Manak Lal vs Dr. Prem Chand

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 246 of 1956

Decision Date: 06 February 1957

Coram: P.B. Gajendragadkar, S.K. Das

In this matter the petitioner, Manak Lal, lodged a complaint alleging professional misconduct against an advocate of the Rajasthan High Court, identified only as M. The Chief Justice responded to the complaint by constituting a tribunal under the Bar Councils Act to investigate the allegation. The tribunal was chaired by a senior advocate, designated as C, who had previously appeared on behalf of the petitioner in the trial court in the very case that gave rise to the present complaint. No party objected at that time to the composition of the tribunal, and the tribunal proceeded to examine the charges. After its enquiry, the tribunal concluded that M had obtained a false stay order in favour of his clients by means of an improperly prepared document that had been written by the clerk of the court. The tribunal pronounced M guilty of this misconduct. The Rajasthan High Court thereafter agreed with the tribunal’s finding and issued an order directing that M’s name be removed from the roll of advocates.

The respondent, M, challenged the validity of the tribunal on the ground that it had been improperly constituted. The Court examined the challenge and observed that a serious defect existed because C, who acted as the chairman of the tribunal, was also a member of the same tribunal and had previously represented the petitioner. The Court reiterated the well‑settled principle that every member of a tribunal that decides questions in judicial or quasi‑judicial proceedings must be capable of acting impartially, objectively and without bias. The Court explained that the relevant test is not whether an actual bias affected the decision, but whether a reasonable person could apprehend that bias might have influenced the outcome. In this sense the Court recalled the maxim that justice must not only be done but must also appear to be done, citing the authorities Frome United Breweries Co. v. Bath Justices, Rex v. Sussex Justices, Ex parte Mc Carthy, Rex v. Essex Justices, Ex parte Perkins and Rex v. Williams, Ex parte Phillips. The Court further held that an objection to the tribunal’s composition may be waived, but such a waiver can be inferred only if the party knew the relevant facts and was aware of the right to raise the objection. Since M was aware that C had previously appeared for the petitioner and was therefore conscious of his legal rights, his failure to object to C’s appointment was taken as a waiver of the objection. Consequently, the Court affirmed that the tribunal’s constitution, though infirm, did not invalidate the proceedings, and the order removing M from the roll of advocates remained justified.

The Court observed that when a party fails to raise an objection before a tribunal, that failure operates as an effective waiver of the right to object later. This principle was supported by the authority in Vyuyan v. Vyuyan (1861) 30 Bev. 65; 54 E.R. 813. The Court further explained that even in quasi‑criminal proceedings every material and relevant piece of evidence must be placed before the tribunal, although the decision as to which witnesses are indispensable for the case generally rests with the prosecutor. Consequently, the Court held that no adverse inference could be drawn against the complaint merely because a witness, who was essentially an accomplice, was not examined. In the present matter the High Court’s order removing the advocate identified as M from the roll of advocates was deemed fully justified. The Court described the misconduct proved against M as being of a very serious character and emphasized that such unworthy conduct must be condemned emphatically. The legal profession, the Court noted, must be protected from individuals who show no hesitation in corrupting public officers through illegal and disreputable means for the benefit of their clients.

In the judgment of the Civil Appellate Jurisdiction, Civil Appeal No. 246 of 1956, the Court considered an appeal filed by special leave from the order dated 11 November 1955 of the Rajasthan High Court in Civil Miscellaneous Case No. 3 of 1952. The appellant, Sri Manak Lal, was an advocate practising at Soiat. A complaint was lodged against him under section 13 of the Legal Practitioners Act by Dr Prem Chand Singhvi, alleging professional misconduct and seeking appropriate disciplinary action. Because the appellant was an advocate of the High Court of Rajasthan and not a pleader or mukhtear, the complaint was referred to a tribunal nominated by the Chief Justice of the Rajasthan High Court under section 10(2) of the Bar Councils Act. The tribunal conducted an enquiry, recorded evidence, and unanimously concluded that the appellant was guilty of professional misconduct for obtaining a false stay order through improper means, thereby securing an illegal and undue advantage for his clients and meriting punishment. The High Court accepted the tribunal’s findings and ordered the removal of the appellant from practice. The appellant challenged this order by special leave. The Court noted that the factual backdrop of the complaint was limited to a dispute over the Jhalra well and adjacent agricultural plots between Pukhraj and others on one side and Dr Prem Chand and others on the other, parties identified in the proceedings as Party No. 1 and Party No. 2.

