S.C.R.

SUPREME COURT REPORTS. 1081

NARAYAN BHASKAR KHARE

THE ELECTION COMMISSION OF INDIA

(and connected petition)

(S. R.

DAS c. J.,

BHAGWATI, JAFER IMAM, s. K. DAS, J. L. KAPUR, GAJENDRAGADKAR and

A. K. SARKAR JJ.)

President, Election of-Doubts and Disputes relating to such election-Jurisdiction and Power of Supreme Court, when can be exercised-'Election', Meaning of-Constitution of India, Arts. 71, 62--The Presidential and Vice-Presidential Election Act, 1952 (XXXI of 1952), s. 14.

The petitioners entertained grave doubts as to the 'propriety of holding the Presidential election before the general elections had been completed throughout the entire territory of India and, by applications filed under Aft. 71 (I ) of the Constitution as citizens. of India, invoked the jurisdiction and power of the Supreme Court thereunder to inquire into such doubts and sought for an order restraining the .Election Commission from taking the poll in connection with the election of the President, fixed for May 6, 1957, till the general elections in the Union territory of Himachal Pradesh and in two Lok Sabha Constituencies of the State of Punjab, which were still to be held, had been completed. The expiry of the term of office of the then President which caused the Presidential election was to come . about on the mid-night of May 12, 1957. One of the petitioners alleged that he was a candidate for the Presidential election and the time intervening between the date when he received his nomination paper and the date fixed for the filing of it was too short to enable him to file it within time and the case of the other was that he was a prospective candidate for election to . the Lok Sabha from one of the Punjab Constituencic>, where election was yet to be held, and would be prevented from exercising his right to vote for the election of the President.

Held, that the present petitions were premature and mmt be dismissed.

The jurisdiction and power conferred o; i the Supreme Court by Art. 71(1) of the Constitution to inquire into and decide doubts and disputes arising out of and in connection with the elccti::>n of the President can be exrdsed only after a particular

candidat~ has been declared elected and on an election petition filed under s. 14 of the Presidential and Vice-Presidential Ekction Act of 1952.

The word 'election' in Art. 71 of the Constitution is used in the wider sense to denote the entire process of election culminating 3-81 S. C. India/59

Mays.

Narayan Bhaskar

Jr hare

The Election Commission of

India

Dase. 7,

in a candidate being declared elected and doubts and disputes arising out of and in connection with such election must include all doubts and disputes relating to any particular stage of it.

N. P. Ponnuswamy v. Returning Officer, Namakkal Constituency, (1952) S.C.R. 218, referred to.

It is a well recognised principle of the law of election that an election cannot be held up to facilitate the ventilation of individual grievances in derogation of the interest of the people in general and Art. 62 of the Constitution, which requires that the election of President must be completed within the time fixed by it and has been conceived in such interest, is mandatory in character.

ORIGINAL JuR1smcnoN : Petitions No. 63 and 64 of 1957.

Petitions under Article 71 ( l) of the Constitution of India for clarification of doubts in connection with the election of the President.

R. V. S. Mani and /. R. V. Sastri, for the petitioner in Petition No. 63 of 1957.

R. Patnaik, for the petitioner m Petition No. 64 of 1957.

M. C. Setalvad, Attorney-General for India, G. N.

Joshi, Porus A. Mehta and R. H. Dhebar, for the respondents ( Caveators) in both the petitions.

1957. May 3: The Judgment of the Court was delivered by DAs C. J.-The petitioners in the above petitions have moved this Court to exercise the jurisdiction and power vested in it by and under Art. 71 ( l) of the Constitution of India and to inquire into and decide what has been described as a "grave doubt" in connection with the 'election of the President of India and to direct the Election Commission not to proceed with the polling in connection with the said election which has been fixed for May 6, 1957, but to hold the same after duly completing all the elections to the Lok Sabha and the Legislatures in all the States of the Indian Union including the Union territory. The first main petition was presented on April 26. 1957, and the second on April 29, 1957. Alo:-ig with each of the said petitions has been filed a Civil Miscellaneous Petition asking for a stay of the polling for the Presidential election fixed

for May 6, 1957. In the first main petition the Returning Officer has not been made a party, but in the second petition he has been impleaded as a respondent.

