O. N. Mahindroo Vs. Distt. Judge,
Delhi & ANR  INSC 176 (4 September 1970)
04/09/1970 HIDAYATULLAH, M. (CJ)
HIDAYATULLAH, M. (CJ) MITTER, G.K.
CITATION: 1971 AIR 107 1971 SCR (2) 11
RF 1980 SC 674 (8) R 1983 SC 990 (9) RF 1983
SC1125 (7) APL 1989 SC 245 (12)
Advocates Act 1961, ss. 44 and
10(3)-Review-Bar Council cannot review aecision of Disciplinary Committee Disciplinary
Committee's power of review-Grounds for review need not be similar or analogous
to those found in s. 114 or 0.47 R. 1 of Code of Civil Procedure Principles of
antrefois convict or antrefois acquit also not applicable Review petition must
be dealt with objectively-Review by Supreme Court, considerations for-Appeal to
Supreme Court under s. 38 Advocates Act, Scope of-Professional mis conduct Proof
The appellant was an advocate of this Court.
A complaint was made by the District Judge Delhi against him on 29th February,
1964 to the Bar Council of the State of Delhi alleging that he had mutilated a
document by tearing two pieces from it while examining a judicial record in the
courtroom in the presence of the junior clerk. The Bar Council of the State of
Delhi referred the matte, to its Disciplinary Committee. The explanation of the
appellant before the Disciplinary Committee was of the Judges and the staff of
the District Court, Delhi. He denied that the document was important or that he
mutilated it. He asked for summoning the torn document and the pieces but
onlythe document was received. According to the District Judge the pieces were
misplaced and could not be found. The Disciplinary Committee held the appellant
guilty of having mutilatedthe document on the basis of the oral evidence of the
junior clerk. Theappellant, thereupon, appealed to the Bar Council of India but
the Disciplinary Committee of the Bar Council of India dismissed the appeal.
His appeal to this Court under s. 38 of the Advocates Act was also dismissed at
the preliminary hearing. The appellant filed a review petition before the
Disciplinary Committee of the Bar Council of India but it was rejected. The
appellant then filed a writ petition in the High Court of Punjab (Delhi Bench)
challenging s. 38 of the Advocates Act and r. 7 and Or. 5 of the rules of this
Court as ultra vires Art. 138(2) of the Constitution. The writ petition was
admitted and a rule nisi was issued. Meanwhile this Court in dealing with a
review petition filed by the appellant had issued a notice to the District
Judge to find out the torn pieces. The District Judge reported that the
mutilated document was a copy of the lawyer's notice and that only a small
piece of half inch was missing from the bottom of the second page.
The pieces were not traceable. He also
reported that the junior clerk was not sure that anything was written on the
torn pieces but according to his recollection the words 'true copy' followed by
the signature Vir Bhan' were written. This. Court dismissed the review petition
on September, 26, 1966. The writ petition in the High Court was also dismissed
by a single Judge on October 12, 1966. In the proceedings it appeared that the
document in question had not been relied upon by the party which had filed it.
A letters patent appeal was filed against Single judge's judgment and order.
Before the Division Bench the validity of s. 38 of the Advocates Act alone was
challenged. The Division Bench dismissed the ,)peal but
CIVIL APPELLATE JURISDICTION : Civil Appeals
Nos. 2637 and 2638 of 1969.
Appeals by special leave from the order dated
July 12, 1969 of the Bar Council of India, New Delhi in Petition dated January
17, 1969 at item No. 42 of 1969 and from the order dated October 4, 1969 of the
Disciplinary Committee of the Bar Council of India in Review Petition No. 2 of
C. K. Daphtary, A. N. Mulla, Bishan Narain,
W. S. Barlingay, and O.N. Mohindroo, for the appellant (in both the appeals.).
M. Natesan, Uma Mehta, D. N. Misra and B. P.
Singh, for respondent No. 2 (in C.A. No. 2637 of 1969).
A.S. R. Chari and B. Datta, for the
intervener (in both the appeals).
