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PETITIONER: O.   N. MAHINDROO

       Vs.

RESPONDENT: DISTT.  JUDGE, DELHI & ANR.

DATE OF JUDGMENT: 04/09/1970

BENCH: HIDAYATULLAH, M. (CJ) BENCH: HIDAYATULLAH, M. (CJ) MITTER, G.K. RAY, A.N.

CITATION:  1971 AIR  107            1971 SCR  (2)  11  CITATOR INFO :  RF         1980 SC 674  (8)  R          1983 SC 990  (9)  RF         1983 SC1125  (7)  APL        1989 SC 245  (12)

ACT: Advocates  Act  1961, ss. 44  and  10(3)-Review-Bar  Council cannot   review   aecision   of   Disciplinary    Committee- Disciplinary Committee’s power of review-Grounds for  review need not be similar or analogous to those found in s. 114 or 0.47  R. 1 of Code of Civil Procedure Principles  of  antre- fois  convict  or  antre- fois acquit  also  not  applicable Review  petition  must be dealt with  objectively-Review  by Supreme  Court, considerations for-Appeal to  Supreme  Court under s. 38 Advocates Act, Scope of-Professional misconduct- Proof of.

HEADNOTE: The  appellant was an advocate of this Court.   A  complaint was  made  by the District Judge Delhi against him  on  29th February,  1964  to the Bar Council of the  State  of  Delhi alleging  that  he had mutilated a document by  tearing  two pieces  from  it while examining a judicial  record  in  the courtroom  in  the presence of the junior  clerk.   The  Bar Council  of  the State of Delhi referred the matte,  to  its Disciplinary  Committee.  The explanation of  the  appellant before the Disciplinary Committee was of the Judges and  the staff of the District Court, Delhi.He  denied that  the document was important or that he mutilated it.He   asked for summoning the torn     document and the pieces but onlythe document was received.  According to the District Judge  the pieces  were  misplaced  and   could  not  be  found.    The Disciplinary  Committee held the appellant guilty of  having mutilatedthe document on the basis of the oral evidence of the junior clerk.  Theappellant,  thereupon, appealed  to the  Bar Council of India but the Disciplinary Committee  of the  Bar Council of India dismissed the appeal.  His  appeal to  this  Court under s. 38 of the Advocates  Act  was  also dismissed at the preliminary hearing.  The appellant filed a review petition before the Disciplinary Committee of the Bar Council  of India but it was rejected.  The  appellant  then

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filed  a  writ petition in the High Court of  Punjab  (Delhi Bench)  challenging s. 38 of the Advocates Act and r. 7  and Or. 5 of the rules of this Court as ultra vires Art.  138(2) of  the Constitution.  The writ petition was admitted and  a rule nisi was issued.  Meanwhile this Court in dealing  with a review petition filed by the appellant had issued a notice to  the  District Judge to find out the  torn  pieces.   The District  Judge reported that the mutilated document  was  a copy  of the lawyer’s notice and that only a small piece  of half  inch was missing from the bottom of the  second  page. The  pieces were not traceable.  He also reported  that  the junior clerk was not sure that any thing was written on  the torn  pieces  but according to his  recollection  the  words ’true  copy’  followed  by  the  signature  Vir  Bhan’  were written. This.   Court  dismissed the  review  petition  on September, 26, 1966.  Thewrit  petition  in  the   High Court was also dismissed by a single Judgeon October  12, 1966.   In the proceedings it appeared that the document  in question  had  not been relied upon by the party  which  had filed it. A  letters  patent appeal was  filed  against Single  judge’s  judgment and order.   Before  the  Division Bench  the validity of s. 38 of the Advocates Act alone  was challenged.   The  Division Bench dismissed the  ,)peal  but

