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PETITIONER: NILGIRIS BAR ASSOCIATION

       Vs.

RESPONDENT: TK MAHALINGAM AND ANOTHER

DATE OF JUDGMENT:       08/12/1997

BENCH: M.K. MUKHERJEE, K.T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Thomas, J.      Nilgiris Bar Association  (Tamil Nadu) is in no mood to reconcile with  the easy  escape made  by an imposter in the legal profession  from the  penal clutches  of law.  Without enrollment with  any Bar  Council and  without any  academic qualification to  practise law  he manage  to get entry into the legal  profession by  wangling  a  membership  from  the Nilgiris Bar  Association, and flourished in his practice as an advocate  before all  the courts including session courts in the  district for  a long  period of eight years. But his hay days  did not last longer as the vigilant Bar discovered that he was an interloper in the profession. A complaint was lodged with  the police  and after  investigation a  charge- sheet was  laid before the Judicial Magistrate concerned. He then adopted  a strategy  to skip out of the penal tentacles by pleading  guilty to  the charge  and praying for mercy of the Court.  The strategy  worked as  the magistrate released him under  Section 4  of the Probation of Offenders Act 1958 (for short ‘the Act’)      The concerned  Bar Association  aggrieved by the manner in which  they and  the litigant  public were hood-winked by the said  person for  a pretty  long period,  approached the High Court  of Madras  in revision  challenging the order of the magistrate.  A single  judge of  the High  Court,  after about ten  years, passed  the impugned  order  declining  to interfere, but  made an  endeavour to  console  the  Bar  by directing   the delinquent  person to  donate a  sum of  Rs. 15,000/- to  the  Association  for  buying  books  to  their library. The accused person promptly dispatched a bank draft containing the  amount to  the Bar Association but they with matching promptness  spurned down  the ill-gotten  money and rushed to this Court with the Special Leave Petition seeking redressal of their grievances. Special leave granted.      A few  more facts  may  be  necessary.  Respondent  (TK Mahalingam) approached  the Nilgiris  Bar Association in the year  1978   for  admitting  him  as  a  member  therein  by representing that  he was  a  qualified  legal  practitioner having enrolled  himself with the State Bar Council. Without suspecting the bona fides of the application he was admitted

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to the membership of the Bar Association.      He started his practice at the new station and built up a good  clientele and involved himself in all the activities of the  Association. He  contested for the post of Secretary and won it. In this way, he continued till 1985. But by then some members  of the  Bar who  developed  suspicion  of  his credential made  secret inquiries and discovered that he was imposturing as  an advocate  and his credentials were bogus. So they brought it to the notice of the Bar Association who, in  an  emergent  meeting,  decided  to  launch  prosecution against him.  Respondent, sensing  the developments  against him ducked  out of the scene. A complaint was filed with the local police  for offences of false personation and cheating etc. The  police, after  investigation,  charge-sheeted  the case of  for offences  under Sections  419 and  420  of  the Indian Penal Code.      Learned single  Judge of  the Court, while disposing of the revision,  expressed appreciation  for the stand adopted by the  Bar and  praised their alacrity and perseverance for restoring the  reputation of  that Bar  "by cleansing itself from the dupe practised by the respondent." However, learned single judge  advised the  Bar  to  forget    the  past  and conveyed his  view that  if such  an act  of magnanimity was shown, then  "the revered  nobility of  the legal profession will certainly  be enhanced".  After administering  the said advise learned single judge made the following observations:      "While appreciating the stand takne      by the  Nilgiris  Bar  Association,      ’to   maintain    purity   in   the      procession,’ I  am satisfied,  that      this  is  an  apt  case  where  the      petitioner has  been rightly  given      an opportunity  to  reform  himself      and that such process of reform has      commenced  is   evident  from   the      conduct of  the second  respondent,      who has expressed his repentance in      writing before  this  Court,  apart      from offering  to the  Nilgiris Bar      Association, a  decent sum of money      as a  compensation for  the harm he      had  caused,   by  his   unbecoming      conduct in the past."      We find  considerable force  in the  submission of  the appellant Bar  Association that  if  they  had  conveniently forgotten the conduct of the respondent after receiving some pittance from  a bogus  practitioner the revered nobility of the legal  profession would  not have  enhanced, instead  it would only  have further  tarnished their  image and lowered them further  in the  estimation of  the public.  We cannot, therefore, persuade ourselves to approve the advise tendered by the learned single judge to the appellant-Bar Association and to  ignore  the  serious  impairment  inflicted  by  the respondent who  cheated the  seats of justice as well as the litigant public  continuously for  a long  period  of  eight years.      Learned single  judge seemed  to have been persuaded by two subsequent  developments as  for the  respondent. One is that the  respondent joined  a course of law education later and passed a law a degree in year 1988 and got himself as an advocate in  the Karnataka State Bar Council. Second is that respondent expressed  repentance over  his conduct  and  has since been conducting properly.      Appellant  disputed   the  above   two  premises,   and according to  them even  the  law  degree  which  respondent

