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PETITIONER: MANAK LAL

       Vs.

RESPONDENT: DR. PREM CHAND

DATE OF JUDGMENT: 06/02/1957

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. AIYYAR, T.L. VENKATARAMA DAS, S.K.

CITATION:  1957 AIR  425            1957 SCR  575

ACT: Tribunal-Member  having bias against Party-Whether  tribunal improperly  constituted-Waiver-What  amounts  to-Effect   of waiver--Failure to examine a witness-Witness no better  than accomplice-Effect-Professional   misconduct   by   advocate- Measure of punishment.

HEADNOTE: P filed a complaint of professional misconduct against M, an advocate of the High Court of Rajasthan.  The Chief  justice appointed a tribunal under the Bar Councils Act for  enquiry into  the  complaint.  C, a senior advocate,  was  appointed chairman of the tribunal.  C had appeared once for P  before the  trial  Court  in the case out of  which  the  complaint arose.   No  objection  was raised as  to  its  constitution before- the tribunal.  The tribunal found M guilty of having got  a false stay order in favour of his clients written  by the  clerk of the Court by improper means.  The  High  Court concurred  in this finding and directed the removal  of  M’s name  from the rolls.  It was contended on behalf of M  that the tribunal was not properly constituted. Held, that the constitution of the tribunal suffered from  a serious  infirmity  in that C was appointed its  member  and acted as its chairman.  It is well settled that every member of a tribunal that is called upon to try issues in  judicial or   quasi-judicial   proceedings  must  be  able   to   act judicially;  and it is of the essence of judicial  decisions and  judicial administration that judges should be  able  to act impartially, objectively and without any bias.  In  such cases  the test is not whether in fact a bias  has  affected the  judgment;  the  test always is and must  be  whether  a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against  him in the final decision of the tribunal.  It is in this  sense that it is often said that justice must not only be done but must also appear to be done. Frome  United  Breweries Co. v. Bath justices [1926]  A.  C. 586, Rex v. Sussex justices, Exparte Mc Carthy [1924] I.  K. B. 256, Rex. v. Essex justices, Ex parte Perkins [1927] 2 K. B. 475, followed. Rex  v.  Williams, Ex Parte Phillips [1914] I.  K.  B.  6o8,

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explained. The  objection to the constitution of., the tribunal can  be waived.   Waiver  can be inferred from the  failure  of  the party  to take the objection only if and after it  is  shown that the party 74 576 knew about the relevant facts and was aware of his right  to take the objection.  Since M knew that C had appeared for  P and  must  be  deemed to have been conscious  of  his  legal rights,  his  failure  to  take  the  objection  before  the tribunal creates an effective bar of waiver against him. Vyuyan v. Vyuyan (186I) 30 Beav. 65; 54 E. R. 8I3 relied on. Even in quasi-criminalproceedings all important and relevant evidence  must  be  laid  before the  tribunal,  but  it  is generally for the prosecutor to decidewhich witnesses  are necessary  for  the  unfolding  of  the  case.  No   adverse inference  can  be drawn against the  complaint’s  case  for failure  to  examine  a witness who was no  better  than  an accomplice. The order of the High Court removing M’s name from the  roll of  advocates is fully justified.  The misconduct proved  is of  a very serious character.  Disapproval of such  unworthy conduct   must  be  expressed  emphatically  as  the   legal profession  must be saved from persons who do not  feel  any hesitation  in  corrupting public officers by  unworthy  and illegal means for the benefit of their clients.

JUDGMENT: CIVIL APPELLATE JURISDICTION.  Civil Appeal No. 246 of 1956. Appeal  by special leave from the judgment and order  dated- the November 11, 1955, of the Rajasthan High Court in  Civil Misc.  Case No. 3 of 1952. C.K. Daphtary, Solicitor-General of India, Veda Vyasa, S. K. Kapur and N. H. Hingorani, for the appellant H.J. Umrigar and T.  M. Sen, for the respondent No. 2. 1957.   February 6. The Judgment of the Court was  delivered by GAJENDRAGADKAR  J.-The  appellant  Sri  Manak  Lal  was   an advocate practising at Soiat.  A complaint was filed against him  under s. 13 of the Legal Practitioners Act by Dr.  Prem Chand Singhvi.  It was alleged that the appellant was guilty of  professional  misconduct and the  complainant  requested that  suitable action be taken against him in  that  behalf. Since the appellant was not a pleader or a mukhtear but  an. advocate  of the High Court of Rajasthan, the complaint  was sent  for  enquiry to the tribunal nominated  by  the  Chief justice’ of the High Court of Rajasthan under S. 10(2) 577 of  the  Bar  Councils Act.  The tribunal  held  an  enquiry recorded evidence and came to the unanimous conclusion  that the  appellant  "was guilty of  professional  misconduct  in having  got  a  false stay order written  by  the  clerk  by improper means and thereby he managed to take an illegal and undue advantage for his clients and therefore deserves to be punished for the same." When this report was received by the High Court, the matter was argued before the Court.  In  the result  the High Court agreed with the findings made by  the tribunal  and directed that the appellant should be  removed from  practice.   It is against this order that  by  Special Leave the appellant has come to this Court. The facts giving rise to the complaint against the appellant are  very  few.   It  appears  that  there  was  a   dispute