The. learned Attorney-General has appeared on behalf of the Election Commission and has waived the service of notice. We can, therefore, dispose of all the petitions before us.

There is no dispute as to the material facts which may shortly be stated as follows :

After the general elections in all the States and Union territories of India, except in the Union territory of Himachal Pradesh, which is to return four members to the Lok Sabha and in two constituencies in the State of Punjab, the old Lok Sabha was dissolved on April 4, 1957 and the New Lok Sabha was constituted on April 5, 1957, under s. 73 of the Representation of the People Act (XLIII of 1951). As required by s. 4 of the Presidential and Vice-Presidential Election Act, 1952 (XXXI of 1952), the Election Commission issued a notification in the official Gazette appointing April 16, 1957, as the last date for making nominations, April 17, 1957, as the date for the scrutiny of the nominations, April 20, 1957, as the last date for the withdrawal of candidatures, May 6, 1957, as the polling date and May 10, 1957, as the date for the counting of the 'votes and the declaration of the result. The terin of office of the present President is due to expire on the mid-night of May 12, 1957. The reason for fixing the abn\'e time schedule obviously was that the Presidential election should he completed before the term of office of the present President expired.

After the notification constituting the new Lok Sabha was published in the Press on April 7, 1957, the petitioner in the first petition applied to the Election Commission for the supply of the nomination papers, which he eventually received at Nagpur in the afternoon of April 10, 1957. This left a period of five days for the filing of the nomination paper before the Returning Officer at New Delhi. The petitioner submits that the time was too short and he was prevented from filing his nomination paper due to want of time. He

Narayan Bhaskar

Khare y.

The Election Commission of

Indio

Das C.J.

Narayan Bhaskar n- ...

T.t Ekcti<nl Commission of

lrulia

Das G. :J.

has filed the petition as a citizen of India and as an "intending candidate" for the Presidential election.

The petitioner in the second petition is a member of the Hindu Mahasabha and is contesting the election to the Lok Sabha as an independent candidate from Kangra Parliamentary constituency in the State of Punjab. He filed his nomination paper on January 28, 1957, as originally the polling was scheduled to commence in that constituency on February 24,

1957. The polling, however, has since been postponed and fixed for June 2, 1957. l-Ie has filed the petition as a citizen of India and as a prospective member of Lok Sabha and contends that if the Presidential election is held on May 6, 1957, he will be deprived of his right to vote for the election of the President of the Union.

He has also complained of discrimination offending against Art. 14 of the Constitution.

Under Art. 56 of the Constitution the President holds office for a term of five years from the date on which he enters upon his office.

The present incumbent of the high office entered upon his office on May 12, 1952, and, as already stated, his term is due to expire on the mid-night of May 12, 1957. Article 62( I) peremptorily requires that the election to fill the vacancy caused by the expiration of the term of office of the Preoident shall be completed before the epira tion of the term. It is necessarv to bear in mind this clear mandatory provision of , the Constitution.

For ascertaining how such election of President is to be held. we have to go back to Art. 54, which runs thus :

"S 1. The President shall be elected by the members of an electoral college consioting of- ( a) the elected members of both Houses of Parliament: and

.(b) the elected members of the Legi>lative Assemblies of the States."

On 0'1e side it is said that the electoral college is to consist of those members falling under clauses (a) and (b), who are elected at the crucial date. that !s to sa':, the date when the election is to take place. Suppose, it is said, that the term of the President's office expires during the currency of the life of Parliament. as it

may well do in cases contemplated by Art. 62(2) and suppose there are vacancies in Parliament or in the Legislature of one or more States, surely the election of the President required by Art. 62(1) to be held before the expiry of the term of the outgoing President cannot be held up until the vacancies are filled up. On the other hand it is contended that the electoral college must be constituted after the elections in all States and Union territories are completed and should consist of all the elected members falling within both the categories.

