Shiv Narain Jafa vs Hon'ble Judges Of High Court

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Appeal (civil) 25 of 1951

Decision Date: 15 May, 1953

Coram: Ghulam Hasan, M. C. Mahajan, B. K. Mukherjea, N. H. Bhagwati, B. Jagannadhadas

In this case the Supreme Court of India considered an appeal filed by Shiv Narain Jafa, who was an advocate practising in Budaun, against a decision of a Full Bench of the Allahabad High Court that had ordered his suspension from practice for a period of six months under the provisions of the Indian Bar Councils Act. The appeal was listed as Appeal (civil) 25 of 1951 and was heard by a Bench consisting of Justices Ghulam Hasan, M. C. Mahajan, B. K. Mukherjea, N. H. Bhagwati and B. Jagannadhadas. The judgment was delivered by Justice Ghulam Hasan.

The factual background began in 1942 when a person named Ganesh was prosecuted before Assistant Sessions Judge N. P. Sanyal in Budaun under sections 376 and 511 of the Indian Penal Code for an alleged attempt to rape a Chamar woman called Himman. Ganesh denied the charge, claiming that his physical defect made the alleged conduct impossible and that enemies had framed him. He was convicted and sentenced to five years’ rigorous imprisonment; on appeal the High Court reduced the sentence to one year’s rigorous imprisonment. Shiv Narain Jafa acted as Ganesh’s counsel at the trial. After the trial Assistant Sessions Judge Sanyal lodged a complaint to the High Court seeking disciplinary action against Jafa on the ground of professional misconduct.

The High Court responded by directing the District Judge of Pudaun, under section 10(2) of the Bar Councils Act, to conduct an inquiry into Jafa’s conduct as alleged in the complaint. The District Judge framed several charges and, after completing his investigation, reported that Jafa should not be permitted to continue as a member of the Bar. The principal charges were three in number. The first charge comprised eleven subsidiary allegations, identified by the letters A through K, of which seven related specifically to Jafa’s conduct during the Ganesh trial. The second charge asserted that the advocate habitually posed scandalous and obscene questions to women witnesses; this allegation was based partly on questions he asked Himman while she was on the stand and on questions he directed to a witness in another case, a matter in which the proposed action against him was later withdrawn. The third charge alleged that Jafa deliberately raised groundless personal issues between himself and his clients on one side and the presiding officers of courts on the other, apparently with the purpose of creating quarrels and subjecting those officers to bullying.

In this matter the High Court held that the Advocate was acquitted of every allegation except two, which the Court identified as subsidiary charges I-A and I-F. Regarding subsidiary charge I-A, the Court observed that the Advocate had filed an application before the Assistant Sessions Judge seeking copies of statements taken by the police under section 162 of the Criminal Procedure Code. The application sought statements of several witnesses; six of those witnesses had already been presented before the Committing Magistrate and were listed by the prosecution as witnesses to be produced at the Sessions trial. The seventh person named was Hulasi, the husband of Himman. Hulasi had also been produced before the Committing Magistrate, but the prosecution had indicated that he would not be examined in the Court of Session. In the Advocate’s application numbered six, both Himman and Hulasi were mentioned as witnesses, although Hulasi was not assigned a separate number. The introductory paragraph of the application stated that the statements of the “undermentioned witnesses” were required. Upon the Court’s order, copies of those statements were furnished. The charge against the Advocate was that Hulasi was not a prosecution witness at the Sessions trial and therefore, under section 162, a copy of his statement could not lawfully be requested or supplied. The Court found that by representing Hulasi as a prosecution witness, the Advocate misled the Court and thereby obtained a copy of his statement. The High Court characterized this conduct as sharp practice, wholly unworthy of a member of the Bar, and classified it as professional misconduct. The second subsidiary charge, I-F, was also sustained by the High Court. The Court found that the Advocate had, during cross-examination, put a question to Babu Shiv Pershad, the Investigating Inspector, asking whether he had been alone with Himman in her field until midnight or a late hour of the night. The Advocate denied having asked the question, but the Court determined that he indeed posed it and that the question was highly improper. The Court held that the query was irrelevant because the charge against the Inspector had already been made before the investigation began, and the suggestion that the Inspector had behaved improperly with the woman amounted to a scandalous allegation presented without any factual basis. Consequently, the Court deemed the Advocate’s conduct reprehensible and concluded that it constituted professional misconduct warranting disciplinary action. The remaining subsidiary charges were found to be unproved. One of those, subsidiary charge I-C, related to certain questions the Advocate attempted to ask Himman during cross-examination, which the Court disallowed as indecent and unnecessary. Those questions concerned, among other matters, the physical condition and characteristics of the accused Ganesh. The learned Judges observed that while the attempt to raise such questions reflected in part upon the Advocate’s capacity as a lawyer, there was insufficient ground to hold that he had deliberately intended to embarrass or harass the witness.

