masquerading himself every day in sartorial costumes prescribed only for accredited members of the legal profession it did not occur to him even once during the long period of eight, years to think of repentance. On the contrary, he was flourishing at large and had, even become the. Secretary of the Bar Association If the vigilant Bar has not discovered the trickery perhaps he would still have persisted in this art of cheating. For all these reasons we are of the definite opinion that the crimes committed by him should have been dealt with deterrent and the ameliorative reliefs envisaged in Section 4 of the Act should have been kept at bay. (Para 12)
       We, therefore, set aside that part of the impugned - judgments by which respondent was released under Section 4 of the Act. For determining the measure of sentence to be passed on him we are not against taking into account those factors, which the learned single judge has found as mitigating grounds. Added to them is the long interval of time between the date of his conviction by the trial Court and now. For all these, imprisonment for six months and a fine would be sufficient to meet the ends of justice in this case. (Para 13)
       (iii) LEGAL PROFESSION - Imposters in profession - Necessity to weed out - Any leniency show to such wiles would tend to sprout up weeds at menacing scales -Crimes committed by such persons should be dealt with deterrently - Ameliorative reliefs envisaged in Section 4 of Probation of Offenders Act should have been kept at bay. (Para 12)
       Result: Appeal allowed accordingly.

JUDGMENT

Thomas, J-Nilgiris Bar Association (Tamil Nadu) is in no mood to reconcile with the easy escape made by an imposter in the legal profession from the penal clutches of law. Without enrollment with any Bar Council and without any academic qualification to practise law he managed to get entry into the legal profession by wangling a membership from the Nilgiris Bar Association, and flourished in his practice as an advocate before all the courts including sessions courts in the district' for a long period of eight years. But his hay days did not last longer as the vigilant Bar discovered that he was an interloper in the profession. A complaint was lodged with the police and after investigation a charge sheet was laid before the Judicial Magistrate concerned. He then adopted a strategy to skip out of the penal tentacles by pleading guilty to the charge and praying for mercy of the Court. The strategy worked as the magistrate released him under Section 4 of the Probation of Offenders Act 1958 (for short the Act).

2. The concerned Bar Association aggrieved by the manner in which they and the litigant public were hood-winked by the said person for a pretty long period, approached the High Court of Madras in revision challenging the order of the magistrate. A single judge of the High Court, after about ten years, passed the impugned order declining to interfere, but made an endeavour to console the Bar by directing the delinquent person to donate a sum of Rs. 15, 000/- to the Association for buying books to their library. The accused person promptly dispatched a bank draft containing the amount to the Bar Association but they with matching promptness spurned down the ill-gotten money and rushed to this Court with the Special Leave Petition seeking redressal of their grievances. Special leave is granted.

3. A few more facts may be necessary. Respondent (TK Mahalingam) approached the Nilgiris Bar Association in the year 1978 for admitting him as a member therein by representing that he was a qualified legal practitioner having enrolled himself with the State Bar Council. Without suspecting the bona fides of the application he was admitted to the membership of the Bar Association. He started his practice at the new station and built-up a good clientele and involved himself in all the activities of the Association. He contested for the post of Secretary and won it. In this way" he continued till 1985. But by then some members of the Bar who developed suspicion of his credentials made secret inquiries and discovered that he was imposturing as an advocate and his credentials were bogus. So they brought it to the notice of the Bar Association who, in an emergent meeting, decided to launch prosecution against him. Respondent, sensing the developments against him ducked out of the scene. A complaint was filed with the local police for offences of false personation and cheating etc. The police, after investigation, charge-sheeted the case for offences under Sections 419 and 420 of the Indian Penal Code.

4. Learned single judge of the. High Court, while disposing of the revision, expressed appreciation for the stand adopted by the Bar and praised their alacrity and perseverance for restoring the reputation of that Bar by cleansing itself from the dupe practised by the respondent. "However, learned single Judge advised the Bar to forget the past and conveyed his view that if such an act of magnanimity was shown, then the revered nobility of the legal profession will certainly be enhanced". After administering the said advice learned single judge made the following observations:

"While appreciating the stand taken by the Nilgiris Bar Association, to maintain purity in the profession, I am satisfied, that this is an act case where the petitioner has been rightly given an opportunity to reform himself and that such process of reform has commenced is evident from the conduct of the second respondent, who has expressed his repentance in writing

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Cases Referred (4)