Inasmuch as elections have not taken place at all in Himachal Pradesh and in two constituencies of the State of Punjab, the electoral college cannot be constituted until after those members are also elected, It is pointed out that though on the present occasiolil only four members of Himachal Pradesh and only two members in the State of Punjab have not been elected, nevertheless, if the objection of the petitioners is not now heeded any party in power may in future arrange for the election of its own nominee as President by postponing the elections in several States, where. it may not expect to get a majority of seats. It is said that on March 28, 1957 some members of the then Lok Sabha had raised a question as to the danger and impropriety of holding the election of the President before the completion of the elections throughout the territory of India.

Both the petitioners share the same view and contend that a. "grave doubt" has arisen in connection with the dection of the President and that such a doubt must, under Art. 71, be inquired into and decided by this Court. The extreme contention put forward on behalf of the petitioners is that it does not matter whether the doubt is well founded or not or whether it is good, had or indifferent; this Court is bound to inquire into :11HI decide the same as soon as a doubt arises and a citizen brings it before this Court for resolution thereof. For the purpose of this case it is not necessary for m to express any opinion on the merits of the respective contentions for these petitions may well be disposed of on a narrower preliminary ground.

JtfOTqan Bha.rkOT

Klun

T Ju Eltailln Commission of India

Das C.].

N ar<rvan Bhaskar

Kha"re

The Election Commission of

India

DasC.].

Article 71 (1) undoubtedly confers jurisdiction and power on this Court to inquire into and decide "all

doubts and disputes arising out of or in connection with the election of President or Vice-President" and this Court will have to inquire into and decide the same.

But the question is whether there is anything in the Constitution indicating the time at which and the manner in which 5Uch doubts and disputes have to be inquired into and decided. Under Art. 324 the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the office of President and Vice-President held under this Constitution, including the appointment of election tribunals for the decision of doubts and disputes arising out of or in connection with elections to Parliament and the Legislatures of States shall be vested in the Election Commission. lt will be noticed that identical words are used, namely, "doubts and disputes am111g out of or in connection with elections" which are also to be found in Art. 71 (!). By Art. 327, Parliament was authorised to make provision with respect to all matters "relating to or in connection with elections" to Parliament or to the Legislat.ures of the States.

Art. 329 provides, amongst other things, that notwithstanding anything in this Constitution no election to either House of Parliament or either House of Legislature of a State shall be called in question except by an election Petition presented to such authority and in such manner as may be provided for by or under any law made by the proper legislature. In exercise of powers thus conferred on it, Parliament enacted the Representation of the People Act, 1951, providing how elections arc to be held and how and on what grounds such elections may be called in question. It also set up a special forum called Election Tribunal for the decision of "doubts and disputes arising out of or in connection with such elections." In N. P. Ponnuswami v.

Returninz Officer, Namakkal Constituency( 1 ) the 'Returning Officer for that constituency had rejected the

(1j (1902) S. C.R. 218.

nomination paper of the appellant. Thereupon the appellant applied to the High Court of Madras under Art. 226 of the Constitution for a writ of certiorari to quash the order of the Returning Officer rejecting his nomination paper and to direct the Returning Officer to · include his name in the list of valid nominations to be published. The High Court of Madras dismissed the petition and the appellant brought an appeal to this Court. The Full Court held that in view of the provisions of Art. 329 (b) of the Constitution and s. 80 of the Representation of the People Act, 1951, the High Court had no jurisdiction to interfere with the order of the Returning Officer. The main controversy in the appeal centred round the words "no election shall be called in question except by an election petition" occurring in Art. 329 (b ).

The most important question for determination by this Court was the meaning to be given to the word "election'' in Art. 329 (b). This Court said at page 226 : ·

"That word has by long usage in connection with the process of selection of proper representatives in democratic institutions, acquired both a wide and a narrow meaning. In the narrow sense, it is used to mean the final selection of a candidate which may embrace the result of the poll when there is polling or a particular candidate being returned unopposed when there is no poll. In the wide sense, the word is used to connote the entire process culminating in a candidate being declared elected."