In the dispute concerning the well at Jhalra and the surrounding agricultural plots, the appellant acted as counsel for Party No. r. The police, fearing that the conflict might lead to a breach of the peace, submitted a report to the Sub‑Divisional Magistrate in Sojat recommending that proceedings under section 145 of the Code of Criminal Procedure be initiated. Acting on that recommendation, the Sub‑Divisional Magistrate issued a preliminary order on 5 July 1951 (Exhibit A‑1). That order directed both parties to file written statements setting out their respective claims to possession of the disputed property, and it also ordered that the property be attached pending the resolution of the criminal‑procedure proceedings contemplated under section 145.

A subsequent order dated 9 August 1951 directed that the crop presently growing on the field be auctioned, that the proceeds of that auction be deposited with the court, and that the land itself be allotted for cultivation to the highest bidder for the following year. The hearing on these matters was scheduled for 21 August 1951. Dissatisfied with the magistrate’s orders, members of Party No. 1, through their counsel —the appellant—filed a revision application before the Sessions Judge of Pali on 13 August 1951, challenging those orders. The appellant then presented an additional petition on 29 August 1951, asserting that the crop on the disputed fields belonged to the cultivators identified as Party No. 1, that the crop was in danger of spoilage, and that the cultivators would suffer substantial prejudice if they were dispossessed at that stage. On the basis of those allegations, the petition sought a stay of the auction, a prohibition on granting any right of future cultivation, and requested that the cultivators be permitted to access the well and tend to the crop until the revision application could be finally decided by the learned Sessions Judge.

The learned Sessions Judge was apparently unwilling to grant an ex parte interim stay. Consequently, on the same day he ordered that notice of the revision application be served upon the opposite party and required the appellant to file a copy of the application along with a talbana. The matter was then adjourned for hearing on 6 September 1951. When the case was called before the Sessions Judge on that date, the appellant was present, but the judge observed that the appellant had not yet produced the required copy of the application, although the appellant asserted that it would be filed that day. Accordingly, the judge directed that notice should be issued after the copy was filed, and the hearing was further postponed to 12 September 1951.

Up to this point, the factual chronology of the proceedings is not contested. However, a serious dispute remains concerning subsequent events that the complainant alleges occurred on 6 September 1951, matters that are central to the present proceedings.

In this case, the complainant alleges that after the hearing scheduled for September 6, 1951 was adjourned to September 12, 1951 and the court ordered that notice of the revision application be issued to Party No 2, the appellant persuaded Shri Maghraj, who was the clerk of the Sessions Judge’s Court, to draft an actual stay order. According to the complaint, Shri Maghraj prepared the order and obtained the signature of the Reader of the Court. The appellant then retrieved the signed stay order from Shri Sheolal, the dispatch clerk to whom the order had been entrusted by the Reader. With the order in his possession, the appellant personally delivered it to the Sub‑Divisional Magistrate and presented it to the magistrate on the following day. The revision application was subsequently listed for hearing on September 12, 1951, but because notice had not been served on Party No 2, the hearing was again postponed to September 22, 1951. It is undisputed that on September 22, 1951 a fraudulent stay order was discovered to have been issued from the office of the learned Sessions Judge’s Court. The learned Sessions Judge then summoned Shri Maghraj for an explanation and directed the Sub‑Divisional Magistrate to treat the September 6, 1951 letter containing the alleged stay order as cancelled. Following his inquiry, the learned Sessions Judge concluded that Shri Maghraj had made a grave mistake and ordered that a fine of Rs II be imposed on him together with a stern warning to observe proper conduct in the future. The complaint against the appellant contends that the appellant actively participated in the fraud, thereby committing fraudulent and grossly improper conduct in the discharge of his professional duties. It is further alleged that the appellant obtained the false order by unfair means, constituting professional misconduct.

The appellant acknowledges that he was present before the learned Sessions Judge on September 6, 1951 and does not deny that he collected an envelope from the dispatch clerk addressed to the Sub‑Divisional Magistrate, Sojat, and handed that envelope to the magistrate’s office on the next day. However, the appellant maintains that he never approached Shri Maghraj in connection with the matter and that he did not play any role in preparing the draft order. He asserts that he was unaware of the envelope’s contents and only on September 22, 1951 became aware that a false stay order had been mistakenly issued by the Sessions Judge’s office. Both parties presented evidence before the tribunal. The complainant, Dr Prem Chand, gave testimony in person, and on his behalf Shri Maghraj and Shri Sheolal were examined. The appellant, Manak Lal, also gave evidence. These testimonies formed the basis on which the tribunal and the learned judges of the High Court of Rajasthan evaluated the allegations and ultimately concluded that the appellant was guilty of gross professional misconduct.