JUDGMENT: CIVIL  APPELLATE JURISDICTION : Civil Appeals Nos. 2637  and 2638 of 1969. Appeals by special leave from the order dated July 12,  1969 of  the  Bar Council of India, New Delhi in  Petition  dated January  17, 1969 at item No. 42 of 1969 and from the  order dated  October 4, 1969 of the Disciplinary Committee of  the Bar  Council  of  India in Review Petition  No.  2  of  1969 respectively. C.   K.  Daphtary,  A.  N.  Mulla,  Bishan  Narain,  W.   S. Barlingay,  and O.N. Mohindroo, for the appellant  (in  both the appeals.). M.   Natesan, Uma Mehta, D. N. Misra and B. P. Singh, for respondent No. 2 (in C.A. No. 2637 of 1969). A.S.  R. Chari and B. Datta, for the intervener (in  both the appeals). The Judgment of the Court was delivered by Hidavatullah, C.J.-The appellant in these two appeals is  an advocate any of this Court, who on complaint by the District Judge,  Delhi, 29 February, 1964, to the Bar Council of  the State  of Delhi, was held guilty of professional  misconduct and  suspended from practice for a year by the  disciplinary committee  of  the  said Bar Council.  He  appealed  to  the disciplinary committee of the Bar Council of India under  s. 37  of  the Advocates Act.  The appeal was  dismissed.   His appeal  to this Court under S. 38 of the Act  was  dismissed summarily  at the preliminary hearing.  The  charge  against him  was  that  while inspecting a judicial  record  in  the company  of Mr. Kuldip Singh Advocate, he tore out 2  pieces of  paper from an Exhibit (C-1).  The pieces were thrown  by him  on  the  ground.   The  clerk  in-charge  reported  the incident to the District Judge and the complaint followed. The suit, record of which was being inspected, arose in  the following circumstances.  On February 6, 1963 Mr. Anant  Ram Whig, an advocate, sent a notice on behalf of one Sarin to a certain  Ramlal  Hans  and his wife claiming a  sum  of  Rs. 4,3701as  reward  for the success of their  daughter  at  an examination including tuition fees.  Sarin was preparing the girl  for  the  B.A. examination.  The claim  of  Sarin  was

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repudiated  by  Ramlal Hans in a reply  dated  February  11, 1963.   The  matter was referred to the arbitration  of  Mr. Mansaram, Municipal Councillor, Delhi by an agreement  dated February  24,  1963.  The arbitrator gave an award  for  Rs. 1,000/-  in  favour of Sarin.  The award was  filed  in  the Court  of  Mr. Brijmohanlal Aggarwal, Sub-Judge,  Delhi  for being made a rule of the court.  Ramlal Hans’ engaged 15 the  appellant  as  advocate.  The  appellant  In  his  turn engaged two other advocates to conduct, the actual cases and ’also  filed his vakalatnama.  A copy of the notice sent  by Mr.  Whig was filed in the case (Ex.  C-1) but was  not  yet proved. On February 24, 196-3 the appellant went for the, inspection of  the  record  of the case in the company  of  his  junior lawyer.  The file was given by Amrik Singh, the junior clerk of  the  Bench.  Amrik Singh then went out of the  room  but soon  returned to his seat.  Later he charged the  appellant of having torn 2 pieces from the document (which was Ex.  C- 1)  and  picked up the alleged pieces from the  floor.   Mr. Aggarwal  then arrived on the scene.  The statement  of  the appellant was recorded.  The Sub-Judge also obtained reports from his junior and Assistant clerks and made a report  With the report he sent the Exhibit said to be mutilated and  the two  pieces  said  to be the torn pieces of Ex.   C-1  in  a sealed envelope.  A complaint was also made to the  District Judge  by Sarin.  The District Judge then made a report  and wrote that the document was important in the case and action was, therefore, called for. The  disciplinary committee of the Bar Council of the  Union Territory  of  Delhi took up the matter under s. 35  of  the Advocates  Act.  The explanation of the advocate was  called for.  He explained that the charge was false and it was  due to  the  ill-will  of Mr. Aggarwal  and  his  staff  because earlier  he  had made some serious allegations  against  Mr. Kalra,  Sub-Judge Ill Class in a transfer petition  and  had also   started  contempt  proceedings.   According  to   the appellant this led to hostility between the judges and their staff and him.  He denied that the document was  imimportant or  that  he  had mutilated it.  He  asked  inter  alia  for summoning  the  torn document and the pieces and  they  were summoned.   The original document was received but  not  the pieces.  The District Judge informed the Committee that  the pieces  were  misplaced and were not found.   The  appellant maintained that they were put in the same envelope with  the exhibit and he alleged that they were suppressed to deny him a  legitimate defence that they were not a part of the  same document. Oral  evidence was recorded.  On the basis of the oral  evi- dence  of  Amrik Singh, the petitioner was  held  guilty  of having  wantonly  mutilated the  document.   The  petitioner wanted  to take a size to size photostat of the exhibit  but his request was turned down. As stated already his appeal to the Bar Council of India was dismissed  by the disciplinary Committee of the Bar  Council of  India and later his appeal to this Court  was  dismissed summarily 16 on April 18, 1966 at the preliminary hearing.  Mr. A. K. Sen appeared for the appellant. The  appellant  then seems to have lost his head.   He  made successive applications of various kinds.  He filed a review petition on April 23, 1966 before the disciplinary Committee of the Bar Council of India but it was rejected on April 29, 1966.  The appellant then filed a writ petition in the  High