After referring to the cases of Srinivasalu .v. K"ppu- . swamiL') and Sat Narain v. Hanuman Prasad(') and a passage in Halsbury's Laws of England, 2nd edition, Volume 12, page 237, this Court took the view that.· the word "election" could be and had been properly used with respect to the entire process which consisted . of several stages and embraced many steps some of which might have an important bearing on the remit of the process and, therefore, held that in view of the

provisions of Art. 329 (b) of the Constitution and s. 80 of the Representation of the People Act, 1951, the High Court had no jurisdiction to interfere with . the

(t) A. I. R. (1928) Ma~. 253, 255.

(2) A. T. R. (1~5) Tah.85.

Narayan. BhaJkar

i.hare

The Election Commission of India

DasC.].

Narayan Bhaskar

Khare

The Ekction Commission of India

n., c. J.

order of the Re; urning Officer under Art. 226.

The only way such an order could be called in question was as laid down in Art. 329(b) of the Constitution and s. 80 of the Representation of the People Act, 1951, and this could be done only by an election petition presented before the Election Tribunal after the entire process of election culminating in a candidate being declared elected had been gone through. On such election petition being filed the Election Tribunal would be properly bound to inquire into and decide "all do,, bts and disputes arising out of or in connection with the election" irrespective of the stage in the entire election process to which the "doubts and disputes relate". We now approach the construction of Art. 71 in the light of decision of this Court.

As already indicated Art. 71 ( 1) confers jurisdiction and power on this Court to inquire into and decide "all doubts and disputes arising out of or in connection with the election of a President or Vice-President".

The question is : Is there in this Article or in any other part of the Constitution or anywhere else any indication as to the time when such inquiry is to be held? In the first place, Art. 71 postulates an "ek.:tion of tht Preside1n or Vice-President" and provides for inquiry into doubts and disputes arising out of or in connection with such an election.

What is the meaning to be given to the word "election" as used in tlus Article? If we give to the word "election" occurring in Art. 71 (I) the same wide meaning as comprising the entire election process culminating in a candidate being declared elected, then clearly the inquiry is to be made after such completed election, i.e., after a candidate is declarecl to be elected :u President or Vice-President as the case may be. We see ho reason why this accepted meaning should not be given _ to the critical word. In the second place, under cl.' 3 of Art. 71, subject to the provisions of this Constitution, Parliament may by law regulate any matter "relating to or connected with the election" of a President or Vice-President. The words here also are similar to those used in Art. 327 and are equally wid.: enough to cover matters relating to or

' -

•tconnected with any stage of the entire election process.

In exercise of powers conferred on it by Art. 71(3), Parliament has enacted the Presidential and Vice-Presidential Election Act, 1952 (XXXI of 1952) to regulate certain matters relating to or connected with elections to the office of President and Vice-President of India.

A glance through the provisions of this Act will indicate that in the view of Parliament the time for the exercise of jurisdiction by this Court to inquire into and decide doubts and disputes arising out of or in . connection with the Presidential election is after the entire election process is completed. Under s. 14 of this Act, which corresponds to s. 80 of the Representation of the People Act, 1951, no election, meaning the election of the President or Vice-President, shall be called in question except by an dection petition presented to this Court in accordance 'with the provisions of Part III of that Act and of the rules made by this Court under Art. 145.

Section 18, which bys down the grounds for declaring the election of a returned candidate to be void, runs as follows :

18. Grounds for declaring the election of a returned candidate to be void :-If the Supreme Court 1s of opinion- ( a) t11at the offence of bribery or undue influence at the election has been committed by the returned candidate or by any person with the connivance of the

returned candidate; or '

(b) that the result of the election has been materiallv affected- .(i) bv reason that the offence of briberv or undue influence at the election has been committed by any person who is neither the returned candidate nor a person acting with his connivance; or

(ii) by the improper reception or refusal of a vote, or

(iii) by the non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act; or ( c) that the nomination of any candidate has been wronglv rejected or the nomination of the successful candidate or of any other candidate who has

Narayan Bhaskar

Khare

v The Election Commission of India

DasC.J.

Narayan Bhaskar

Khare

•• The EltcJion Commission of

India

DasC.J.

not withdrawn his cndidature has been wrongly accepted; the Supreme Court shall declare the election of the returned candidate to be void .