The Court concluded that the Advocate did not pose indecent questions to the witness solely for the purpose of embarrassing or annoying her. Regarding the first charge, the Court observed that under Section 162 of the Criminal Procedure Code the Advocate was not entitled to apply for and obtain a copy of the statement of Hulasi recorded by the police, because Hulasi had not been called to give evidence for the prosecution in the Court of Sessions. The Court considered two possible explanations for the Advocate’s action: either a claim of ignorance of Section 162, which seemed unlikely given the Advocate’s more than thirty years of standing at the Bar, or a deliberate attempt to obtain the copy in order to use it to contradict Hulasi’s testimony and to create a conflict with other prosecution evidence should the Advocate be called at any stage of the trial. Even if the latter motive applied, the Court noted that the Advocate might have believed, albeit erroneously, that he was acting in the best interests of his client and therefore acting in good faith. The Court further held that, irrespective of the Advocate’s motive, the trial Court had failed to exercise its jurisdiction by not refusing the application, contrary to the explicit provision of Section 162 which allows a copy to be furnished to the accused only of a witness who is called for the prosecution at trial. In the present case, the trial judge, Mr Sanyal, ordered the application to be complied with, and the Court clerk issued the copy. Afterward, Mr Sanyal blamed the clerk for gross negligence in issuing the copy, while overlooking his own responsibility for neglecting his clear duty. The Court therefore determined that the Advocate’s conduct in obtaining the copy could not be classified as sharp practice sufficient to warrant suspension from practice.

The Court further held that the second charge did not merit serious notice. Although the question raised by the Advocate contained a subtle insinuation concerning the Sub-Inspector’s alleged misbehaviour, the Sub-Inspector did not object to the question and the Court did not disallow it, exercising the jurisdiction it possessed to strike down questions deemed indecent or scandalous. The Advocate explained that the purpose of the question was to impeach the Sub-Inspector’s credibility in the conduct of the investigation, not to allege that the Sub-Inspector had deliberately instituted a false charge against the accused. Nevertheless, the question could be interpreted as an attempt to challenge the Sub-Inspector’s credit on other grounds, such as the use of questionable methods or a perceived partiality toward the woman involved. The First Information Report in this matter was lodged on 29-1-1942, shortly after the incident that occurred at 11 a.m. The Sub-Inspector proceeded to the village for investigation on 1 February. While the Sub-Inspector denied that he had remained with the woman for an extended period during the night in the field, his statements formed part of the evidentiary backdrop against which the question was posed.

In the evidence presented, the Sub-Inspector gave statements that were contradictory regarding the time of his return from the field. He initially claimed that he could not recall having recorded the exact time of his return in his diary, but suggested that the entry indicating a return at 11 p.m. might nevertheless be accurate. He further added that it was possible the time noted could be correct, thereby giving some support to the insinuation contained in the question posed to him. On a separate occasion, however, the Sub-Inspector asserted that he had actually returned at 7 p.m. The presence of these inconsistent statements created a factual uncertainty about his movements on the night in question. Nevertheless, the Court observed that this uncertainty did not render the question, which was intended to challenge the Sub-Inspector’s credibility, improper. The Court concluded that, despite the conflicting testimony, the line of questioning remained within the permissible limits of cross-examination and was not barred by any rule of propriety.

The Court then turned to the broader issue of whether the Advocate’s conduct warranted the severe disciplinary measure imposed by the High Court, namely a six-month suspension from legal practice. After examining all the material before it, the Court determined that the circumstances did not justify such a harsh penalty. While it acknowledged that the Advocate had not exercised the appropriate level of discretion in selecting certain questions for the Sub-Inspector, and that the subject matter and manner of the questions suggested a breach of the proper bounds of advocacy privilege, the Court deemed that a warning would be a more appropriate response. The Court expressed its disapproval of the Advocate’s over-reach but decided that a warning would suffice to correct future conduct. Accordingly, the Court set aside the High Court’s order of suspension, issued a formal warning to the Advocate, and declined to make any order as to costs.