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claims to  have  obtained  later  is  shrouded  in  doubtful authenticity as  the same  was managed  from an  institution which "issues law degrees without attendance in violation of the Bar  Council of  India Rules  (para iv)  regarding legal education." Appellant  further submitted that respondent was subsequently involved  in a  criminal case for assaulting an advocate in  open court.  Of course,  these two  allegations have been repudiated by the respondent. Even otherwise we do not think  it necessary  to go  into the  correctness of the claim of the respondent regarding the subsequent conduct nor the stand  adopted by  the appellant-Bar  Association on it. They are  not germane  for  consideration  on  the  question whether respondent  should have  been allowed  to enjoy  the benefits of the ameliorative reliefs provided in that Act.      Section 4  of the  Act empowers of the Court to release the convicted  person on  his entering  into a bond when the person is  found quilty  of having  committed an offence not punishable death or imprisonment for life. But the provision is saddled  with certain conditions for invoking the reliefs thereunder. Sub-section (1) of Section 4 reads thus:      "When any person is found guilty of      having  committed  an  offence  not      punishable    with     death     or      imprisonment for life and the Court      by which the person is found guilty      is one  opinion that, having regard      to the  circumstances of  the  case      including the nature of the offence      and the  character of the offender,      it is  expedient to  release him on      probation  of  good  conduct,  then      notwithstanding anything  contained      in any other law for the time being      in force, the court may, instead of      sentencing  him   at  once  to  any      punishment,  direct   that  he   be      released on  his  entering  into  a      bond, with  or without sureties, to      appear and  receive  sentence  when      called upon  during such period not      exceeding three years, as the court      may direct,  and in the meantime to      keep  the  peace  and  be  of  good      behaviour."      By the  words so  couched in the sub-section Parliament has  taken   care  to   emphasize  that  before  the  relief (envisaged in the provision) is granted court must take into account the  circumstances of  the case,  among  which  "the nature of  the offence  and the  character of  the offender" must  have   overriding  considerations.   After   bestowing judicial consideration on those factors, the court must form an opinion  as to  whether it  would be  appropriate in that case to  release the particular accused therein as envisaged in the  sub-section. This  Court has observed time and again through decisions  that the benefits mentioned in Sections 3 and 4  are subject  to the  limitations laid  down in  those provisos and that the word ’may’ in Sections 4 of the Act is not be  understood as  ‘must’ in Section 4 of the Act is not be   understood as  ‘must’ in Section 4 of the Act is not be understood as  ‘must." Ramji  Missar vs. State of Bihar: AIR 1963 SC  1088; Rattan  Lal vs. State of Punjab; 1964 (7) SCR 676 Isher  Das vs.  State of  Punjab : AIR 1972 SC 1295; Ram Parkash vs. State of Himachal Pradesh: AIR 1973 SC 780.      When considering  the nature  of the  offence the court must have  a realistic  view on  the gravity of the offence,