The evidence of the complainant was presented by counsel on his behalf. Both the members of the tribunal and the learned judges of the High Court of Rajasthan, after considering the material, largely accepted the version advanced by the complainant. They dismissed the pleas put forward by the appellant and concluded that the appellant had committed gross professional misconduct. This conclusion, based on the merits of the case, is now being challenged before the Court by Shri C. K. Daphtary, who appears on behalf of the appellant. In addition to contesting the finding, Shri Daphtary has raised two distinct points of law in support of his request that the order passed against the appellant be set aside. The Court finds it appropriate to address these legal points first.

Shri Daphtary argues that the tribunal constituted by the learned Chief Justice of the High Court of Rajasthan to investigate the alleged misconduct of the appellant was not properly constituted. He contends that, as a result, every proceeding before that tribunal, the report issued by it, and the subsequent order rendered by the High Court on the basis of that report are all void. The composition of the tribunal is central to his argument. The tribunal was made up of three members, with Shri Changani serving as its chairman. It is undisputed that Shri Changani had filed a vakalat‑nama on behalf of Dr. Prem Chand in criminal proceedings initiated under section 145 of the Code of Criminal Procedure on 23 August 1952, and that he had personally argued that case on the same date. Shri Daphtary maintains that because Shri Changani had acted as counsel for the opposite party in those criminal proceedings, he was disqualified from serving as a member of the tribunal, and that this disqualification creates a fatal defect in the tribunal’s constitution.

The proposition raised by Shri Daphtary possesses a measure of merit. Established jurisprudence holds that every member of a body tasked with adjudicating issues in judicial or quasi‑judicial proceedings must be capable of exercising judicial functions. It is essential to the integrity of judicial decisions and the administration of justice that judges act impartially, objectively and without bias. The test in cases of alleged bias is not whether an actual bias influenced the decision, but whether a reasonable litigant could apprehend that bias on the part of a tribunal member might have affected the final outcome. This principle gives rise to the well‑known maxim that justice must not only be done but must also appear to be done. As Viscount Cave observed in United Brewers Co. v. Bath Justices, “this rule has been asserted not only in the case of courts of justices and other judicial tribunals but also in the case of authorities which, though not courts, are required to act as judges of the rights of others.” In assessing allegations of bias among tribunal members, a distinction must be drawn between a pecuniary interest and a prejudicial attitude. It is evident that even a minimal pecuniary interest in the subject matter of the proceedings would categorically disqualify a member from acting as a judge.

The Court observed that a direct pecuniary interest in the subject‑matter of the proceedings would automatically disqualify a member from acting as a judge. However, where no pecuniary interest is established but a possible bias is alleged, the Court must examine whether there exists a reasonable basis for suspecting bias and whether such suspicion could create, in the mind of the litigant or the public, a reasonable doubt about the fairness of the administration of justice. The Court emphasized that the determination of bias is always a question of fact that must be decided on the particular circumstances of each case. In citing Halsbury, the Court reproduced the principle that “nemo debet esse judex in causa propria sua,” which precludes a judge who is interested in the subject‑matter of a dispute from acting as a judge in that dispute. The Court affirmed that this principle is unquestionably valid and that it applies not only to judges of the courts but also to all tribunals and bodies vested with the authority to adjudicate the rights of parties. In support of that argument, counsel for the petitioner referred the Court to the decision in Rex v. Sussex Justices, Ex parte McCarthy. That case concerned a collision between a motor vehicle belonging to the applicant and another vehicle belonging to a person identified as W, as reported in [1926] A.C. 586 at page 590 and in Halsbury’s Laws of England, Vol. XXI, p. 535, para 952, and also cited in [1924] 1 K.B. 256. At the hearing of the summons, the acting clerk to the justices was a member of the solicitor firm representing W in a claim for damages against the applicant arising from the collision. After the evidence was recorded, the justices retired to consider their decision, and the acting clerk also retired with them in case they required advice on any point of law. The applicant was subsequently convicted, and he challenged the conviction on the ground that it was vitiated by the improper conduct of the justices in allowing the acting clerk to accompany them while they deliberated on the merits of the case. An affidavit filed on behalf of the justices asserted that the justices reached their decision without consulting the clerk and that the clerk had, in fact, abstained from referring to the case. Although the affidavit was accepted as true by all the learned judges hearing the matter, the conviction was nevertheless set aside. Lord Hewart C.J. observed that the crucial question was whether the acting clerk was so closely connected to the civil aspect of the case as to render him unfit to act as a clerk in the criminal proceedings, and he added that the answer depends not on what was actually done but on what might appear to have been done. The Court stressed that no action should be taken which creates even a suspicion of improper interference in the course of justice.