(2) For the purposes of this section, the offences of bribery and undue influence at an election have the same meaning as in Chapter IX-A of the Indian Penal Code (Act XLV of 1860).

It is quite clear from the language of the section that any improper reception or refusal of a vote, or any non-compliance with the provisions of the Constitution or of the Act or of any rules or orders made under the Act or the improper acceptance or rejection of a nomination paper may be made a ground for challenging the election.

This means that all doubts and disputes relating to any stage of the entire election process is to be canvassed by an election petition presented to this Court after the election in its wide sense is _concluded.

The above stated interpretation appeas. to us to be in consonance with the other prov1s1ons of the Constitution and with good sense. If doubt or rlispute arising out of or in connection with the election of a

President or Vice-President can be brought before this Court before the whole election process is concluded then conceivably the entire election may be held up till after the expiry of the five years' term which will involve a non-compliance with the mandatory provisions of Art. 62. The well recognised principle of election law, Indian and English, is that elections should not be held up and that the person aggrieved should not be permitted to ventilate his individual interest in derogation of the general interest of the people, which requires that elections should be gone through according to the time schedule. lt is, therefore, in consonance both with the provisions of Art. 62 and with good sense to hold that the word "election" used in Art. 71 means the entire process of election.

That is what Parliament understood to be the meaning of Art. 71 as is apparent from the Presidential and Vice-Presidential Election Act, 1952. Again this Court has framed rules under Art. 145 to regulate the

procedure and a perusal of those rules will also indicate . , that "all doubts and disputes arising out of or in f connection with the election of a President or Vice-

President" should be brought before the court after the result of the entire election is declared, that is to say, after a candidate is declared to be elected to the office of President or Vice-President.

It is pointed out that if the petitioners are compelled to wait until after the entire election process is concluded and then to file election petitions, they will have to show that the result of the election has been materially affected as required by s. 18 of the Presi- ' dential and Vice-Presidential Election Act, 1952.

~ is contended that there is no reason why this extra burden or hardship, which is not in terms imposed by Art. 71, should be placed upon the petitioners. It is not necessary for the purposes of disposing of these petitions to express any opinion as to the validity or otherwise of this requirement of s. 18 and we do not do so. But the plea of alleged hardship brought about by s. 18 cannot alter the true meaning and import of Art. 71. In our judgment Art. 71 postulates an election and the word "election" occurring in Art. 71 means the entire election process culminating in a candidate being declared elected and doubts and .,..- disputes arising out of or in connection with any of the stages of such completed election have to be inquired into and decided by this Court which, in point of time, must necessarily be after the completion of the entire process compendiously called the election.

Learned counsel appearing for the petitioner in the second petition raised an additional point that the Election Commission by fixing the election on May 6, 1957, has arbitrarily deprived the members representing territorial constituencies like Kangra and Himachal Pradesh of their right to exercise and enjoy other _, privileges of membership of Parliament. This argument was raised half heartedly at the fag end of his argument in reply and was not seriously pressed. In any event he did not advance any cogent argument showing how the petitioner h:i.d been deprived of the eqml protection of the law. Elections have to be held in numerous

N arU:Jan Bhaskar-

Khar~

The Election Commission of India

Dase.].

Narayan Bhaskar

Khare

Tk Election Commission oj'

India

DasC.J.

May6

constituencies and different dates have to be fixed for holding the actual elections in different constituencies according to the various exigencies relating to the particular lccalities in which the constituencies are situate. No good ground has been established for holding that there has been anv discrimination such as is prohibited by Art. 14 of the Constitution. In so far as the alleged discrimination, if any, in breach of the equal protection clause of the Constitution may be said to be calculated to raise anv doubt in connection with the election of the President it will, at best, be a noncompliance with the prov1s10ns of the Constitution which may or may not, after the conclusion of the entire election, be made a ground, under s. 18 of the Presidential and Vice-Presidential Election Act, 1952, for calling the election in question as to which we need formulate no final opinion at this stage.