The Judgment of the Court was delivered by
Hidavatullah, C.J.-The appellant in these two appeals is an advocate any of
this Court, who on complaint by the District Judge, Delhi, 29 February, 1964,
to the Bar Council of the State of Delhi, was held guilty of professional
misconduct and suspended from practice for a year by the disciplinary committee
of the said Bar Council. He appealed to the disciplinary committee of the Bar
Council of India under s. 37 of the Advocates Act. The appeal was dismissed.
His appeal to this Court under S. 38 of the Act was dismissed summarily at the
preliminary hearing. The charge against him was that while inspecting a
judicial record in the company of Mr. Kuldip Singh Advocate, he tore out 2
pieces of paper from an Exhibit (C-1). The pieces were thrown by him on the
ground. The clerk in-charge reported the incident to the District Judge and the
The suit, record of which was being
inspected, arose in the following circumstances. On February 6, 1963 Mr. Anant
Ram Whig, an advocate, sent a notice on behalf of one Sarin to a certain Ramlal
Hans and his wife claiming a sum of Rs.
4,3701as reward for the success of their
daughter at an examination including tuition fees. Sarin was preparing the girl
for the B.A. examination. The claim of Sarin was repudiated by Ramlal Hans in a
reply dated February 11, 1963. The matter was referred to the arbitration of
Mansaram, Municipal Councillor, Delhi by an
agreement dated February 24, 1963. The arbitrator gave an award for Rs.
1,000/in favour of Sarin. The award was filed
in the Court of Mr. Brijmohanlal Aggarwal, Sub-Judge, Delhi for being made a
rule of the court. Ramlal Hans' engaged 15 the appellant as advocate. The
appellant In his turn engaged two other advocates to conduct, the actual cases
and 'also filed his vakalatnama. A copy of the notice sent by Mr. Whig was
filed in the case (Ex. C-1) but was not yet proved.
On February 24, 196-3 the appellant went for
the, inspection of the record of the case in the company of his junior lawyer.
The file was given by Amrik Singh, the junior clerk of the Bench. Amrik Singh
then went out of the room but soon returned to his seat. Later he charged the
appellant of having torn 2 pieces from the document (which was Ex. C1) and
picked up the alleged pieces from the floor. Mr.
Aggarwal then arrived on the scene. The
statement of the appellant was recorded. The Sub-Judge also obtained reports
from his junior and Assistant clerks and made a report With the report he sent
the Exhibit said to be mutilated and the two pieces said to be the torn pieces
of Ex. C-1 in a sealed envelope. A complaint was also made to the District
Judge by Sarin. The District Judge then made a report and wrote that the
document was important in the case and action was, therefore, called for.
The disciplinary committee of the Bar Council
of the Union Territory of Delhi took up the matter under s. 35 of the Advocates
Act. The explanation of the advocate was called for. He explained that the
charge was false and it was due to the ill-will of Mr. Aggarwal and his staff
because earlier he had made some serious allegations against Mr.
Kalra, Sub-Judge Ill Class in a transfer
petition and had also started contempt proceedings. According to the appellant
this led to hostility between the judges and their staff and him. He denied
that the document was imimportant or that he had mutilated it. He asked inter
alia for summoning the torn document and the pieces and they were summoned. The
original document was received but not the pieces. The District Judge informed
the Committee that the pieces were misplaced and were not found. The appellant
maintained that they were put in the same envelope with the exhibit and he
alleged that they were suppressed to deny him a legitimate defence that they
were not a part of the same document.
Oral evidence was recorded. On the basis of
the oral evidence of Amrik Singh, the petitioner was held guilty of having
wantonly mutilated the document. The petitioner wanted to take a size to size photostat
of the exhibit but his request was turned down.
As stated already his appeal to the Bar
Council of India was dismissed by the disciplinary Committee of the Bar Council
of India and later his appeal to this Court was dismissed summarily 16 on April
18, 1966 at the preliminary hearing. Mr. A. K. Sen appeared for the appellant.