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concerning  Jhalra  well  and  certain  agricultural   plots surrounding  the well between Pukhraj and others on the  one hand  and  Dr. Prem Chand and others on  the  other.   These parties were described in the said proceedings as Party  No. 1  and  Party  No. 2 respectively.  The  appellant  was  the counsel  for  Party No. r. As a result of this  dispute  the police presented a report in the court of the Sub-Divisional Magistrate,  Sojat,  that the dispute was  likely  to  cause breach of peace and suggested that proceedings under s.  145 of the Code of Criminal Procedure should be taken.  The Sub- Divisional Magistrate drew out, a preliminary order on  July 5,  1951  (Ex.  A-1).  By this order both the  parties  were called  upon to put in their written statements  as  regards their claims to possession of the property in dispute.   The learned  Magistrate  also  passed  an  order  attaching  the property in dispute pending the decision of the  proceedings under s. 145.  This was followed by another order passed  on August 9, 1951,,that the crop which was on the field  should be  auctioned,  its price deposited in court  and  the  land itself should be given for cultivation to the highest bidder for the next year.  It appears that the hearing of the  case was  fixed for August 21 1951.  Members of Party No. 1  were aggrieved by these orders and on their behalf the’ appellant preferred a revision application against these orders in the court of the Sessions Judge, Pali, on August 13, 578 1951.   The appellant presented another petition before  the learned Sessions judge on August 29, 195 1. In this petition it  was alleged that the crop which stood on the  fields  in question belonged to the cultivators Described as Party  No. 1,   that  the  crop  was  getting  spoiled  and  that   the cultivators  would be considerably prejudiced if  they  were dispossessed-  from  their lands at that  stage.   On  these allegations  the application prayed that an order should  be passed  not  to  auction the crop as well as  the  right  of future  cultivation and that liberty should be given to  the cultivators  to  go to the well and to look after  the  crop pending  the  final disposal of their  revision  application before  the learned Sessions Judge.  The  learned  Sessions, Judge was not apparently inclined to grant ex parte  interim stay  and so on the same day he directed that notice of  the revision application should be given to the other party  and called upon the applicants to furnish talbana and a copy  of the application.  The case then stood adjourned for  hearing on  September 6, 1951. On September 6, 1951, when  the  case was  called  out  before the  learned  Sessions  Judge,  the appellant  was  present.  The learned Sessions  Judge  found that  the  appellant  had  not  submitted  a  copy  of   his application  as  already directed but he was told  that  the appellant  was submitting a copy on the same day.   That  is why  the learned Judge ordered that notice should be  issued after the said copy was filed.  The hearing of the case  was then  adjourned to September 12, 1951.  So far there  is  no dispute  about  the  facts.  There is,  however,  a  serious dispute   as  to  other  events  which,  according  to   the complainant,   happened   on   September   6,   1951.    The complainant’s  case is that, after the hearing of  the  case was  adjourned  to’ September 12, 1951, and  notice  of  the application  was  ordered to be issued to Party No.  2,  the appellant prevailed upon Shri Maghraj, clerk of the Sessions Judge’s Court to prepare an actual stay order, that the said stay  order was accordingly prepared and was got  signed  by the  Reader of the Court.  Then the appellant  obtained  the stay  order from Shri Sheolal the despatch clerk to whom  it was  entrusted  by the Reader.  Armed with  this  order  the