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Court of Punjab (Delhi Bench) on May 23, 1966 challenging s’ 3 8 of the Advocates Act and Rule 7 of Order V of the  Rules of   this   Court  as  ultra  vires  Art.  138(2)   of   the Constitution.   The  Writ Petition was admitted and  a  rule nisi  was  issued.  The appellant before this had  filed’  a review petition in this Court and on September 12, 1966 this Court issued a notice to the District Judge to find out  the torn  pieces.  The District Judge reported on September  22, 1966  that the mutilated document was a copy of  a  lawyer’s notice  and that only a small piece of I" was  missing  from the  bottom  of  the  second sheet.   The  pieces  were  not traceable.   He also reported that the junior clerk was  not sure  that  anything  was written on  the  torn  pieces  but according to his recollection the words ’True copy’ followed by the signature ’Vir Bhan’ were written, that this was  not stated  by  him  in his earlier  statements,  and  that  the Assistant Clerk also said that according to his recollection something ’Was written in ink on those pieces but could  not say  what  it was.  The Supreme Court dismissed  the  review petition  on September 26, 1966.  The appellant appeared  in person at the hearing. The writ petition in the High Court was also dismissed by  a single Judge on October 12, 1966.  The order shows that  the original of Ex.  C-1 was not relied upon by Mr. Vir Bhan and that he had not attempted to prove the copy, as there was no context about the notice.  It was contended before the  High Court that-there was no motive to tear two tiny pieces  from a document which was not in issue.  The High Court seemed to agree with this but speculating as to possible motives  held that in view of the evidence of Amrik Singh, the question of motive  was immaterial.  The High Court did not  go  further than this into facts. The  learned  single Judge considered the objection  to  the constitutionality  of the rules of this Court and  overruled it.   He held that questions of fact could not be gone  into in  view  of  the successive appeals  and  review  petitions dismissed by the appropriate authorities.  A Letters  Patent Appeal  was filed against the single Judge’s  judgment  ’and order.   That  appeal was heard by a Division Bench  of  the High  Court  of Delhi and dismissed on  December  22,  1966. Before the Division Bench the validity of s. 38 17 of the Advocates Act alone was challenged.  An objection  on merits  was rejected because the order of  the  disciplinary committee of the Bar Council of the Union Territory was said to have merged in the order of the disciplinary committee of the  Bar Council of India and later in that of  this  Court. The  High  Court  granted a  certificate.   This  Court  was represented at the hearing in as it was made a party to  the writ petition. The appeal filed in this Court as a result (C.A. No. 240  of 1967) was dismissed by the Constitution Bench on January  8, 1968.   Only the validity of s. 38 of the Advocates Act  and rules  of this Court was considered.  The hearing was on  14 and 15 December 1967.  The appellant was in person.  The Bar Council  of  Delhi  and their  disciplinary  committee  were represented by Mr. Avadh Behari Advocate, Mr. P. Rama  Reddy and Mr. A. V. Rangam represented the disciplinary  committee of the Bar Council of India, the Supreme Court (a party) was represented by Mr. Purshottam Tricumdas and Mr. 1. N. Shroff and the Attorney General was represented by Mr. P. Tricumdas and Mr. S. P. Nayyar.  The hearing time was taken up by  the appellant  and Mr. Purshottam Tricumdas, Mr. P.  Rama  Reddy argued  for  10 minutes and Mr. Avad Behari was  not  called upon.