The appellant then seems to have lost his
head. He made successive applications of various kinds. He filed a review
petition on April 23, 1966 before the disciplinary Committee of the Bar Council
of India but it was rejected on April 29, 1966. The appellant then filed a writ
petition in the High Court of Punjab (Delhi Bench) on May 23, 1966 challenging
s' 3 8 of the Advocates Act and Rule 7 of Order V of the Rules of this Court as
ultra vires Art. 138(2) of the Constitution. The Writ Petition was admitted and
a rule nisi was issued. The appellant before this had filed' a review petition
in this Court and on September 12, 1966 this Court issued a notice to the
District Judge to find out the torn pieces. The District Judge reported on
September 22, 1966 that the mutilated document was a copy of a lawyer's notice
and that only a small piece of I" was missing from the bottom of the
second sheet. The pieces were not traceable. He also reported that the junior
clerk was not sure that anything was written on the torn pieces but according
to his recollection the words 'True copy' followed by the signature 'Vir Bhan'
were written, that this was not stated by him in his earlier statements, and
that the Assistant Clerk also said that according to his recollection something
'Was written in ink on those pieces but could not say what it was. The Supreme
Court dismissed the review petition on September 26, 1966. The appellant
appeared in person at the hearing.
The writ petition in the High Court was also
dismissed by a single Judge on October 12, 1966. The order shows that the
original of Ex. C-1 was not relied upon by Mr. Vir Bhan and that he had not
attempted to prove the copy, as there was no context about the notice. It was
contended before the High Court that-there was no motive to tear two tiny
pieces from a document which was not in issue. The High Court seemed to agree
with this but speculating as to possible motives held that in view of the
evidence of Amrik Singh, the question of motive was immaterial. The High Court
did not go further than this into facts.
The learned single Judge considered the
objection to the constitutionality of the rules of this Court and overruled it.
He held that questions of fact could not be gone into in view of the successive
appeals and review petitions dismissed by the appropriate authorities. A
Letters Patent Appeal was filed against the single Judge's judgment 'and order.
That appeal was heard by a Division Bench of the High Court of Delhi and
dismissed on December 22, 1966.
Before the Division Bench the validity of s.
38 17 of the Advocates Act alone was challenged. An objection on merits was
rejected because the order of the disciplinary committee of the Bar Council of
the Union Territory was said to have merged in the order of the disciplinary
committee of the Bar Council of India and later in that of this Court.
The High Court granted a certificate. This
Court was represented at the hearing in as it was made a party to the writ
The appeal filed in this Court as a result
(C.A. No. 240 of 1967) was dismissed by the Constitution Bench on January 8,
1968. Only the validity of s. 38 of the Advocates Act and rules of this Court
was considered. The hearing was on 14 and 15 December 1967. The appellant was
in person. The Bar Council of Delhi and their disciplinary committee were
represented by Mr. Avadh Behari Advocate, Mr. P. Rama Reddy and Mr. A. V.
Rangam represented the disciplinary committee of the Bar Council of India, the
Supreme Court (a party) was represented by Mr. Purshottam Tricumdas and Mr. 1.
N. Shroff and the Attorney General was represented by Mr. P. Tricumdas and Mr.
S. P. Nayyar. The hearing time was taken up by the appellant and Mr. Purshottam
Tricumdas, Mr. P. Rama Reddy argued for 10 minutes and Mr. Avad Behari was not
The appellant then tried another review
petition (No. 21 of 1968) on the basis of the fresh evidence and report of the
District Judge Delhi. This Court (on December 2, 1968) summoned the record and
allowed the petitioner to take photostats of the Ex.C-I. The appellant also
filed a writ petition under Art. 32 of the Constitution (W.P. No. 69 of 1968).
He first applied (C.M.P. 1171/68) for withdrawal of the writ petition and then
withdrew that application itself.
The two, matters were placed before the Court
on April 11, 1968 and at one time it appeared that Shri A. K. Sen had argued
both of them but later Shri A. K. Sen said he had only appeared in the writ
petition and not in the review petition and it was still undisposed of. As a
result on August 12, 1968, the review petition was ordered to be placed again
for hearing. On the Court observing that on the basis of new material, review
should be asked for from the Bar Council of India, the review petition was withdrawn
on January 6, 1969. The review application was not dismissed on merits.
The appellant then went before the Bar
Council asking for reconsideration of his case under ss. 44 and 10(3) of the Advocates
Act. The Bar Council passed an order through its Chairman (Mr. H. D.