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appellant personally took 579 the order to the Sub-Divisional Magistrate and presented  it to him the next day.  In due course the revision application was  taken up for hearing on September 12, 1951.   Since  no notice had been served on Party No. 2 the hearing was  again adjourned  to September 22, 1951.  It is common ground  that on  September 22, 1951, it was discovered that a  fraudulent stay  order had been issued from the office of  the  learned Sessions  Judge’s  Court.  The learned Sessions  Judge  then called  for explanation from Shri Maghraj and  directed  the Sub-Divisional  Magistrate to treat the letter of  September 6, 1951, containing the alleged order of stay as  cancelled. It  appears  that  as a result of the enquiry  held  by  the learned  Sessions  Judge,  he found that  Shri  Maghraj  had committed  a grave mistake and held that it would be  enough if Shri Maghraj was fined Rs.  II/and administered a  severe warning to behave properly in future.  The complaint against the  appellant is that the appellant took an active part  in the  commission  of  the  fraud  and  was  thus  guilty   of fraudulent and grossly improper conduct in the discharge  of his  professional duty.  A false order had been obtained  by him  by  unfair means and so he was guilty  of  professional misconduct.   That  in  substance is the  case  against  the appellant. As we have already indicated, many of ’the facts alleged  in the complaint against the appellant are not in dispute.  The appellant  admits  that he was present  before  the  learned Sessions  Judge on September 6, 1951.  It is not  denied  by him  that  he  took the envelope  from  the  despatch  clerk addressed-to the Sub-Divisional Magistrate, Sojat, and  that he  in  fact handed over the envelope the next  day  in  the office   of  -the  Sub-Divisional  Magistrate.   His   case, however,  is that he never approached Shri Maghraj  in  this matter  and that he was not in any way instrumental in  get- ting  the  draft  prepared.   In  fact,  according  to   the appellant, he did not know the contents of the envelope  and it was only on September 22, 1951, that he knew that a false order of stay had been issued by the office.of the  Sessions Judge by mistake.  Before the tribunal, (evidence was led by both the parties The 580 complainant Dr. Prem Chand himself gave evidence and on  his behalf  Shri  Maghraj and Shri Sheolal were  examined.   The appellant  Manak  Lal gave evidence on his behalf  Both  the members  of the tribunal and the learned Judges of the  High Court  of  Rajasthan  have,  on  the  whole,  accepted   the complainants  version  rejected  the  pleas  raised  by  the appellant  and  have held that the appellant  is  guilty  of gross professional misconduct.  It is this finding which, on the  merits, is challenged before us by Shri C. K.  Daphtary on behalf of the appellant.  Shri Dal phtary has also raised two points of law in support of his argument that the  order passed against the appellant must be set aside.  It -will be convenient to deal with these points first. Shri  Daphtary contends that the tribunal appointed  by  the learned  Chief  Justice of the High Court  of  Rajasthan  to enquire  into  the alleged misconduct of the  appellant  was improperly constituted and all proceedings taken before  the tribunal,  the  report made by it and the  subsequent  order passed  by  the High Court pursuant to this report  are  all invalid.   This  point  arises in this  way.   The  tribunal consisted  of  three  members with Shri  Changani  as  it,-, Chairman.  It is common ground that Shri Chhangani had filed his vakalat on behalf of Dr. Prem Chand in proceedings under

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s. 145 of the Code of Criminal Procedure on August 23, 1952, and had in fact argued the case on that date.  Shri Daphtary contends  that  since  Shri Chhangani had  appeared  in  the criminal  proceedings  in question for the opponent  he  was disqualified  from  acting as a member of the  tribunal  and this  disqualification introduces a fatal infirmity  in  the constitution  of the tribunal itself There is some force  in this  argument.  It is well settled that every member  of  a tribunal  that is called upon to try issues in  judicial  or quasi-judicial  proceedings must be able to act  judicially; and it is of the essence of judicial decisions and  judicial administration   that   judges  should  be   able   to   act impartially,  objectively  and without any  bias.   In  such cases  the test is not Whether in fact a bias  has  affected the judgment; the test 581 always  is and must be whether a, litigant could  reasonably apprehend  that  a  bias attributable to  a  member  of  the tribunal  might  have  operated against  him  in  the  final decision  of the tribunal.  It is in this sense that it,  is often said that justice must not only be done but must  also appear  to be done.  As Viscount Cave L. C. has observed  in From  United Brewerses Co. v. Bath Justices (1) " this  rule has been asserted not only in the case of Courts of Justices and other judicial tribunals but in the case of  authorities which,  though in no sense to be called Courts, have to  act as  judges of the rights of others ". In dealing with  cases of bias attributed to members constituting tribunals, it  is necessary  to make a distinction between pecuniary  interest and  prejudice so attributed.  It is obvious that  pecuniary interest, however small it may be in a subject-matter of the proceedings, would wholly disqualify a member from acting as a judge.  But where pecuniary interest is not attributed but instead  a bias is suggested, it often becomes necessary  to consider  whether there is a reasonable ground for  assuming the  possibility  of  a bias and whether  it  is  likely  to produce in the minds of the litigant, or the public at large a reasonable doubt about the fairness of the  administration of  justice.   It would always be a question of fact  to  be decided in each case.  " The principle says Halsbury,  "nemo debet  esse judex in causaproprta sua precludes  a  justice, who  is interested in the subjectmatter of a  dispute,  from acting as a justice therein " (2).  In our opinion, there is and can be no doubt about the validity of this principle and we  are prepared to assume that this principle  applies  not only  to  the justices as mentioned by Halsbury but  to  all tribunals  and  bodies  which  are  given  jurisdiction   to determine judicially the rights of parties. In support of his argument, Shri Daphtary referred us to the decision  in Rex v. Sussex Justices, Ex parte McCarthy  (3). In this case, the Court was dealing with a case &rising  out of a collision between a motor (1)  [1926] A.C. 586, 590. (2)  Halsbury’s Laws of England, Vol- XXI, P- 535, para 952. (3)  [1924] 1.  K. B. 256, 582 vehicle  belonging to the applicant and one belonging to  W. At  the  hearing  of the summons the  acting  clerk  to  the justices  was  a member of the firm of solicitors  who  were acting  for W in a claim for damages against  the  applicant for injuries received in 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 should desire to be advised on any point of law.  The appli- cant  was  convicted  in  the  case.   This  conviction  was