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the impact  which the  offence could have had on the victims and whether  considerations of  deterrence can be overlooked etc. No  fixed yard-stick  can be  laid down  to measure the nature of  the offence  for affording  or denying the relies envisaged in  Section 4 of the Act. However, as the court is enjoined to  take into  consideration the  character of  the offender it  is well  to remember  that character is not the abstract opinion  in which  the offender  is held by others. The word  "character" si  not defined  in the Act. Hence, it must be  given the ordinary meaning.  According to Webster’s New   International   Dictionary   "character"   means   "an attribute, or  quality especially a trait or characteristics which serves  as an  index to  the  essential  or  intrinsic nature of  a person".  In Black’s Law Dictionary "character" is defined  as "the  aggregate of  the moral qualities which belong to  and distinguish an individual person; the general result  of   the  one’s   distinguished   attributes".   The celebrated lexicographer  has at  the same  time pointed out the following aspects also about the subject:      "Although character  and reputation      are often  used  synonymously,  the      terms     are      distinguishable.      ‘Character’s  is  what  a  man  is,      ‘reputation’ is what he is supposed      to be  in what  people say  he  is,      ‘Character’ depends  on  attributes      possessed   and   ‘reputation’   on      attributes which others believe one      to possess.  The  former  signifies      reality and  the latter merely what      is  accepted   to  be   reality  at      present."      Character of  the offender in this case reflects in the modality in  which he  was inveigling  in a noble profession duping everybody concerned. In such a view of the matter the two courts could not have formed an opinion in favour of the character of  the respondent. It is apposite to observe here that learned single judge did not mention anything about the character  of  the  respondent  qua  the  accusations  found against him.      While advertising  to the nature of the offence we bear in  mind   the  necessity  to  weed  out  imposters  in  the profession  which  require  special  learning  and  training particularly at a time when such imposters are proliferating in the  society. Any  leniency shown  to  such  wiles  would certainly tend  to sprout  up weeds  at meaning  scales. The case of  the respondent  is not  one of single lapse or even multiple delinquencies  confined to  a few  days.  The  long period  of   8  years  during  which  the  moun-te-bank  had successfully indulged  in interloping  as  a  qualified  and learned  counsel   would  have  considerably  eroded  public confidence  in   the  probity   of  the   legal   profession particularly in  that area  and besmirched the reputation of that Bar  as the  public might  be looking  upon every other member of  the profession  with suspectful  eyes. The  trial magistrate  and  the  learned  single  judge,  who  found  a repenting mind in the respondent, have failed to notice that repentance had  dawned on  him, even  if that also was not a pretension, only  when he  reached a cul-de-sac. When he was masquerading  himself   every  day   in  sartorial  costumes prescribed  only   for  accredited   members  of  the  legal profession it did not occur to him even once during the long period of  eight  years  to  think  of  repentance.  On  the contrary, he  was flourishing  at large  and had even become the Secretary  of the  Bar Association.  If the vigilant Bar

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has not discovered the trickery, perhaps he would still have persisted in  his art  of cheating. For all these reasons we are of the definite opinion that the crimes committed by him should have been dealt with deterrently and the ameliorative reliefs envisaged  in Section  4 of the Act should been kept at bay.      We, therefore  set aside  that  part  of  the  impugned judgments by  which respondent  was released under Section 4 of the  Act. For  determining the  measure of sentence to be passed on  him we  are not against taking into account those factors  which   the  learned  single  judge  has  found  as mitigating grounds.  Added to  them is  the long interval of time between  the date  of his conviction by the trial court and now.  For all  these, imprisonment  for six months and a fine would be sufficient to meet the ends of justice in this case.      We,  therefore   sentence  him   to  undergo   rigorous imprisonment for  six months  under each  count (Section 419 and 420  IPC) and  to pay  a fine  Rs. 5,000/-  each  (total Rupees ten  thousand). In  default of  payment of  which  he shall undergo  a further  period of  imprisonment for  three months. The fie, if collected, shall be added to the fund of the Legal Service Board in the State of Tamil Nadu.      We direct  the trial  Magistrate (Judicial  First Class Magistrate, Udhagmandalam)  to take  necessary steps  to put the respondent  in jail  for undergoing the sentence imposed on him. Appeal is allowed accordingly.