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The appellant then tried another review petition (No. 21  of 1968)  on the basis of the fresh evidence and report of  the District  Judge  Delhi.  This Court (on  December  2,  1968) summoned  the  record  and allowed the  petitioner  to  take photostats  of the Ex.C-I. The appellant also filed  a  writ petition  under Art. 32 of the Constitution (W.P. No. 69  of 1968).  He first applied (C.M.P. 1171/68) for withdrawal  of the writ petition and then withdrew that application itself. The  two, matters were placed before the Court on April  11, 1968  and  at one time it appeared that Shri A. K.  Sen  had argued  both  of them but later Shri A. K. Sen said  he  had only  appeared  in the writ petition and not in  the  review petition  and  it was still undisposed of.  As a  result  on August  12,  1968,  the review petition was  ordered  to  be placed  again for hearing.  On the Court observing  that  on the  basis of new material, review should be asked for  from the Bar Council of India, the review petition was  withdrawn on  January  6,  1969.   The  review  application  was   not dismissed on merits. The  appellant then went before the Bar Council  asking  for reconsideration  of his case under ss. 44 and 10(3)  of  the Advocates Act.  The Bar Council passed an order through  its Chairman (Mr.  H. D. Shrivastava).  The Bar Council of India held that it had no jurisdiction of any kind to reopen  this matter ,although the embarrassment involved in reconsidering the  matter was removed by the observations of  the  Supreme Court.   According  to  the  Bar  Council  the  disciplinary committee was not acting 18 as  a  subordinate delegate of the Council and  the  general power  to  safeguard  the  interests  of  the  Bar  or   any individual member could only refer to such interests as  had not ’been negatived by judicial process under the  Advocates Act.   The  petition  was, therefore,  dismissed.   The  Bar Council, however, went on to observe               ".............But  we  cannot part  with  this               matter   without  expressing  our   sense   of               uneasiness  which arises from  the  production               before  us  of fresh material  particularly  a               photostat  of the document said to  have  been               torn  by  the  petitioner.   A  look  at   the               document opens out a .reasonable  possibility,               that  a  reconsideration by  the  disciplinary               committee  of this Council may lead to a  dif-               ferent  result.   The  petitioner  may  if               so  advised formally ask for a review  by  the               Disciplinary Committee." The appellant then again applied for review of the order  by the disciplinary committee of the Bar Council of India.   In a  fairly long order the disciplinary committee declined  to reopen  the  case.  The disciplinary committee  found  fault with  the single ,Judge of the High Court of Punjab for  not rejecting  the  writ petition on the short ground  that  the High Court could not issue a writ to the Supreme Court.  The disciplinary  committee also found it necessary  to  comment upon  the  order of this Court inquiring from  the  District Judge, Delhi how the pieces kept in safe custody were  lost. The disciplinary committee also commented upon the action of the  District Judge in re-examining witnesses who  had  been examined before. The  Disciplinary committee pointed out that in  the  second review  petition  decided by the Committee on  February  26, 1967,  it refused to take into consideration the  report  of the  District Judge as it was not evidence in the  case  and because the Supreme Court also did not appear to have  acted

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upon  it when dismissing the review petition before it.  The Supreme  Court’s  order  was not a speaking  order  but  had merely dismissed the review petition summarily. The  disciplinary committee next consideard how  the  matter came  before  them.   They refused to take  into  account  a ’casual  observation’  of  the  Judges  in  the  course   of arguments before them in the review petition in this  Court. They  speculated that parhaps the appellant was  advised  to withdraw the review petition which otherwise would have  had to be dismissed.  The Committee very reluctantly looked into the  statements of witnesses recorded by the District  Judge when he reported about the loss of the two pieces of  paper. The  matter  was heard and the disciplinary  committee  took time  to  consider their order.  The  disciplinary  committe held that in considering review application to 19 themselves  they should not be over-technical and that  they would have granted review if there was any material on which it could be granted.  They, however, observed :               "...... It is however axiomatic that no  Court               or Tribunal can rewrite or alter its  Judgment               once a Judgment has been signed and delivered.               We could entertain the review petition only on               some  ground similar or analogous to those  as               mentioned  in Section 114 and Order 47 Rule  I               of the Code of Civil Procedure.  But in  this’               case there is no such ground available to  the               petitioner." They  held that as the order of the  disciplinary  committee had  merged in the decision of the Supreme Court,  a  review granted by them would be incompetent.  Having held this  two members  went  on to consider the merits, a  procedure  with which  the third member dissented.  His observations in  the circumstances were quite correct.  This is what he said :               "If   what  the  petitioner  says  about   the               observations  of  the Supreme Court  that  his               remedy should be by a Petition for review,  is               correct,  the  forum  lies  elsewhere  and  we               cannot just entertain it.  In this view of the               matter  the  observations  made  by  the   Bar               Council  of  India in their  resolution  dated               12th  July,  1969, which are entitled  to  our               respect, may well be left alone mad (sic) need               be commented upon." The  majority of the disciplinary committee however  refused to  be  guided  by the observations of the  Bar  Council  of India.  They observed that looking at the photostat copy did not  advance the matter any further and they had  previously seen  the  original  itself and on the  evidence  they  were satisfied that there was some writing on the pieces to  show that  it was a true copy signed by the attestor.   This  was proved  by  the  evidence of Mr. Vir Bhan  accepted  by  the disciplinary  committees  of  the two  Bar  Councils.   They discarded  the fresh evidence’ of the two clerks as  not  of any use to the appellant.  They went to the length of saying               "Even   if   these  witnesses   had   entirely               contradicted  their  earlier  statements  that               would    not   have   been   a   ground    for               review. . . .".               Having said this they went on to say:               "........ However in the present case we  have               also examined the depositions recorded by Shri               Jagjit   Singh   and  we  do  not   find   any               substantial difference between               20