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challenged  by  the  applicant on the  ground  that  it  was vitiated by the improper conduct of the justices in allowing the  acting  clerk  to be associated  with  them  when  they deliberated about the merits of the case.  An affidavit  was filed  on  behalf of the justices that  they  reached  their decision  without consulting the acting clerk and  that  the acting  clerk  had in fact abstained from referring  to  the case.   This  affidavit  was accepted as  true  by  all  the learned judges who heard the case and yet the conviction was quashed.   "The  question  is"  observed  Lord  Hewart  C.J. whether  the acting clerk was so related to the case in  its civil  aspect,  as  to be unfit to act as  a  clerk  to  the justices in the criminal matter" and the learned judge added that  "the  answer to that question depends  not  upon  what exactly’was  done  but upon what might appear  to  be  done. Nothing  is to be done which creates even a  suspicion  that there  has  been an improper interference in the  course  of justice." Lush J. who agreed with Lord Hewart C.J.  likewise accepted  the affidavit made on behalf of the  justices  but observed, "that they have placed themselves in an impossible position  by  allowing the clerk in those  circumstances  to retire  with  them into their consultation room."  The  same principle  was  enunciated. with equal emphasis  in  Rex  v. Essex  Justices, Ex parte Perking (1).  This was  a  dispute between a husband and his wife and it appeared that the wife had  consulted the solicitor’s clerk in their  office  about the preparation of a deed of separation from her husband and the  lawyer acted in the matter for a time after  which  she ceased to consult him.  No mention of (1)  (1927] 2 K.B. 475. 583 the matter was made to the solicitor himself except one very short  reference  to it in a weekly report from  his  clerk. Subsequently the solicitor acted as a clerk to the  justices who  tried the case.  He stated in his affidavit that,  when acting  as  a  clerk  to the justices  on  the  occasion  in question,  he had no knowledge that his firm had  acted  for the  wife and that he was in no way adverse to the  husband. It was urged that the decision of the justices should be set aside  as the justices were not properly constituted and  it appears also to have been suggested that the decision might, perhaps,   have  been  influenced  by  a  prejudice   though indirectly  and  to  a very  small  extent.   Rejecting  the argument  that  the  decision  of  the  justices  had   been influenced  even remotely by the impropriety alleged,  Avory J.  stated  that "though the clerk to the justices  and  the ’justices  did  not  know that his firm had  acted  for  the applicant’s wife, the necessary, or at least the reasonable, impression,  on  the  mind of the applicant  would  be  that justice was not done seeing that the solicitor for his  wife was acting with the justices and advising’ them on the hear- ing of the summons which she had taken against him." It  has, however, been urged before us by Shri  Umrigar,  on behalf  of the Advocate-General, that this principle  should not  be  applied  to the  proceedings  before  the  tribunal appointed under the Bar Councils Act.  He contends that  the tribunal  is  not  empowered to. pass final  orders  on  the enquiry  and  that the report made by the  tribunal  is,  in every case, to be submitted to the High Court for the  final decision of the High Court.  We are not impressed with  this argument.  If it is true that in judicial or  quasi-judicial proceedings justice must not only be done but must appear to be  done to the litigating public, it is equally  true  that when a lawyer is charged for professional misconduct and  is given the privilege of being tried by a tribunal of the  Bar