Shrivastava). The Bar Council of India held that it had no jurisdiction of any
kind to reopen this matter ,although the embarrassment involved in
reconsidering the matter was removed by the observations of the Supreme Court.
According to the Bar Council the disciplinary committee was not acting 18 as a
subordinate delegate of the Council and the general power to safeguard the
interests of the Bar or any individual member could only refer to such
interests as had not 'been negatived by judicial process under the Advocates Act. The
petition was, therefore, dismissed. The Bar Council, however, went on to
observe ".............But we cannot part with this matter without
expressing our sense of uneasiness which arises from the production before us
of fresh material particularly a photostat of the document said to have been
torn by the petitioner. A look at the document opens out a .reasonable
possibility, that a reconsideration by the disciplinary committee of this
Council may lead to a different result. The petitioner may if so advised formally
ask for a review by the Disciplinary Committee." The appellant then again
applied for review of the order by the disciplinary committee of the Bar
Council of India. In a fairly long order the disciplinary committee declined to
reopen the case. The disciplinary committee found fault with the single ,Judge
of the High Court of Punjab for not rejecting the writ petition on the short
ground that the High Court could not issue a writ to the Supreme Court. The
disciplinary committee also found it necessary to comment upon the order of
this Court inquiring from the District Judge, Delhi how the pieces kept in safe
custody were lost.
The disciplinary committee also commented
upon the action of the District Judge in re-examining witnesses who had been
The Disciplinary committee pointed out that
in the second review petition decided by the Committee on February 26, 1967, it
refused to take into consideration the report of the District Judge as it was
not evidence in the case and because the Supreme Court also did not appear to
have acted upon it when dismissing the review petition before it. The Supreme
Court's order was not a speaking order but had merely dismissed the review
The disciplinary committee next considered
how the matter came before them. They refused to take into account a 'casual
observation' of the Judges in the course of arguments before them in the review
petition in this Court.
They speculated that parhaps the appellant
was advised to withdraw the review petition which otherwise would have had to
be dismissed. The Committee very reluctantly looked into the statements of
witnesses recorded by the District Judge when he reported about the loss of the
two pieces of paper.
The matter was heard and the disciplinary committee
took time to consider their order. The disciplinary committee held that in
considering review application to 19 themselves they should not be
over-technical and that they would have granted review if there was any
material on which it could be granted. They, however, observed :
"...... It is however axiomatic that no
Court or Tribunal can rewrite or alter its Judgment once a Judgment has been
signed and delivered.
We could entertain the review petition only
on some ground similar or analogous to those as mentioned in Section 114 and
Order 47 Rule I of the Code of Civil Procedure. But in this' case there is no
such ground available to the petitioner." They held that as the order of
the disciplinary committee had merged in the decision of the Supreme Court, a
review granted by them would be incompetent. Having held this two members went
on to consider the merits, a procedure with which the third member dissented.
His observations in the circumstances were quite correct. This is what he said
"If what the petitioner says about the
observations of the Supreme Court that his remedy should be by a Petition for
review, is correct, the forum lies elsewhere and we cannot just entertain it.
In this view of the matter the observations made by the Bar Council of India in
their resolution dated 12th July, 1969, which are entitled to our respect, may
well be left alone mad (sic) need be commented upon." The majority of the
disciplinary committee however refused to be guided by the observations of the
Bar Council of India. They observed that looking at the photo stat copy did not
advance the matter any further and they had previously seen the original itself
and on the evidence they were satisfied that there was some writing on the
pieces to show that it was a true copy signed by the attest or. This was proved
by the evidence of Mr. Vir Bhan accepted by the disciplinary committees of the
two Bar Councils. They discarded the fresh evidence' of the two clerks as not
of any use to the appellant. They went to the length of saying "Even if
these witnesses had entirely contradicted their earlier statements that would
not have been a ground for review. . . .".
Having said this they went on to say:
"........ However in the present case we
have also examined the depositions recorded by Shri Jagjit Singh and we do not
find any substantial difference between 20 what they had stated earlier and
what they stated before him." The fact that writing on the pieces was not
mentioned earlier by the clerks was not noticed. The majority then severely
commented upon the conduct of the appellant in charging the subordinate
judiciary with hostility and held this to be 'frivolous and unworthy of
notice.' They observed as follows "Even in our earlier Judgment we pointed
out that a defence of this nature calculated to de deter and intimidate responsible
officers from discharging their public duty was highly reprehensible."