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             what  they  had stated earlier and  what  they               stated before him." The  fact  that  writing on the  pieces  was  not  mentioned earlier  by the clerks was not noticed.  The  majority  then severely  commented  upon the conduct of  the  appellant  in charging  the subordinate judiciary with hostility and  held this to be ’frivolous and unworthy of notice.’ They observed as follows               "Even  in our earlier Judgment we pointed  out               that a defence of this nature calculated to de               deter and intimidate reponsible officers  from               discharging  their  public  duty  was   highly               reprehensible." They accordingly dismissed the review application expressing the hope that that would be a close to this chapter.  In two paragraphs  thereafter  the majority commented  strongly  on other conduct of the appellant in court cases and outside it which according to them was deplorable.  It is obvious  that the  disciplinary  committee  was annoyed  at  the  repeated attempts  of the appellant to have his case reconsidered  by the superior authorities and the hearing he had got. From  the respective orders of the Bar Council of India  and the  disciplinary Committee, these two appeals are  brought. We  granted special leave in the matter arising out  of  the Bar Council’s order limited to the following two questions               "(1   )  Whether  the  Bar  Council   has   no               jurisdiction   to  direct   the   Disciplinary               Committee to rehear the matter; and               (2)Whether  the Disciplinary Committee  was               right in not considering the matter afresh." In   the  other  appeal  the  question  is  :  whether   the disciplinary  committee  was right in  refusing  review  and whether we should, therefore, review the matter our  selves, if we are satisfied that the case deserves it. In so far as the jurisdiction of the Bar Council of India is concerned we think the Bar Council acted correctly when they refused  to  review  the matter  themselves.   For  the  Bar Council  to do so would be an exercise of  appellate  power. That  power the Bar Council of India does not possess.   But the  Bar  Council  of India was right  in  saying  that  the question raised before themselves was sufficiently important for reconsideration and recommending it for  reconsideration to their Disciplinary Committee. The provisions of the Advocates Act are no doubt precise  in the  matters of appeals and review.  In all cases  tried  by the 21 Disciplinary Committee of the Bar Council of a State  (which term  includes the Union Territory of Delhi) an appeal  lies to the Bar Council of India.  The appeal is, however,  heard by  the Disciplinary Committee of the Bar Council  of  India and  they dispose of it as they deem fit.  The Act does  not say that the Disciplinary Committee is a reporting body  and the  executable  order must be made by the  Bar  Council  of India.  This is made clear by the section that follows.   It speaks of an appeal-, to this Court against the order of the Disciplinary Committee.  It an order of the Bar Council were intended to be interposed (whether endorsing or refusing  to endorse  the order of the Disciplinary Committee) one  would expect the appeal to this Court to lie against the order  of the  Bar Council.  But in the initiation of the  proceedings and  again  in  the matter of appeal,  the  Bar  Council  is mentioned and not the disciplinary Committee.  Indeed  under ss.  35(1)  and  36(1) the Bar Council of the  State  or  of India,  as the case may be, must be satisfied that  a  prima

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facie case exists before they will refer the matter to their Disciplinary  Committee.   This  is  in  keeping  with   the jurisdiction of the Bar Councils of the States laid down  by s.  6 (1 ) (c) under which Bar Council is to  entertain  and determine cases of misconduct against advocates on its rolls and under cl. (d) with the duty to safeguard the rights  and privileges  and  interests of advocates on  its  rolls.   In regard to the Bar Council of India the same position obtains under  s.  7  (1) (d) (which is  ipsissima  verba  with  the corresponding  provisions of s. 6) read with s.  7(1)  which lays  down the jurisdiction of the Bar Council of  India  to deal  with and dispose of any matter arising under the  Act. Therefore   the  general  superintendence  of   ethics   and etiquette  of the profession and questions of misconduct  of the  members  are  not wholly outside the  ken  of  the  Bar Councils  of  the State or of India and  are  always  within their respective jurisdictions. Next,  the appeal to this Court is not a restricted  appeal. It  is not an appeal on law alone but also on fact.   Indeed s.  38 gives the Supreme Court jurisdiction to pass in  such appeals any orders it deems fit.  Therefore the  appropriate Bar  Council  or  this  Court do not  act  wrongly  if  they entertain subsequent petitions from a person whose case  has been dealt with by a disciplinary committee. The power of review is expressly granted to the Disciplinary Committee of the Bar Council which may on its own motion  or otherwise review any order passed by it.  The word otherwise is  wide enough to cover a case referred by the Bar  Council for review.  There is a proviso which makes the Bar Council. of India the final judge because no order of a  disciplinary committee of a 22 State Bar Council on review has effect unless it is approved by the Bar Council of India. The powers of review are not circumscribed by the Act.   The analogy of the Civil Procedure Code must not be carried  too far.   Such powers may ’be exercised in a suitable case  for or  against  an  advocate even after  the  matter  has  gone through  the  hands of the Disciplinary  Committee  at  some stage  or even through this Court.  These matters  are  also not  governed  by  the  analogy of  autre  fois  convict  or autrefois   acquit  in  the  Code  of  Criminal   Procedure. Disciplinary  proceedings against a lawyer involve not  only the particular lawyer but the entire profession.  The  repu- tation  of  the  legal profession is the sum  total  of  the reputation  of the practitioners.  The honour of the  lawyer and   the   purity  of  the  profession  are   the   primary considerations and they are intermixed. During the hearing we gave an illustration which we may also give  here.  Suppose an advocate is charged with  embezzling the  money of his client.  The advocate pleads that he  paid the money in cash to the client and obtained his receipt but the  receipt  is  misplaced and he cannot find  it.   He  is disbelieved by the Disciplinary Committees and even by  this Court.   Subsequently  he finds the receipt  and  wishes  to clear  his good name.  The matter can be gone into again  on the  fresh material.  It is not only his right but also  the duty  of  the those including this Court to  reconsider  the matter.  The Bar Council in any event can restart the matter to  clear  him whether before any of the  authorities  which dealt with the matter before.’ The facts in the illustration may  be  reversed  to see the  converse  position  where  an advocate gets off on a false plea of not having received the money at all, if he can be successfully confronted with  his own receipt which the client had misplaced and could not lay