We express no opinion on the merits of any of the controversies between the parties, but, for the foregoing reasons, we hold that the present petitions are premature and cannot be entertained at this stage. We, therefore, dismiss the petitions Nos. 63 and 64 of 1957.

Civil Miscellaneous Petitions Nos. 563 and 564 of 1957 will also stand dismissed.

Petitions dismissed.

MR. 'C' v.

THE ADVOCATE-GENERAL OF MADRAS

(JAGANNADHADAS, B.

SINHA and

GA JENDRA-

GADKAR JJ.)

Professional misconduct-Advoratc borne on the rolls of a l--!igh Court and Supre1ne Court-Debarred by l-!igh Court on Bar Cott:1cil's ref; ort-Sumnions by Supreme Cottrt-Procedure-Supremc Court R; des, 0. IV, r. 30.

The appellant, an Advocate , vhose nan1e was borne on the rolls of the Madras I-Iigh Court and of the Supren1e Co11rt, \vas

found guilty of gross profes.sional misconduct by the 1vfadr:Js High Court on the report of the Bar Council Tribunal and debarred from

NARAYAN BHASKAR KHARE

THE ELECTION COMMISSION OF INDIA

DAS

BHAGWATI

JAFER IMAM

L. KAPUR

GAJENDRAGADKAR

A. K. SARKAR JJ.

Constitution of India

Arts. 71, 62

s. 14

India

Supreme Court

May 6, 1957

Himachal Pradesh

State of Punjab

May 12, 1957

Punjab

Art. 71(1)

s. 14

Art. 71

Narayan Bhaskar

Election Commission of

India

Art. 62

Article 71

Constitution of India

R. V. S. Mani

R. V. Sastri

R. Patnaik

M. C. Setalvad

G. N.

Joshi

Porus A. Mehta

R. H. Dhebar

Art. 71

Constitution of India

April 26. 1957

April 29, 1957

April 4, 1957

April 5, 1957

s. 73

Representation of the People Act

s. 4

Election Commission

May 10, 1957

April 7, 1957

Election Commission

Nagpur

April 10, 1957

New Delhi

Narayan Bhaskar

Election Commission of

Indio

Das C.J.

Narayan Bhaskar

Das G.

February 24,

1957

June 2, 1957

Art. 14

Art. 56

May 12, 1952

Article 62( I)

Art. 54

S 1

Parliament

Art. 62(2)

Art. 62(1)

March 28, 1957

Art. 71

JtfOTqan Bha.rkOT

Article 71

Art. 324

Art. 71

Art. 327

Art. 329

High Court of Madras

Art. 226

Art. 329

s. 80

Representation of the People Act, 1951

Art. 329

Art. 329

Art. 329

s. 80

Representation of the People Act, 1951

Narayan. BhaJkar

Election Commission of India

Ekction Commission of India

Art. 226

Art. 329(b)

s. 80

Representation of the People Act, 1951

Art. 71

Art. 71

Art. 71

Art. 71

Art. 71

Art. 327

Art. 71(3)

s. 14

s. 80

Representation of the People Act, 1951

Part III of that Act

Art. 145

Section 18

EltcJion Commission of

India

Chapter IX-A of the Indian Penal Code

Art. 62

Art. 62

Art. 71

Art. 71

Art. 145

s. 18

Vice-Presidential Election Act, 1952

Art. 71

s. 18

s. 18

Art. 71

Art. 71

Art. 71

Kangra

Election Commission of India

Narayan Bhaskar

Art. 14

s. 18

ADVOCATE-GENERAL OF MADRAS

JAGANNADHADAS

B.

SINHA

GA JENDRA-

GADKAR

Madras I-Iigh Court

Bar Council Tribunal


Narayan Bhaskar

Khare

Tk Election Commission oj'

India

DasC.J.