In the matter before the Court, Justice Lush concurred with the observation of Lord Hewart C.J. and accepted the affidavit that had been filed on behalf of the justices. Justice Lush noted, however, that the justices had placed themselves in an untenable situation by allowing the clerk, under those circumstances, to retire together with them into their consultation room. The same principle was reiterated with equal force in the case of Rex v. Essex Justices, Ex parte Perking (1927) 2 K.B. 475. In that case the dispute involved a husband and his wife. It appeared that the wife had consulted the solicitor’s clerk in the solicitor’s office about preparing a deed of separation from her husband, and that the solicitor had acted on the matter for a period before the wife ceased to consult him. No reference to the matter was made to the solicitor himself, except for a very short note in a weekly report prepared by his clerk. Later, the solicitor acted as a clerk to the justices who tried the case. In his affidavit, he stated that, while serving as clerk to the justices on the occasion in question, he was unaware that his firm had previously acted for the wife and that he bore no animosity toward the husband. It was contended that the decision of the justices should be set aside on the ground that the justices were not properly constituted and that, perhaps, the decision might have been influenced, albeit indirectly and to a minimal extent, by prejudice. Rejecting the suggestion that the justices’ decision had been tainted even remotely by the alleged impropriety, Justice Avory observed that, although the clerk to the justices and the justices themselves did not know that his firm had represented the wife, the reasonable impression in the mind of the husband would be that justice had not been done, since the solicitor for his wife had been acting with the justices and advising them on the hearing of the summons that the husband had filed against her.

The Advocate‑General, through Shri Umrigar, argued that this principle should not be extended to proceedings before the tribunal appointed under the Bar Councils Act. He maintained that the tribunal does not have the power to pass final orders on the enquiry and that the tribunal’s report is always forwarded to the High Court for a final decision. The Court was not persuaded by this argument. It held that if, in judicial or quasi‑judicial proceedings, justice must not only be done but must also appear to be done to the public, the same standard applies when a lawyer faces professional‑misconduct charges and is tried by a Bar Council tribunal. The enquiry before such a tribunal must leave no reasonable apprehension in the mind of the lawyer that the tribunal might have been, even indirectly, influenced by bias on the part of any of its members. Consequently, the Court emphasized that the requirement of impartiality and the appearance of fairness is equally demanding in tribunal proceedings as it is in courts of law.

In this case the Court considered whether any bias on the part of members of the tribunal could have indirectly influenced its proceedings. The Court said that there was no difficulty in assuming that Shri Chhangani, when he agreed to serve as Chairman of the tribunal, did not recall that he had previously appeared against the appellant’s clients in criminal proceedings brought under section 145. The Court noted that Shri Chhangani is a senior member of the Bar and had once held the office of Advocate‑General of the High Court of Rajasthan. It was further observed that Shri Chhangani had not taken part in the matter at every stage; he had appeared only once, acting as senior counsel to argue the case. Consequently, the Court found it quite possible that Shri Chhangani had no personal contact with the client, Dr Prem Chand, and that he might not have been aware that he had appeared at any stage for Dr Prem Chand in the proceedings from which the present enquiry arose. Nevertheless, the Court held that this circumstance did not affect the legal argument put forward by Shri Daphtary. The argument advanced by Shri Daphtary was not that Shri Chhangani actually harboured a bias against the appellant or that such a bias caused the final report against the appellant. Moreover, the Court explained that it was unnecessary for Shri Daphtary to prove the existence of a bias, because if Shri Chhangani were disqualified from serving on the tribunal simply by virtue of his earlier appearance for Dr Prem Chand in the criminal proceedings under section 145, the appellant could raise the issue of improper constitution of the tribunal without having to demonstrate actual prejudice. Proof of prejudice, while potentially strengthening the appellant’s case, was not a prerequisite for asserting that the tribunal had not been properly constituted.