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hands upon in the first instance. From this it follows that questions of professional  conduct are  as  open as charges of cowardice  against  Generals  or reconsideration  of  the conviction of person  convicted  of crimes.   Otherwise how could the Hebron brothers get  their conviction  set aside after Charles Peace confessed  to  the crime for which they were charged and held guilty ? The  fact  of  the  matter in this case  is  that  too  much emphasis was laid on the oral evidence of a clerk who  alone Raid that he had seen the appellant tear two pieces from Ex. C.I.  The Advocate’s denial was not accepted although  there was  word  against matched the tear. There was  on  evidence that  the  pieces found on the floor matched the  tear.   No witness  spoke  of  having  taken  the  elementary  care  of matching the pieces with Ex.  C-I.  Indeed the pieces 23 having been lost the only corroboration regarding the pieces has  disappeared.   The only corroboration now is  that  the edges of Ex. C-1 show such a tear. The question is whether this by itself is sufficient.  There is  no evidence against the appellant except that  of  Amrik Sin-h.   It  is true that there is  no  personal  allegation against  him  of harbouring any grudge or  hostility  beyond saying  that  the  staff  of the  Courts  were  against  the appellant.   As against this, one consideration is what  was the  gain to the appellant by tearing the tiny pieces  ?  We shall  presently show how tiny they were.  The charge  is  a serious  one;  and we have to see the matter  in  the  whole setting of the evidence.  The document said to be torn is  a copy  of  a  notice which Sarin’s Counsel had  sent  to  the opposite  side.  The counsel for Sarin said that he had  not proved  the document.  Further the original notice could  be summoned.  Exhibit C-1 was in two sheets 30.5 cm. x 20.5 cm. and 34.6 cm. x 21.5 cm. The second sheet was extraordinarily long  and  its  edges  appear  very  much  frayed.   It  was suggested  at  the hearing it must have protruded  from  the rest of the file and thus got damaged in the handling of the file.  This was not given due weight. We  have  examined the document carefully.  It is  a  carbon copy of a notice.  The document ends thus : Note  :  Copy  of this notice’ is being  sent  under  postal certificate to your wife. Yours faithfully, The  tear  occurs 1.5 cm. to the left of ’ficate’  and  ends below   the  letter  ’A’  in  ’postal’.   The   letters   of ’,faithfully’ are missing except for the head of ’f’ and  so also  letters ’der’ in ’under’ and parts of ’P’ and  ’o’  in ’postal’  are  missing.  The complainant  claimed  that  the document  had  an  attestation ’true  copy’  followed  by  a signature and that it had been torn out.  The two clerks who had  seen the pieces do not definitely say that  the  pieces had any writing and as the pieces have disappeared we cannot get  corroboration.  They had originally not said  this  but now at a later stage they have deposed about the writing  on the  pieces.  We have therefore, done the best  to  discover the truth.  This is the result of our observations : The  document  is a rectangular foolscap sheet,  rather  old paper which is frayed along the edges.  As the fraying edges were  falling  off  we have secured  them  with  transparent scotch  tape.  One piece actually fell off when  the  papers was  being examined by us but the piece has been secured  in situ  with  scotch tape.  Another piece found  in  the  file could not be matched’ 24 and has been secured in the margin with scotch tape so  that