May6

SUPREME COURT REPORTS [1957]

constituencies and different dates have to be fixed for holding the actual elections in different constituencies according to the various exigencies relating to the particular lccalities in which the constituencies are situate. No good ground has been established for holding that there has been anv discrimination such as is prohibited by Art. 14 of the Constitution. In so far as the alleged discrimination, if any, in breach of the equal protection clause of the Constitution may be said to be calculated to raise anv doubt in connection with the election of the President it will, at best, be a noncompliance with the prov1s10ns of the Constitution which may or may not, after the conclusion of the entire election, be made a ground, under s. 18 of the Presidential and Vice-Presidential Election Act, 1952, for calling the election in question as to which we need formulate no final opinion at this stage.

We express no opinion on the merits of any of the controversies between the parties, but, for the foregoing reasons, we hold that the present petitions are premature and cannot be entertained at this stage. We, therefore, dismiss the petitions Nos. 63 and 64 of 1957.

Civil Miscellaneous Petitions Nos. 563 and 564 of 1957 will also stand dismissed.

Petitions dismissed.

MR. 'C' v.

THE ADVOCATE-GENERAL OF MADRAS

(JAGANNADHADAS, B.

SINHA and

GA JENDRA-

GADKAR JJ.)

Professional misconduct-Advoratc borne on the rolls of a l--!igh Court and Supre1ne Court-Debarred by l-!igh Court on Bar Cott:1cil's ref; ort-Sumnions by Supreme Cottrt-Procedure-Supremc Court R; des, 0. IV, r. 30.

The appellant, an Advocate , vhose nan1e was borne on the rolls of the Madras I-Iigh Court and of the Supren1e Co11rt, \vas

found guilty of gross profes.sional misconduct by the 1vfadr:Js High Court on the report of the Bar Council Tribunal and debarred from

practmng in that Court. The charge against him was that he did not utilise a particular sum of money entrusted to him by his client to clear a mortgage in order to secure a clear title for him in completion of a transaction of sale, for that purpose. nor account for it.

The appellant preferred an appeal by special leave and this Court, being apprised of the order passed by the Madras High Court, issued a Rule under r. 30, 0. IV of. the Supreme Court Rules. It was found by this Court that the charge against the appellant was fully supported by a large volume of: evidence on record, both oral and documentary.

Held, that the appeal must be dismissed and the Rule made absolute and the appellant's name removed from the roll of Advocates of this Court.

I It is a great privilege to be an Advocate of this Court and only such persons as can satisfy a very high standard of integrity of character can be enrolled as such. An Advoi:ate who is found . to have fallen from that standard and is debarred by the High Court cannot be considered fit to practise in this Court.

Proceedings under r. 30, 0. IV of the Supreme Court Rules should be treated as a natural sequel to proceedings in the High Court under the Bar Councils Act and although an order made by the High Court under that Act is not to be automatically followed by this Court, it is not necessary that this Court should start a fresh inquiry on evidence.

It would be enough for it to generally examine the record prepared by the Bar Council Tribunal and take into account the findings nf the High Court based on such report.

Reasonable opportunity must, however, be afforded to the Advocate of being heard against the action proposed to be taken against him and adducing such additional evidence as this Court may think proper.

The Attorney General or any other Advocate representing the Legal Profession generally or the complainant or the aggrieved party may also be heard before the final decision is arrived at;

In the matter of an Advocate, Case No. XVI of 1942, decided on March 23, 1943, In re: D. A. Slianmugasundaraswami, an Advocate, Misc. Case No. X of 1948, decided on January 24, 1949, In the matter of Mr. 'G', a Senior Advocate of the Supreme Court, (1955) 1 S.C.R. 490 and In the matter of 'D', an Advocate of the Supreme Court, (1955) 2 S.C.R. 1006, referred to.

CIVIL APPELLATE JuRrsmcTmN: Civil Appeal No. 146 of 1956.

Appeal by special leave from the judgment and order dated December 3, 1954, of the Madras High

Court in Referred Case No. 69 of 1954.

M. S. K. Aiyanger, for the appellant .

Mr.'C' v.

TJ.e Advocate- General of Madrar

Mr.•C•

The Advocale- Cemral of MadraJ

Sinha:J.

R. Ganapathy Iyer and T. M. Sen, for respondents Nos. 1 and 2.

1957. May 6.

The Judgment of the Court was delivered by

SINHA J.-This appeal by special leave and the summons under rule 30 of Order IV of the Supreme Court Rules, 1950, have been heard together and will be disposed of by this Judgment.