Shri Umrigar, on the other hand, argued that a challenge to the validity of the tribunal’s constitution could not succeed unless actual prejudice was proved. To support this position, Shri Umrigar relied on the decision in Rex v. Williams, ex parte Phillips (1) [1914] 1 K.B. 608. In that case the Court was dealing with an application for a writ of certiorari. A baker had been charged under section 4 of the Bread Act of 1836 for selling bread by a method other than by weight and was convicted under section 15 of the same Act. After his conviction the baker obtained a rule nisi for a writ of certiorari seeking to quash the conviction on the ground that one of the justices presiding over the trial was a person concerned in the business of a baker. Section 15 of the Act disqualified persons who were concerned in the business of a baker from acting as a justice in such cases. The Court ultimately rejected the baker’s application, but the decision was based on two principal grounds. The first ground concerned the discretionary nature of granting a certiorari when the objection to a conviction is raised solely by a member of the public rather than by a party with a specific legal interest. The second ground indicated that the justice whose presence was challenged did not fall within the mischief contemplated by section 15 of the Act. The Court’s reasoning in that decision was cited by Shri Umrigar to argue that, without proof of actual prejudice, a challenge to the tribunal’s composition could not be sustained.

The Court stated that its decision rested on two principal grounds. Justice Channel J., delivering the principal judgment, explained that when an objection to a conviction is filed by a mere member of the public rather than by a party who is specifically aggrieved, the grant of a writ of certiorari is a matter of discretion. By contrast, when the objection originates from a party who has suffered a direct injury, the usual rule is that a writ is issued ex debito justitiae. Justice Channel J. added that this rule is subject to an important exception: an aggrieved party may, by his own conduct, disqualify himself from challenging the jurisdiction of an inferior court. The second ground concerned the identity of the judge whose presence at the hearing had been challenged under section 15 of the Act. The Court observed that the judge in question did not appear to fall within the mischief contemplated by section 15. Justice Channel J. remarked that he could not say whether the facts established would render the judge a person “following or concerned in the business of a baker” as defined by the provision, and this observation was concurred by the two other learned judges.

From these observations, the Court concluded that the earlier decision did not support Shri Umrigar’s argument that, even if the tribunal were improperly constituted, the tribunal’s proceedings and subsequent orders could not be contested unless the defect actually caused prejudice to the appellant. Accordingly, the Court held that Shri Daphtary was correct in contending that the tribunal appointed by the Chief Justice of the High Court of Rajasthan suffered a serious infirmity because Shri Chhangani, who had previously appeared for Dr Prem Chand in the criminal proceedings, was appointed as a member of the tribunal and acted as its Chairman. The next issue before the Court was whether the appellant could first raise this objection before the High Court, that is, whether the appellant had waived his objection to Shri Chhangani’s presence. Shri Daphtary did not seriously dispute that such a waiver was possible. The Court further noted that alleged bias on the part of a tribunal member does not invalidate the proceedings if it can be shown that the party, although aware of the circumstances giving rise to the bias and of the right to challenge the member’s presence, did not raise the objection at the appropriate time. The Court affirmed that waiver cannot be inferred merely from a party’s failure to raise objections; it must be inferred only when the party had full knowledge of the relevant facts and of the right to object, yet chose not to exercise that right.

The Court explained that a waiver of an objection can be established only when the party was aware of the relevant facts and also knew that he possessed a right to raise the objection. In support of this principle, the Court quoted Sir John Romilly, M. R., from the case of Vyvyan v. Vyvyan, observing that “waiver or acquiescence, like election, presupposes that the person to be bound is fully cognizant of his rights, and, that being so, he neglects to enforce them, or chooses one benefit instead of another, either, but not both, of which he might claim.” Applying that observation to the present matter, the Court noted that if it appears the appellant was fully informed about the alleged disability of Shri Chhangani and also understood that he could have approached the learned Chief Justice to request the nomination of a different member, yet chose not to take that step, it may be inferred that the appellant deliberately waited to obtain a report favorable to him from the tribunal. When the report later turned against him, the appellant then raised the objection before the High Court for the first time. The Court further observed that, although the point of law raised by Shri Daphtary concerning the competence of the tribunal is substantively sound, it remains necessary to determine whether the appellant was barred from raising that point before the High Court by virtue of a prior waiver or acquiescence. The record showed that the appellant never raised the issue before the tribunal, and the manner in which he subsequently raised it before the High Court was significant. The appellant’s initial objection to the tribunal’s report centered on the allegation that Shri Chhangani had a pecuniary and personal interest in the complainant, Dr. Prem Chand. The learned judges of the High Court found that the allegation of pecuniary interest was wholly unfounded, and that finding was not contested before this Court. The High Court also concluded that the objection had been raised primarily to obtain an order for a fresh enquiry and thereby gain time. While it may be conceded that the High Court judgment did not expressly declare that the appellant had waived his objection, the substance of its conclusion suggested otherwise. Having heard Shri Daphtary’s arguments on the question of waiver, the Court expressed no hesitation in concluding that the appellant deliberately waived his objection and therefore could not be permitted to revive it now. Shri Daphtary did not argue that, at the material time, the appellant had forgotten that Shri Chhangani had appeared for Dr. Prem Chand in the criminal proceedings; in fact, such a plea could not be entertained in view of the affidavit filed by the appellant.