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it may not be lost.  It-belongs to the same paper.  Now  for a description of the paper. Fortunately the machine cut edges are available on all  four sides  enabling us to measure the paper and to find out  the exact  .measurements of missing parts.  This will enable  us to  find  out if an attestation and a signature  could  have been written at all on these papers.  It is obvious that the tearing  if deliberate, as .is suggested, must have been  to tear  out  not the blank space left .on the  bottom  of  the typewritten   portion   but  of  some  writing,   typed   ar manuscript. The  paper is exactly 34.6 cm. x 21.5 cm.  As no portion  is alleged  to be torn from the top or the sides we may  ignore the measurement of the breadth except to compare it with the tear.   The  tear today is found along 17.5 cm. out  of  the total breadth ,of 21.5 cm.  We have already said that except for  1.5  cm. to the left of the letters ’ficate’  the  tear falls directly below the .typed portion and that is 15.5 cm. in length. 7.5 cm. are below the portion where the last line of  typing  ’ficate’  to your wife’  and  the  words  ’yours faithfully’  occur.  The bottom of these typed  letters  are exactly  34.4 cm. from the top leaving a strip  which  would be  .2 cm.  In other words out of a tear of 17.5 cm., 8  cm. allow only a space of .2 cm. for any writing. Now  for  the remaining 8 cm.  This is made up  of  2.5  cm. below  ’tal  certi’ which is almost whole and  there  is  no writing on this portion. That leaves a tear of 5.5  cm. measures lengthwise where thereis no typing on top.  This is made up of 3 traingular portionsjoined  by  the  .2   cm. strips  below  typed portions.  1 st triangle is 2  cm.  iin length  with  1 cm. perpendicular from apex  to  base.   The second  is 3.2 cm. base with a perpendicular of 1  ,cm.  and the third is 2.8 cm. by 1 cm. Therefore out of the total length of 17.5 cm., 7.5 cm. is  a strip uniformly of .2 cm.  There are 3 triangles, in  length respectively  2  cm., 3.2 cm. and 2.8 cm.  with  the  height almost  at the centre in each case I cm.  The  photostat  of the document is an annexe and can be seen also.  We took the measurements from the original.  It is easy to see how small will  be  space for writing.  The three triangles  of  which only  2 could be hold to be torn by the appellant could  not have contained the words of attestation and signatures.  The one  of  the extreme left is so situated that no  one  would write  there  an  attestation.   The  three  triangles   are separated by 4 cm. and 3.5 cm. and it is impossible to think that  the  attestation was written in one triangle  and  the signature in another for there was not enough space to write them 25 one  above  the other even if one could cramp in  one  line. Further  with  the  typing having gone to .2  cm.  from  the bottom   anyone  wishing  to  write  an  attestation   would ordinarily write it in the margin where plenty of space  was available  and that is the usual course lawyers  adopt  when the  writing  goes  right  down  to  the  bottom.   We  are, therefore, satisfied that there was no writing on the pieces and  the halting testimony of the 2 clerks should  not  have been  accepted  without corroboration.   They  said  nothing about it when they were first examined. The  sum total of our observations may now be  stated.   The document  was merely a copy of which the original  could  be summoned.   One  sheet  was unduly long and  was  likely  to protrude  from  the file of papers and thus  liable  to  get frayed.   It is frayed and the paper is showing  more  tears today.  The typing had gone to the very bottom of the  paper

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and  there  was not sufficient space to write in  a  natural hand the attestation and to sign it.  There was blank  paper in  the margin where the attestation could  be  conveniently written and signed.  The document was not necessary for  the decision of the case and Mr. Vir Bhan had not even attempted to  prove  it.   It  was being inspected  to  find  out  the original  case  of the claimant after the case had  gone  to arbitration  and  there  was an award.  Nothing  was  to  be gained by tearing it or even by tearing out the  attestation even if there was. one.  of course it would be improper even to to tear out the blank portion but no one indulges in such a  silly  and  useless act.  There  was  serious  allegation against a judge of the court and there was a possibility  of the appellant being the target of hostility and the evidence against  him was of a single clerk.  There was word  against word. The question that arises is what are we to do.  We have held above  that  the disciplinary committee could  be  asked  to reconsider the matter by the Bar Council.  The order of  the disciplinary  committee  does show that although  they  held that  the Bar Council had acted without  jurisdiction,  they went  on  to express their satisfaction with what  they  had already  done.  The reexamination was not  made  objectively but  with  the intention of reaffirming  their  decision  by every argument for it.  No attempt was made to find  whether the  circumstances  were such that the .appellant  could  be said to have proved satisfactorily the contrary of what  was held  or  had created sufficient doubt in the  matter.   The earlier findings were affirmed when there was no need to  do so as the petition for review was held incompetent. At the hearing before us the Bar Council of India applicared and  supported the case of the advocate.  Mr.  Natesan  said that  in the opinion of the Bar Council, it would be  proper for  this Court to go into the matter.  Previously  the  Bar Council had 26 probably  supported  the case against  the  appellant.   The stand of the Bar Council in the case before us was this               "The   Disciplinary  Committee  of   the   Bar               Council,   while  finding  that  it   has   no               jurisdiction  to review the matter in view  of               the prior appeal to this Court, has gone  also               into the merits of the case, examined it  ela-               borately with reference to the material stated               to  be  new matter and has come  to  the  same               conclusion.   The question that now arises  is               whether  the  Supreme  Court  can  review  the               matter   itself  in  this  appeal   when   the               Disciplinary Committeehad no jurisdiction, and               set  aside the order made by the  Disciplinary               Committee   on  the  merits.   It  may  be   a               different thing if this Court now reviews  the               order  in  the light of the  materials  placed               before  the Court after the production of  the               original  document  stated to have  been  torn               which  ex facie shows that it could  not  have               been deliberate or wanton". Another body of lawyers, namely, the Bar Association of  the Supreme Court sought permission to intervene and were heard. Mr.  A.  S. R. Chari on behalf of the  Association  strongly supported the advocate’s case.  Thus we have the entire  Bar of the country and the entire Bar of this Court  unanimously asking this Court to go into the matter. It  appears to us, therefore, that the Bar Council of  India does  not wish to oppose the review by us of our  order  and