They accordingly dismissed the review application expressing the hope that that
would be a close to this chapter. In two paragraphs thereafter the majority
commented strongly on other conduct of the appellant in court cases and outside
it which according to them was deplorable. It is obvious that the disciplinary
committee was annoyed at the repeated attempts of the appellant to have his
case reconsidered by the superior authorities and the hearing he had got.
From the respective orders of the Bar Council
of India and the disciplinary Committee, these two appeals are brought.
We granted special leave in the matter
arising out of the Bar Council's order limited to the following two questions
"(1 ) Whether the Bar Council has no jurisdiction to direct the
Disciplinary Committee to rehear the matter; and (2)Whether the Disciplinary
Committee was right in not considering the matter afresh." In the other
appeal the question is : whether the disciplinary committee was right in
refusing review and whether we should, therefore, review the matter our selves,
if we are satisfied that the case deserves it.
In so far as the jurisdiction of the Bar Council
of India is concerned we think the Bar Council acted correctly when they
refused to review the matter themselves. For the Bar Council to do so would be
an exercise of appellate power.
That power the Bar Council of India does not
possess. But the Bar Council of India was right in saying that the question
raised before themselves was sufficiently important for reconsideration and
recommending it for reconsideration to their Disciplinary Committee.
The provisions of the Advocates Act are no
doubt precise in the matters of appeals and review. In all cases tried by the
21 Disciplinary Committee of the Bar Council of a State (which term includes
the Union Territory of Delhi) an appeal lies to the Bar Council of India. The
appeal is, however, heard by the Disciplinary Committee of the Bar Council of
India and they dispose of it as they deem fit. The Act does not say that the
Disciplinary Committee is a reporting body and the executable order must be
made by the Bar Council of India. This is made clear by the section that
follows. It speaks of an appeal-, to this Court against the order of the
Disciplinary Committee. It an order of the Bar Council were intended to be
interposed (whether endorsing or refusing to endorse the order of the
Disciplinary Committee) one would expect the appeal to this Court to lie
against the order of the Bar Council. But in the initiation of the proceedings
and again in the matter of appeal, the Bar Council is mentioned and not the
disciplinary Committee. Indeed under ss. 35(1) and 36(1) the Bar Council of the
State or of India, as the case may be, must be satisfied that a prima facie
case exists before they will refer the matter to their Disciplinary Committee.
This is in keeping with the jurisdiction of the Bar Councils of the States laid
down by s. 6 (1 ) (c) under which Bar Council is to entertain and determine
cases of misconduct against advocates on its rolls and under cl. (d) with the
duty to safeguard the rights and privileges and interests of advocates on its
rolls. In regard to the Bar Council of India the same position obtains under s.
7 (1) (d) (which is ipsissima verba with the corresponding provisions of s. 6)
read with s. 7(1) which lays down the jurisdiction of the Bar Council of India
to deal with and dispose of any matter arising under the Act.
Therefore the general superintendence of
ethics and etiquette of the profession and questions of misconduct of the
members are not wholly outside the ken of the Bar Councils of the State or of
India and are always within their respective jurisdictions.
Next, the appeal to this Court is not a
It is not an appeal on law alone but also on
fact. Indeed s. 38 gives the Supreme Court jurisdiction to pass in such appeals
any orders it deems fit. Therefore the appropriate Bar Council or this Court do
not act wrongly if they entertain subsequent petitions from a person whose case
has been dealt with by a disciplinary committee.
The power of review is expressly granted to
the Disciplinary Committee of the Bar Council which may on its own motion or
otherwise review any order passed by it. The word otherwise is wide enough to
cover a case referred by the Bar Council for review. There is a proviso which
makes the Bar Council.
of India the final judge because no order of
a disciplinary committee of a 22 State Bar Council on review has effect unless
it is approved by the Bar Council of India.
The powers of review are not circumscribed by
the Act. The analogy of the Civil Procedure Code must not be carried too far.