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Council, the enquiry before the tribunal must leave no  room for a reasonable apprehension in the mind of the lawyer that the tribunal may have been even indirectly influenced by any bias in the mind of any of the members of the tribunal.   In the  present  case, we have no hesitation in  assuming  that when 75 584 Shri  Chhangani  agreed  to  work as  the  Chairman  of  the tribunal,  he did not remember that he had appeared  against the appellant’s clients in the criminal proceedings under s. 145.  We are told that Shri Chhangani is a senior member  of the  Bar and was once Advocate-General of the High Court  of Rajasthan.   Besides he had not appeared in the case at  all stages  but  had appeared only once as a senior  counsel  to argue  the  matter.  It is, therefore, not at  all  unlikely that Shri Chhangani had no personal contact with the  client Dr. Prem Chand and may not have been aware of the fact that, in the case from which the present proceedings arose, he had appeared at any stage for Dr. Prem Chand.  We are,  however, inclined  to hold that this fact does not in any way  affect the legal argument urged before us by Shri Daphtary.  It  is not Shri Daphtary’s case that Shri Chhangani actually had  a bias  against  the  appellant and that  the  said  bias  was responsible for the final report made against the appellant. Indeed  it is unnecessary for Shri Daphtary to advance  such an  argument.   If  Shri  Chhangani  was  disqualified  from working  as a member of the tribunal by reason of  the  fact that  he  had appeared for Dr.’ Prem Chand in  the  criminal proceedings  under s. 145 in question, then it would not  be necessary  for Shri Daphtary to prove that any prejudice  in fact  had  been  caused or that  Shri  Chhangani  improperly influenced the final decision of the tribunal.  Actual proof of  prejudice in such cases may make the,  appellant’s  case stronger  but such proof is not necessary in order that  the appellant  should effectively raise the argument  that  the, tribunal was not properly constituted. Shri  Umrigar, however, contended that unless  prejudice  is actually  proved  the  challenge  to  the  validity  of  the constitution of the tribunal cannot be upheld and he  sought to  rely  upon  the decision in Rex v.  Williams,  Ex  parts Phillips(1) in support of this contention.  In this case the court  was  dealing  with  an  application  for  a  writ  of certiorari.   A baker had been charged under s. 4  of  Bread Act of 1836.  It was (1)  [1914] 1 K.B. 608. 585 alleged that he had sold bread otherwise than by weight  and was liable to be convicted under s. 15 of the Act.  In  fact he was so convicted.  Thereupon he obtained a rule nisi  for a  writ of certiorari to quash the conviction on the  ground that  one  of  the justices was a person  concerned  in  the business  of  a  baker.   Section  15  disqualified  persons concerned in the business of a baker to act as a justice  in the  trial of such cases.  This application for a  writ  was ultimately  rejected  by  the Court.  The  decision  of  the Court,  however,  was based substantially  on  two  grounds. Channel  J.,  who delivered the principal  judgment  of  the Court,  observed  that " when objection to a  conviction  is taken  merely by a member of the public and not by  a  party more particularly aggrieved the granting of a certiorari’ is discretionary.  Where the objection is by a party aggrieved, then,  as  a rule, a writ is issued  ex  debito.  justitiae. This  position, however, is subject to the exception that  a party  aggrieved  may by his conduct preclude  himself  from

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taking  objection to the jurisdiction of an inferior  Court. " But it is significant that the second ground on which  the judgment proceeded clearly indicates that the justice  whose presence  at the hearing was challenged under s.  15 of  the Act  by  the petitioner did not apparently  appear  to  fall within  the mischief of s. 15 of the Act at all.  "I do  not say",  observed Channel J., " whether the facts shown  would be enough to make him a person following or concerned in the business  of  a baker within the meaning of s.  15  ".  This conclusion was accepted by the two other learned judges.  It would  thus appear that the decision in this case  does  not justify   Shri  Umrigar’s  contention  that,  even  if   the constitution  of  the tribunal is held to  be  defective  or improper, the proceedings taken before the tribunal and  the orders subsequently passed in pursuance of the report cannot be  successfully  challenged  unless it is  shown  that  the defective  constitution of the tribunal had in fact  led  to the prejudice of the appellant.  We would,, therefore,  hold that  Shri  Daphtary  is right when  he  contends  that  the constitution of" the tribunal appointed by the Chief Justice of the High Court of 586 Rajasthan  suffered  from a serious infirmity in  that  Shri Chhangani,  who  had  appeared for Dr.  Prem  Chand  in  the criminal proceedings in question, was appointed a member  of the tribunal and in fact acted as its Chairman. The next question which falls to be considered is whether it was  open  to the appellant to take this objection  for  the first  time before- the High Court.  In other words, has  he or  has he not waived his objection to the presence of  Shri Chhangani in the tribunal?  Shri Daphtary does not seriously contest  the  position that the objection  could  have  been effectively  waived.   The alleged bias in a member  of  the tribunal  does not render the proceedings invalid if  it  is shown that the objection against the -presence of the member in question had not been their by the party even though  the party  knew  about  the circumstances  giving  rise  to  the allegations  about  the alleged bias and was  aware  of  his right  to  challenge  the  presence of  the  member  in  the tribunal.  It is true that waiver cannot always and in every case  be  inferred merely from the failure of the  party  to take the objections Waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was  aware of his right to take the objection  in  question. As  Sir John Romilly M. R. has observed in Vyvyan v.  Vyvyan (1)  "  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 ". If, in the present case, it appears  that  the appellant knew all the  facts  about  the alleged disability of Shri Chhangani and was also aware that he  could effectively request ’the learned Chief Justice  to nominate  some other member instead of Shri  Chhailgani  and yet  did  not  adopt that course, it may  well  be  that  he deliberately took a chance to obtain a report in his  favour from  the tribunal and when he came to know that the  report had  gone  against him he thought better of his  rights  and raised this point before the High Court for the first (1)  (1861) 30 Beav, 65, 74 54 ER. 813, 817. 587 time.   In  other words, though the point of law  raised  by Shri  Daphtary  against the competence of the,  tribunal  be sound, it is still necessary for us to consider whether  the appellant  was precluded from raising this point before  the