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indeed  they  invite us to grant relief  to  the  appellant. Ordinarily  we would have been unwilling to grant  a  review after  this  Court  had  declined to do  so  on  in  earlier occasion.  But the Circmstances are different.  Our view  of the matter is also that the charge of deliberately and  want only mutilating an important document in a judicial file has not been as clearly made out as one would wish.  This  Court on earlier occasions, taking the fact,,-, from the order  of the  disciplinary  committees, declined to interfere  as  no question  of  law  was involved.   It  decided  the,  appeal summarily  without issuing notice or sending for the  record There  is  force  in the contention  that  aTi  advocate  is entitled  to a full appeal on facts and law under s.  38  of the  Advocates Act.  Since the disciplinary jurisdiction  of the High Court has been taken away a right of appeal to this Court has been substituted.  This Court must in all cases go into  the matter to satisfy itself that justice has been  by the disciplinary committee or committees. tees. We  find some unusual circumstances facing us.   The  entire Bar  of  India are of the opinion that the case was  not  as satisfactorily  proved as one should be and we are ’also  of the same 27 opinion.  All processes of the court are intended to  secure justice  and  one such process is the power of  review.   No doubt frivolous reviews are to be discouraged and  technical rules  have been devised to prevent persons  from  reopening decided cases.  But as the disciplinary committee themselves observed  there  should not be too much  technicality  where professional honour is involved and if thereis  a  manifest wrong  done  it is never too late to undo  the  wrong.  This Court  possesses under the Constitution a special  power  of review  and  further  may  pass any order  to  do  full  and effective  justice.  This Court is moved to take action  and the  Bar Council of India and the Bar Association  of  India are unanimous that the appellant deserves to have the  order against him disbarring him from practice set aside. Looking  at  the  matter  for ourselves  we  find  that  the document  said to be mutilated was not needed for the  case. In any event it was only a carbon copy and not an  original. No  part  of  the  typed portion  was  damaged  except  very slightly.   The  tear in two places equal to a  third  of  a small  postage stamp are the subject of the charge.  In  our opinion  there was most probably no writing there  as  there was  hardly any space available and the whole of the  margin was available to write the attestation of ’true copy’.   The clerks did not speak of any writing at first and now too  in a  very halting, manner.  No steps were taken to  match  the alleged  pieces with the tears and the pieces have not  been preserved.   Thus there is the word of Amrik  Singh  against that of the appellant.  There was a background of  hostility which the appellant had created by his aggressive action  in other  cases.   Whether he handed the paper  roughly  and  a piece  came off which lie threw down without noticing it  or the  paper  gave  way and a piece fell (as it  did  when  we handled it) it is not possible to say with definiteness.  We find it difficult to believe that this multilation,  without any rhyme or reason, was done with a sinister motive.   This is  the unanimous view of the entire Bar of  India  speaking through Counsel. Our duty is clear.  We would have paused to consider the law applicable  to reviews in such matters but we do  not  think should ascertain it in this case.  This matter is one of the ethics of the profession which the law has entrusted to  the Bar  Council of India.  It is their opinion of a case  which

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must  receive due weight.  The Bar Council thinks  that  the decision against the appellant is unsustainable.  We see  no reason to differ from them.  We accordingly grant review  in this  case and set aside the order disbarring the  appellant from  practice  which had been passed. against  him.   There shall be no order about costs. G.C. 28