Such powers may 'be exercised in a suitable case for or against an advocate
even after the matter has gone through the hands of the Disciplinary Committee
at some stage or even through this Court. These matters are also not governed
by the analogy of autre fois convict or autrefois acquit in the Code of
Disciplinary proceedings against a lawyer
involve not only the particular lawyer but the entire profession. The reputation
of the legal profession is the sum total of the reputation of the
practitioners. The honour of the lawyer and the purity of the profession are
the primary considerations and they are intermixed.
During the hearing we gave an illustration
which we may also give here. Suppose an advocate is charged with embezzling the
money of his client. The advocate pleads that he paid the money in cash to the
client and obtained his receipt but the receipt is misplaced and he cannot find
it. He is disbelieved by the Disciplinary Committees and even by this Court.
Subsequently he finds the receipt and wishes to clear his good name. The matter
can be gone into again on the fresh material. It is not only his right but also
the duty of the those including this Court to reconsider the matter. The Bar
Council in any event can restart the matter to clear him whether before any of
the authorities which dealt with the matter before.' The facts in the
illustration may be reversed to see the converse position where an advocate
gets off on a false plea of not having received the money at all, if he can be
successfully confronted with his own receipt which the client had misplaced and
could not lay hands upon in the first instance.
From this it follows that questions of
professional conduct are as open as charges of cowardice against Generals or
reconsideration of the conviction of person convicted of crimes. Otherwise how
could the Hebron brothers get their conviction set aside after Charles Peace
confessed to the crime for which they were charged and held guilty? The fact of
the matter in this case is that too much emphasis was laid on the oral evidence
of a clerk who alone Raid that he had seen the appellant tear two pieces from
C.I. The Advocate's denial was not accepted
although there was word against matched the tear. There was on evidence that
the pieces found on the floor matched the tear. No witness spoke of having
taken the elementary care of matching the pieces with Ex. C-I. Indeed the
pieces 23 having been lost the only corroboration regarding the pieces has
disappeared. The only corroboration now is that the edges of Ex. C-1 show such
The question is whether this by itself is
sufficient. There is no evidence against the appellant except that of Amrik
Sin-h. It is true that there is no personal allegation against him of
harbouring any grudge or hostility beyond saying that the staff of the Courts
were against the appellant. As against this, one consideration is what was the
gain to the appellant by tearing the tiny pieces ? We shall presently show how
tiny they were. The charge is a serious one; and we have to see the matter in
the whole setting of the evidence. The document said to be torn is a copy of a
notice which Sarin's Counsel had sent to the opposite side. The counsel for Sarin
said that he had not proved the document. Further the original notice could be
summoned. Exhibit C-1 was in two sheets 30.5 cm. x 20.5 cm.
and 34.6 cm. x 21.5 cm. The second sheet was
extraordinarily long and its edges appear very much frayed. It was suggested at
the hearing it must have protruded from the rest of the file and thus got
damaged in the handling of the file. This was not given due weight.
We have examined the document carefully. It
is a carbon copy of a notice. The document ends thus :
Note : Copy of this notice' is being sent
under postal certificate to your wife.
Yours faithfully, The tear occurs 1.5 cm. to
the left of 'ficate' and ends below the letter 'A' in 'postal'. The letters of
',faithfully' are missing except for the head of 'f' and so also letters 'der'
in 'under' and parts of 'P' and 'o' in 'postal' are missing. The complainant
claimed that the document had an attestation 'true copy' followed by a
signature and that it had been torn out. The two clerks who had seen the pieces
do not definitely say that the pieces had any writing and as the pieces have
disappeared we cannot get corroboration. They had originally not said this but
now at a later stage they have deposed about the writing on the pieces. We have
therefore, done the best to discover the truth. This is the result of our observations:
The document is a rectangular foolscap sheet,
rather old paper which is frayed along the edges. As the fraying edges were
falling off we have secured them with transparent scotch tape. One piece
actually fell off when the papers was being examined by us but the piece has
been secured in situ with scotch tape. Another piece found in the file could
not be matched' 24 and has been secured in the margin with scotch tape so that
it may not be lost. It-belongs to the same paper. Now for a description of the
Fortunately the machine cut edges are
available on all four sides enabling us to measure the paper and to find out
the exact .measurements of missing parts. This will enable us to find out if an
attestation and a signature could have been written at all on these papers. It
is obvious that the tearing if deliberate, as .is suggested, must have been to
tear out not the blank space left .on the bottom of the typewritten portion but
of some writing, typed are manuscript.