In the present appeal, the appellant submitted an affidavit for the Court’s consideration. According to the affidavit, the appellant maintains that he remained unaware of Shri Chhangani’s legal disqualification from serving as a member of the tribunal until he consulted his counsel, Shri Murli Manohar, to lodge objections against the tribunal’s report. The appellant’s position therefore suggests that the very fact of Shri Chhangani’s alleged disqualification was already known to him, even though he claims ignorance of the legal consequences of that disqualification. In essence, the contention advanced by counsel for the respondent is that, while the appellant recognized that Shri Chhangani had previously represented Dr. Prem Chand in the criminal proceedings under scrutiny, he did not realise that such prior representation rendered Shri Chhangani ineligible to sit on the tribunal. This narrow issue is the specific point that counsel for the respondent seeks to press before the Court.

Counsel for the respondent argues, rightly so, that if the Court is convinced that the appellant was truly unaware of the correct legal position and of the rights that flowed from it, then the appellant’s failure to contest Shri Chhangani’s appointment to the tribunal could not constitute a valid waiver. However, the Court finds it difficult to accept the respondent’s assertion that the appellant remained ignorant of the legal position and his corresponding rights until his meeting with Shri Murli Manohar. Although the appellant is a junior barrister, he has accumulated ten years of standing at the Bar, and in the present proceedings he was assisted by counsel. It is therefore hard to presume that neither the appellant nor his lawyer were aware that the presence of Shri Chhangani on the tribunal could be challenged.

The Court is further persuaded that even a layperson, lacking familiarity with the technicalities of law and the equitable principles underlying the doctrine of disability, would immediately perceive that a lawyer who had previously advocated for Dr. Prem Chand was authorised to pass judgment on the appellant’s conduct, a circumstance that could embarrass the appellant and prejudice his position. From a common‑sense perspective, the situation was evidently uncomfortable, and the claim that the appellant was unaware of his legal rights appears to be a post‑hoc rationalisation. The appellant’s attempt to raise this argument for the first time before the High Court suggests a strategic move intended to obtain additional time and to secure a fresh enquiry, a view that the High Court shared. Since the Court is convinced that the appellant knew the material facts and must be held to have been aware of his legal rights, his failure to raise this plea at an earlier stage effectively bars him on the ground of waiver.