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High Court by waiver or acquiescence. From the record it is clear that the appellant never  raised this point before the tribunal and the manner in which  this point  was  raised  by him even before  the  High  Court  is somewhat  significant.  The first ’round of objection  filed by the appellant against the tribunal’s report was that Shri Chhangani  had  pecuniary  and  personal  interest  in   the complainant, Dr. Prom Chand.  The learned Judges of the High Court  have found that the allegations about  the  pecuniary interest  of Shri Chhangani in the present  proceedings  are wholly  unfounded and this finding has not  been  challenged before us by Shri Daphtary.  The learned Judges of the  High Court  have also found that the objection was raised by  the appellant  before them only to obtain an order for  a  fresh enquiry and thus gain time.  It may be conceded in favour of Shri  Daphtary that the judgment of the High Court does  not in terms find against the appellant on the ground of  waiver though  that no doubt appeare to be the substance  of  their conclusion.  We have, however, heard Shri Daphtary’s case on the question of waiver and we have no hesitation in reaching the  conclusion  that  the appellant  waived  his  objection deliberately  and cannot now be allowed to raise  it.   Shri Daphtary  does  not contend that at the  material  time  the appellant did not remember the fact that Shri Chhangani  had appeared  for  Dr. Prem Chand in the  criminal  proceedings. Indeed such a plea cannot be raised by the appellant in view of the affidavit which the appellant sought to place  before us  in  the  present  appeal.  -Under  this  affidavit,  the appellant’s  case  appears  to be that  until  lie  met  his advocate  Shri  Murli Manohar for filing objections  to  the report of the tribunal, the appellant did not know that Shri Chhangani  was legally disqualified from acting as a  member of the tribunal.  It is obvious that this ground necessarily implies that the appellant knew about the facts giving 588 ise to the alleged disqualification of Shri Chhangani to act as  a member of the tribunal.  In substance, the  Contention is  that though the appellant knew that Shri  Chhangani  had appeared  for Dr. Prem Chand in the criminal proceedings  in question,  he  was  not aware  that,  in  consequence,  Shri Chhangani  was  disqualified  to  act as  a  member  of  the tribunal.  It is this limited aspect of the matter which  is pressed before us by Shri Daphtary.  Shri Daphtary  contends and  no  doubt  rightly that if we are  satisfied  that  the appellant did not know about the true legal position in this matter  and  his rights arising therefrom,  his  failure  to challenge the appointment of Shri Chhangani on the  tribunal would  not raise an effective plea of waiver.   However,  in our opinion, it is very difficult to accept Shri  Daphtary’s argument  that  his  client  did not  know  the  true  legal position or his rights until he met Shri Murli Manohar.   No doubt  the appellant is a junior at the Bar but even  so  he can  claim ten years’ standing at the Bar.  Besides, he  had the  assistance of a lawyer in defending him in the  present proceedings  and  it appears extremely difficult  to  assume that  neither  the appellant nor his lawyer  knew  that  the presence  of  Shri  Chhangani  in  the  tribunal  could   be effectively  challenged by them.  We are disposed  to  think that  even a layman, not familiar with legal  technicalities and   equitable  principles  on  which  this   doctrine   of disability   has   been  based,   would   have   immediately apprehended  that the lawyer who had appeared for  Dr.  Prem Chand was authorised to sit in judgment over the conduct  of the  appellant  and that might cause  embarassnient  to  the appellant  and might lead to prejudice against him.  From  a