The paper is exactly 34.6 cm. x 21.5 cm. As
no portion is alleged to be torn from the top or the sides we may ignore the
measurement of the breadth except to compare it with the tear. The tear today
is found along 17.5 cm. out of the total breadth ,of 21.5 cm. We have already
said that except for 1.5 cm. to the left of the letters 'ficate' the tear falls
directly below the .typed portion and that is 15.5 cm.
in length. 7.5 cm. are below the portion
where the last line of typing 'ficate' to your wife' and the words 'yours
faithfully' occur. The bottom of these typed letters are exactly 34.4 cm. from
the top leaving a strip which would be .2 cm. In other words out of a tear of
17.5 cm., 8 cm.
allow only a space of .2 cm. for any writing.
Now for the remaining 8 cm. This is made up
of 2.5 cm.
below 'tal certi' which is almost whole and
there is no writing on this portion. That leaves a tear of 5.5 cm.
measures lengthwise where there is no typing
on top. This is made up of 3 traingular portionsjoined by the .2 cm.
strips below typed portions. 1st triangle is
2 cm. iin length with 1 cm. perpendicular from apex to base. The second is 3.2
cm. base with a perpendicular of 1 ,cm. and the third is 2.8 cm. by 1 cm.
Therefore out of the total length of 17.5
cm., 7.5 cm. is a strip uniformly of .2 cm. There are 3 triangles, in length
respectively 2 cm., 3.2 cm. and 2.8 cm. with the height almost at the centre in
each case I cm. The photo stat of the document is an annexe and can be seen
also. We took the measurements from the original. It is easy to see how small
will be space for writing. The three triangles of which only 2 could be hold to
be torn by the appellant could not have contained the words of attestation and
signatures. The one of the extreme left is so situated that no one would write
there an attestation. The three triangles are separated by 4 cm. and 3.5 cm.
and it is impossible to think that the attestation was written in one triangle
and the signature in another for there was not enough space to write them 25
one above the other even if one could cramp in one line.
Further with the typing having gone to .2 cm.
from the bottom anyone wishing to write an attestation would ordinarily write
it in the margin where plenty of space was available and that is the usual
course lawyers adopt when the writing goes right down to the bottom. We are,
therefore, satisfied that there was no writing on the pieces and the halting
testimony of the 2 clerks should not have been accepted without corroboration.
They said nothing about it when they were first examined.
The sum total of our observations may now be
stated. The document was merely a copy of which the original could be summoned.
One sheet was unduly long and was likely to protrude from the file of papers
and thus liable to get frayed. It is frayed and the paper is showing more tears
today. The typing had gone to the very bottom of the paper and there was not
sufficient space to write in a natural hand the attestation and to sign it.
There was blank paper in the margin where the attestation could be conveniently
written and signed. The document was not necessary for the decision of the case
and Mr. Vir Bhan had not even attempted to prove it. It was being inspected to
find out the original case of the claimant after the case had gone to
arbitration and there was an award. Nothing was to be gained by tearing it or
even by tearing out the attestation even if there was. one. of course it would
be improper even to tear out the blank portion but no one indulges in such a
silly and useless act. There was serious allegation against a judge of the
court and there was a possibility of the appellant being the target of
hostility and the evidence against him was of a single clerk. There was word
The question that arises is what are we to
do. We have held above that the disciplinary committee could be asked to
reconsider the matter by the Bar Council. The order of the disciplinary
committee does show that although they held that the Bar Council had acted
without jurisdiction, they went on to express their satisfaction with what they
had already done. The reexamination was not made objectively but with the
intention of reaffirming their decision by every argument for it. No attempt
was made to find whether the circumstances were such that the .appellant could
be said to have proved satisfactorily the contrary of what was held or had
created sufficient doubt in the matter. The earlier findings were affirmed when
there was no need to do so as the petition for review was held incompetent.