In the later stage of the proceedings the Court observed that the appellant’s failure to raise the present plea earlier operated as a waiver that barred him from asserting the argument now. It appeared that the appellant had initially hoped to obtain a favorable report from the tribunal that had been constituted, and when the tribunal issued an unfavorable report he resorted to invoking this technical point as a device to challenge the outcome. The appellant’s counsel then attempted to contest the principal finding of the High Court that the appellant was guilty of professional misconduct, doing so on a preliminary basis. The counsel argued that the judgment of the High Court indicated that the learned Judges had taken into account evidence that was inadmissible, evidence that had been considered in the appellant’s absence and without affording him an opportunity to be heard on that material, thereby introducing a defect that vitiated the final conclusions of the judgment. The High Court’s judgment revealed that the learned Judges had requisitioned and examined the record of Revision Application No. 31 of 1951 filed in the Court of the Sessions Judge, Pali, as well as the record of Case No. 134 of 1951 filed in the Court of the Sub‑Divisional Magistrate, Sojat. The appellant’s counsel specifically pointed out that the record of Case No. 134 of 1951 had been sent to the High Court after the matter had already been argued before that Court. The present Court noted that had it been satisfied that the High Court Judges had considered material documents that were not before them at the time the arguments were made, the grievance raised by the appellant’s counsel would have been taken more seriously. However, the present Court was not convinced that the grievance concerning this alleged procedural irregularity was justified. The High Court judgment further showed that the appellant had contended before the High Court that he could not have been involved in the fabrication of a false order because his subsequent conduct demonstrated that he was not interested in seeing that order implemented. The High Court characterised that contention as plausible but not sound. This contention prompted a reply from the respondent that the fabricated order had indeed been implemented. In support of that reply, reference was made to an application filed by Dr. Prem Chand and his associates, in which it was specifically alleged that the appellant’s clients had taken possession of the crops and had removed them. That application had been filed on September 24, 1951, and it sought an order from the Sub‑Divisional Magistrate to prevent the appellant’s clients from taking illegal possession of the land and from removing the crops. The two opposing contentions – the appellant’s denial of involvement in the fabrication and the respondent’s allegation of illegal possession – were the matters that the learned Judges of the High Court were required to examine. The judgment indicated that, in order to satisfy themselves that the application referred to by the respondent during the argument had indeed been made, the High Court subsequently called for and scrutinised the relevant records.

In dealing with the material before it, the Court observed that the High Court had earlier indicated in a general manner that it had examined the records of both disputes. However, the Court noted that, upon close reading of the reasoning supplied by the High Court judges, it became evident that the actual perusal of those records had not influenced the ultimate judgement of the High Court. Consequently, the Court was not persuaded that the High Court’s procedural approach was marred by any serious irregularity that would warrant setting aside its final orders or directing a fresh hearing. Having therefore satisfied itself on the procedural aspect, the Court turned to the substantive question concerning the merits of the findings recorded by the High Court. The appellant’s counsel, Shri Daphtary, was fully aware that this portion of his case was likely to be weak, given that the appeal had been admitted on special leave under Article 136 of the Constitution. Both the tribunal and the High Court had arrived at parallel factual conclusions against the appellant, and the Court found it difficult to accept the contention that those factual findings ought to be re‑examined on their merits at this stage of the appeal.

The Court further highlighted several decisive features that unmistakably supported the High Court’s stance against the appellant. It was an established fact that the appellant’s clients were absent from the Sessions Court on 6 September 1951, although the appellant himself was present and had personally delivered an envelope containing the order to the Sub‑Divisional Magistrate. While it is not uncommon in the State of Jodhpur for lawyers practising in lower courts to assist court officers by transporting bundles of judicial orders, the absence of the clients made it hard to conceive how a fabricated order could have been produced without the appellant’s instigation. The Court regarded it as inconceivable that court officers would, of their own accord, devise a false order; the order in question was clearly intended to benefit the appellant’s clients. From this, the Court inferred that the appellant must have corrupted the court officers by offering illegal consideration, thereby inducing them to fabricate the order. Shri Daphtary’s attempt to rely on the view expressed by the learned Sessions Judge in an enquiry conducted after the discovery of the fabricated order was also rejected. The Court openly admitted its dissatisfaction with that enquiry and its conclusions, and it declined to give any weight to arguments predicated on the Sessions Judge’s view. Finally, the Court agreed with the High Court that the conduct of Shri Loya warranted scrutiny, noting that the involvement of both Shri Loya and Shri Maghraj was apparent and required further examination.