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purely common sense point of view of a layman, the  position was  patently  awkward,  and  so,  the  argument  that   the appellant  was  not conscious of his legal  rights  in  this matter  appears  to  us to be an  afterthought.   Since  the appellant was driven to adopt this untenable position before the High Court in seeking to raise this point for the  first time at that stage, we are not surprised that the High Court took the view that the plea had been taken late in order, to gain time and to secure a fresh enquiry in 589 the matter.  Since we have no doubt that the appellant  knew the material facts and must be deemed to have been conscious of his legal rights in that matter, his failure to take  the present plea at the earlier stage of the proceedings creates an effective bar of waiver against him.  It seems clear that the appellant wanted to take a chance to secure a favourable report, from the tribunal which was constituted and when  he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point. Then  Shri Daphtary sought to challenge the main  conclusion of  the  High  Court  that  the  appellant  was  guilty   of professional   misconduct  on  a  preliminary  ground.    He contended  that  the  High Court  judgment  shows  that  the learned Judges had considered some inadmissible evidence  in the  absence  of  the appellant and without  giving  him  an opportunity  to be heard on the said evidence and  that  had introduced an infirmity in the judgment which vitiated their final conclusions.  It appears from the judgment of the High Court  that the learned Judges sent for and looked into  the record  of Revision Application No. 31 of 1951 in the  Court of the Sessions Judge, Pali, and the record of Case No.  134 of  1951  in  the Court of  the  Sub-Divisional  Magistrate, Sojat.  Shri Daphtary has made pointed reference to the fact that the record in Case No. 134 of 1951 was sent for by  the High  Court after this matter had been argued  before  them. If we had been satisfied that the learned Judges of the High Court had taken into consideration material documents  which were not before them at the time the case was argued  before them,  we  would certainly have considered  Shri  Daphtary’s grievance  more seriously.  We are, however,  not  satisfied that  the  grievance  made by  Shri  Daphtary  against  this alleged  irregularity is really justified.  The  High  Court judgment  shows  that the appellant argued before  the  High Court  that  he  could  not have  been  concerned  with  the fabrication  of  the  false  order  because  his  subsequent conduct  showed that he was not at all interested in  seeing that the said order was implemented.. In fact, this argument has been characterised 590 by  the High Court as plausible but not sound.  It was  this argument  which provoked the reply from the other side  that in  fact  the fabricated order had been implemented  and  in support of this reply reference was made to the  application made  by  Dr. Prem Chand and his men in which  it  had  been specifically alleged that the appellant’s clients had  taken possession of the crops and that they had also removed them. This application had been made on September 24, 1951, and it requested  the  Sub-Divisional  Magistrate  to  prevent  the appellant’s  clients from taking illegal possession  of  the land  and  removing  the  crops.   It  is  these  two  rival contentions  which the learned Judges of the High Court  had to  examine.  The judgment shows that it  was  substantially with  a  view  to satisfy themselves  that  the  application referred  to by the respondent before the High Court in  the course  of the argument had in fact been made that the  High

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Court  subsequently  called for and  examined  the  relevant records.  It may be that in the earlier part of the judgment the learned Judges have stated somewhat generally that  they had looked at the records of both the cases; but it is clear from  the  reasons  given by the  learned  Judges  that  the perusal  of the records in the said two cases had played  no part  in  the  final decision of the High  Court.   We  are, therefore,  not satisfied that the procedure adopted by  the High  Court  in dealing with this matter  suffers  from  any serious irregularity as a result of which their final orders should be set aside and a fresh hearing of the matter should be ordered. Then  remains  the  question of the merits  of  the  finding recorded by the High Court.  Shri Daphtary himself was aware that this part of his case is bound to be weak in an  appeal which  has been admitted on Special Leave under Art. 136  of the Constitution.  Both the tribunal and the High Court have made  concurrent findings of fact against the appellant  and it is difficult to accept the argument that this finding  of ’fact  should  be  re-examined on the merits by  us  in  the present  appeal.   We may, however, incidentally  point  out that  there  are  some salient features of  the  case  which unequivocally support the view taken by the High 591 Court  against the appellant.  It is common ground that  the appellant’s  clients  were not present before  the  Sessions Judge  on  September  6,  1951.  It  is  admitted  that  the appellant  was  present  and  that  he  took  the   envelope containing  the order to the Sub-Divisional Magistrate.   It may be that, in the State of Jodhpur, lawyers practising  in subordinate courts sometimes assisted the court officers  by taking packets containing judicial orders from one court  to another; but, if the appellant’s clients were not present in the court, it is difficult to understand how the  fabricated order  came  to  be prepared  without  instigation  by  the, appellant.   It is inconceivable that officers of the  court would  suo motu think of fabricating the order.   The  order was intended to benefit the appellant’s clients and, on  the whole,  it is an irresistible inference that  the  appellant must  have corrupted the officers of the court by the  offer of  illegal consideration and induced them to fabricate  the order.  Shri Daphtary attempted to rely on the view taken by the learned Sessions Judge in the enquiry which he held soon after  he learnt about the issue of this  fabricated  order. We are free to confess that we are not at all satisfied with this  enquiry  and  its final decision.   However.,  we  are really not concerned to consider the merits of this  enquiry and we cannot attach any importance to an argument based  on the  view  taken  by  the learned  Sessions  Judge  in  this enquiry.   The High Court has taken the view, and  we  think rightly,  that  the  conduct of Shri  Loya  should  also  be examined  as  it  is obvious that both Shri  Loya  and  Shri Maghraj were interested in persuading the Sessions Judge  to take the view that the fabrication of the order was due to a mistake committed by Shri Maghraj.  The theory of a  mistake committed  by  Shri  Maghraj  is,  in  our  opinion,  wholly unreasonable,  if  not fantastic.  The order passed  by  the learned Sessions Judge on September 6, 1951, is clear beyond any doubt.  Shri Maghraj read this order and it is suggested that  he  misconstrued its effect.  How an  order  directing notice of the application to the opponent along with a  copy of  the application to be served on the opponent could  ever have been construed to mean an order 76 592