At the hearing before us the Bar Council of
India applicared and supported the case of the advocate. Mr. Natesan said that
in the opinion of the Bar Council, it would be proper for this Court to go into
the matter. Previously the Bar Council had 26 probably supported the case
against the appellant. The stand of the Bar Council in the case before us was
this "The Disciplinary Committee of the Bar Council, while finding that it
has no jurisdiction to review the matter in view of the prior appeal to this
Court, has gone also into the merits of the case, examined it elaborately with
reference to the material stated to be new matter and has come to the same
conclusion. The question that now arises is whether the Supreme Court can
review the matter itself in this appeal when the Disciplinary Committee had no
jurisdiction, and set aside the order made by the Disciplinary Committee on the
merits. It may be a different thing if this Court now reviews the order in the
light of the materials placed before the Court after the production of the
original document stated to have been torn which ex facie shows that it could
not have been deliberate or wanton".
Another body of lawyers, namely, the Bar
Association of the Supreme Court sought permission to intervene and were heard.
Mr. A. S. R. Chari on behalf of the
Association strongly supported the advocate's case. Thus we have the entire Bar
of the country and the entire Bar of this Court unanimously asking this Court
to go into the matter.
It appears to us, therefore, that the Bar
Council of India does not wish to oppose the review by us of our order and
indeed they invite us to grant relief to the appellant.
Ordinarily we would have been unwilling to
grant a review after this Court had declined to do so on in earlier occasion.
But the Circumstances are different. Our view of the matter is also that the
charge of deliberately and want only mutilating an important document in a
judicial file has not been as clearly made out as one would wish. This Court on
earlier occasions, taking the fact,,-, from the order of the disciplinary
committees, declined to interfere as no question of law was involved. It
decided the, appeal summarily without issuing notice or sending for the record
There is force in the contention that at advocate is entitled to a full appeal
on facts and law under s. 38 of the Advocates Act. Since the disciplinary
jurisdiction of the High Court has been taken away a right of appeal to this
Court has been substituted. This Court must in all cases go into the matter to
satisfy itself that justice has been by the disciplinary committee or
We find some unusual circumstances facing us.
The entire Bar of India are of the opinion that the case was not as
satisfactorily proved as one should be and we are 'also of the same 27 opinion.
All processes of the court are intended to secure justice and one such process
is the power of review. No doubt frivolous reviews are to be discouraged and
technical rules have been devised to prevent persons from reopening decided
cases. But as the disciplinary committee themselves observed there should not
be too much technicality where professional honour is involved and if there is
a manifest wrong done it is never too late to undo the wrong. This Court
possesses under the Constitution a special power of review and further may pass
any order to do full and effective justice. This Court is moved to take action
and the Bar Council of India and the Bar Association of India are unanimous
that the appellant deserves to have the order against him disbarring him from
practice set aside.
Looking at the matter for ourselves we find
that the document said to be mutilated was not needed for the case.
In any event it was only a carbon copy and
not an original.
No part of the typed portion was damaged
except very slightly. The tear in two places equal to a third of a small
postage stamp are the subject of the charge. In our opinion there was most
probably no writing there as there was hardly any space available and the whole
of the margin was available to write the attestation of 'true copy'. The clerks
did not speak of any writing at first and now too in a very halting, manner. No
steps were taken to match the alleged pieces with the tears and the pieces have
not been preserved. Thus there is the word of Amrik Singh against that of the
appellant. There was a background of hostility which the appellant had created
by his aggressive action in other cases. Whether he handed the paper roughly
and a piece came off which lie threw down without noticing it or the paper gave
way and a piece fell (as it did when we handled it) it is not possible to say
with definiteness. We find it difficult to believe that this multilation,
without any rhyme or reason, was done with a sinister motive. This is the
unanimous view of the entire Bar of India speaking through Counsel.
Our duty is clear. We would have paused to
consider the law applicable to reviews in such matters but we do not think
should ascertain it in this case. This matter is one of the ethics of the
profession which the law has entrusted to the Bar Council of India. It is their
opinion of a case which must receive due weight. The Bar Council thinks that
the decision against the appellant is unsustainable. We see no reason to differ
from them. We accordingly grant review in this case and set aside the order
disbarring the appellant from practice which had been passed. against him.
There shall be no order about costs.