In the matter before the Court, it was observed that Shri Maghraj had attempted to influence the Sessions Judge by proposing that the alleged fabrication of the order resulted from a mistake he himself had made. The Court considered the suggestion that the error could be attributed to Shri Maghraj to be wholly unreasonable and, in effect, fantastical. The order issued by the learned Sessions Judge on 6 September 1951 was described as clear beyond doubt. The Court noted that Shri Maghraj had read that order and that it had been alleged that he had misunderstood its effect. The Court found it impossible to understand how an order directing that the notice of an application and a copy of the application be served on the opponent could be interpreted as an order directing the issue of a stay. Moreover, the order in question was elaborate in its terms and its purpose was unmistakably to require the Sub‑Divisional Magistrate to implement the prayers made by the appellant in his application without delay. The endorsement made by Shri Maghraj, indicating that the order had been complied with, together with his silence on 12 September 1951—when the learned Sessions Judge observed that notice had not been served—was described as highly indicative. The Court held that, had Shri Maghraj truly committed an honest mistake, he would have promptly reported to the learned Sessions Judge that notice had not been issued and that, instead, an order of stay had been mistakenly sent in the proceedings. When Shri Maghraj gave evidence in the present proceedings, the Court noted that he did not adhere to the mistake theory. His current version was that he had prepared the draft order at the appellant’s instance before the case was argued, that he received it back duly signed by the Reader, Shri Loya, and that it was then handed to the dispatch clerk who delivered it to the appellant. The Court concluded that Shri Maghraj was an accomplice and, like all accomplices, he attempted to minimise his own role in the transaction. The Court further observed that the evidence against the appellant was substantially circumstantial and that a finding of guilt on such evidence could arise only if the evidence was wholly inconsistent with innocence and inexorably led to an inference of guilt. The High Court’s judgment was cited as showing that the learned judges were fully aware of this legal position. They had held that, considering all circumstances, it was impossible to assert that the fabricated order could have been produced without the active assistance and collaboration of the appellant. Shri Daphtary then argued that the complainant’s failure to examine Shri Loya, the Reader, was deliberate and suggested that an adverse inference should be drawn against the complainant. The Court noted that this was the sole point raised by Shri Daphtary with seriousness concerning the merits of the High Court’s finding against the appellant.

The Court noted that even in quasi‑criminal proceedings, it was necessary for all important and relevant evidence to be placed before the tribunal, but that this requirement was qualified by the general rule that the prosecutor who managed the case determined which witnesses were essential for the case to proceed. The Court explained that the prosecutor was required to act honestly and fairly toward both the court and the person against whom the proceedings had been instituted. When the prosecutor, acting honestly, decided that certain witnesses did not need to be examined, the Court would ordinarily be reluctant to draw an adverse inference against the prosecution. In the present matter, the Court found no justification for drawing any adverse inference against the complainant because Shri Loya was, at best, an accomplice, and it was difficult to imagine that the complainant’s failure to examine an accomplice could give rise to an adverse inference against the complainant’s case. The Court further observed that if this were the true position, it would be futile to argue that the High Court’s finding was vitiated by the fact that the High Court had not considered the effect of the complainant’s failure to examine Shri Loya before the tribunal. The Court also pointed out that this point had not been raised before the High Court. Consequently, the Court stated that there was no hesitation in holding that no case was made out for interference with the conclusions of the High Court under Article 136 of the Constitution. The remaining issue for the Court to consider was the correctness or propriety of the order passed by the High Court directing the removal of the appellant’s name from the roll of legal practitioners. Shri Daphtary argued that the order was unduly severe and urged the Court to consider that the appellant was a junior at the Bar and that removal from the roll would deprive him of his livelihood. The Court was not persuaded by this argument. The Court observed that this was not the first occasion on which the appellant had encountered trouble for professional misconduct. In 1952, the appellant had been suspended for two months for misappropriating money entrusted to him by clients for payment of court fees, a fact that weighed against him. Moreover, the Court regarded the misconduct proved in the present case as being of a very serious character. The Court emphasized that lawyers play an important role in the administration of law and justice, that they are, in a sense, officers of the court and thus enjoy special rights and privileges, and that the legal profession enjoys a high and respected status which carries corresponding obligations. Accordingly, the Court held that the Bar must zealously safeguard the highest standards of professional morality and integrity, and that the order of removal was fully justified. The appeal was therefore dismissed with costs.

The Court stressed that the legal profession must be guided by a high standard of professional morality and integrity, and it noted that such standards are essential for maintaining public confidence in the administration of justice. While acknowledging that cases involving serious breaches of professional conduct are relatively uncommon, the Court observed that whenever such matters arise before the judiciary, the courts are obliged to regard the misconduct with utmost seriousness and to issue orders that serve as a deterrent to others. Consequently, the Court declared that it is incumbent upon it to articulate a clear and emphatic condemnation of conduct that is unworthy of the legal profession, particularly conduct that involves the manipulation or corruption of public officials for the short‑term advantage of a client. The Court emphasized that preserving the reputation and ethical standing of the Bar requires decisive action against individuals who show no reluctance in resorting to illegal or unethical means to benefit their clients. Accordingly, the Court held that the order issued by the High Court, which directed the deletion of the appellant’s name from the roll of legal practitioners, was fully warranted and appropriate in the circumstances. In light of this conclusion, the appeal was dismissed in its entirety, the appellant was ordered to bear the costs of the proceedings, and the decision of the High Court was confirmed without modification.