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Directing the issue of stay, it is impossible to understand. Then  again, the order actually issued is elaborate  in  its terms  and  its  object  clearly was  to  require  the  Sub- Divisional Magistrate to give effect to the prayers made  by the   appellant  in  his  application  without  any   delay. Besides,  the endorsement made by Shri Maghraj showing  that the  order  had  been  complied  with  and  his  silence  on September  12, 1951, when the learned Sessions  Judge  found that  notice had not been served are very eloquent. If  Shri Maghraj  had  committed  an honest mistake,  he  would  have immediately  reported  to the learned  Sessions  Judge  that notice had not been issued and instead erroneously an  order of  stay  had been sent in the said  proceedings.   Besides, when Shri Maghraj gave evidence in the present  proceedings, he  did  not adhere to the theory of mistake.   His  present version is that he prepared the draft order at the  instance of  the  appellant before the case was argued  and  when  he received it back duly signed by the Reader Shri Loya, it was given to the despatcher and from him it reached the hands of the  appellant.  There is no doubt that Shri Maghraj  is  an accomplice  and,  so like all accomplices, he has  tried  to minimise the part played by him in this transaction.  It  is true   that   the   evidence  against   the   appellant   is substantially  circumstantial and there is no a  doubt  that the  finding  against the appellant cannot be made  on  such circumstantial evidence unless the evidence is wholly incon- sistent  with  his innocence and leads irresistibly  to  the inference  of  his guilt.  The judgment of  the  High  Court shows  that the learned judges were fully conscious of  this legal  position.  They have held that, having regard to  all the circumstances of the case it is impossible to hold  that the  fabricated  order could have come into  existence.  and would  have  been despatched hurriedly  without  the  active assistance and collaboration of the appellant. Shri   Daphtary  then  argued  that  the  failure   of   the complainant to examine Shri Loya, the Reader, was deliberate and   he  suggested  that  adverse  inference  against   the complainant should be drawn in consequence.  Indeed this was the only point which Shri 593 Daphtary placed before us seriously in regard to the  merits of  the  finding  recorded by the  High  Court  against  the appellant.   It may be conceded in favour of  Shri  Daphtary that,  even in quasi-criminal proceedings like the  present, all important and relevant evidence must be laid before  the tribunal;  but  this requirement is always  subject  to  the proviso  that it is generally for the prosecutor who  is  in charge  of  the case to decide which of  the  witnesses  are necessary for the unfolding of the case.  The prosecutor  no doubt  must  act bona fide and fairly by the court  and  the person  against  whom  the proceedings  have  been  started. Acting  bona  fide, if the prosecutor takes  the  view  that certain witnesses need not be examined, generally the  court would be reluctant to draw an adverse inference against  the prosecution.   Besides,  in the present case,  there  is  no justification for drawing any such adverse inference against the  complainant  because  Shri Loya is no  better  than  an accomplice and it is difficult to assume that the failure of the complainant to examine an accomplice can ever give  rise to an adverse inference against the complainant’s case.   If that be the true position, it would be idle to contend  that the  finding of the High Court is vitiated by reason of  the fact that the High Court did not consider the effect of  the complainant’s  failure  to  examine  Shri  Loya  before  the tribunal.   Incidentally this point does not appear to  have

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been pressed before the High Court.  In the result, we  have no hesitation in holding that no case has been made out  for our  interference  with the conclusions of  the  High  Court under Art. 136 of the Constitution. That  leaves  only  one point to consider and  that  is  the correctness or the 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  contends  that this  order  is unduly severe and he has appealed to  us  to consider the fact that the appellant was a junior at the Bar and  the  removal  of  his  name  from  the  roll  of  legal practitioners  would  deprive  him  of  the  source  of  his livelihood.  We are not impressed with this argument at all. Unfortunately 594 it  appears  that  this,  is not the  first  time  that  the appellant   has   come  into  trouble  on  the   ground   of professional  misconduct.   In 1952 he was suspended  for  a period  of two months for misappropriating some money  given to him by his clients for the payment of court fee.  This is one  fact  which  is against the  appellant.   Besides,  the misconduct which is proved in this case is, in our  opinion, of  a very serious character.  In the administration of  law and  justice, lawyers have to play an important part.   They are, in a sense, officers of the court and as such they  are given special rights and privileges.  The profession of  law enjoys  high and respected status and reputation of its  own and  this status carries with it corresponding  obligations. Naturally  the  Bar  must zealously  safeguard  the  highest standards  of  professional  morality  and  integrity.    In fairness  to  the Bar, we ought to add that  cases  of  this nature are very rare but unfortunately when such cases  come before  the courts, the courts must take a serious  view  of such  reprehensible lapses and must pass  deterrent  orders. It  is our duty to express our disapproval of such  unworthy practices  as  emphatically  as we  can  because  the  legal profession  must be saved from persons who do not  feel  any hesitation  in  corrupting public officers by  unworthy  and illegal  considerations  for  the  temporary  and  immediate benefit of their clients.  We must, therefore, hold that the order passed by the High Court directing the removal of  the appellant’s name from the rolls is fully justified.  In  the result, the appeal fails and must be dismissed with costs. Appeal dismissed. 595