The appellant was an advocate of the Madras High Court of more than 25 years' standing, and was enrolled as an advocate of the then Fderal Court in the year

1939. As will presently appear, he has had a chequered career at the Bar. A Full Bench of the Madras High Court, presided over by the Chief Justice of that Court, by its judgment and order, dated December 3, 1954, has directed that the appellant's name be removed from the roll of advocates of the Madras High Court, for "grave professional misconduct".

This Court, having been apprised of the result of the proceedings against the appellant in the High Court, issued notice to him to show cause why he should not be suspended from practice in view of the findings recorded by the High Court.

It appears that the appellant was engaged by one K. T. Appannah, ordinarily residing in Bangalore city, who will hereinafter be referred to as the complainant, to complete a transaction of sale between the complainant and the owner of a house property in the city of Madras, whom we shall call, in the course of this judgment, as the vendor, after scrutinizing the title deeds in respect of the property which was the subiectmatter of the transaction of sale. Before the appellant was engaged by the complainant, the bargain had been srruck and the sale price of the property had been fixed at Rs. 15,000 out of which Rs. 1,300 had been paid to the vendor by way of earnest money. A retired Government servant named Sundararajayya who was a relation of the complainant, and used to live near about the appellant's residence, had also helped the complainant in acquiring the property, and in that connection, used to give instructions to the appellant

on behalf of the complainant. On May 11, 1951, the complainant sent, by way of a demand draft, the' sum of Rs. 1,400, to the appellant, to meet the costs of stamp for the sale deed, and registration, and a fee of Rs. 150 to the appellant for his work in connection with the transaction. In the course of the enquiry into the title to the property, it was discovered that there was a mortgage on the property, of Rs. 5,500, on the basis of a registered mortgage-deed which had been filed in Court in connection with a litigation in respect of that very property, pending on the original side of the Madras High Court. By negotiation, it was settled that Rs. 5,500, out of the sale price, shall be reserved for the .discharge of the mortgage debt, and that the remaining amount of the consideration, will be paid to the vendor on completion of the sale -transaction and delivery of vacant possession of the property. The appellant wrote to the complainant that the latter should send him a demand draft for Rs. 5,600, in his name, for payment to the mortgagee, aforesaid, when the mortgage bond, properly discharged, would be handed over to the appellant, acting for the complainant. In due course, on or about June 26, 1951, a demand draft in the name of the appellant, for Rs. 5,600, was sent by the complainant for the express purpose of discharging the mortgage debt, aforesaid.

On August 21, 1951, a cheque for Rs. 1,200, on September 26, 1951, a cheque for Rs. 500, and on October 19, 1951, a demand draft for Rs. 5,500, all in the narri.e of the appellant, were sent by the complainant, in order to put him in funds for completing the. transaction of sale and for payment of the consideration money to the vendor. On July 9, 1951, the saledeed was executed by some of the executants, and on September 6, 1951, it was executed by the remaining executant, and registered.

Hence, it would appear that between May 11, 1951, and Octoher 24, 1951, the complainant had paid to the appellant, the sum of Rs. 15,200, which was sufficient to pay the outstanding amount of the consideration for sale . ' namely, Rs. 13,700, including the mortgage amount, afnresaid, of R.s. 5,500, besides the costs of stamp and registration and the appellant's fees.

But it appears

Mr.'C'

The Advocate- General of Madras

Sinha].

Mr.•C'

The Advocate- Gencral of Madras

Sinha].

that the vendor's portion of the consideration money, was paid by the appellant on November 23, 1951, after some avoidable delay due to him, and vacant delivery of possession given to the appellant as stipulated between the parties. It appears further that the complainant was in need of raising money on the security of the newly-acquired property, and, therefore, was anxious t'> receive all the documents of title including the mortgage bond duly discharged. But the appellant, for reasons of his own, went on postponing the payment of the mortgage money on some pretext or the other. On being pressed for the mortgage-deed, duly discharged, being handed over to the complainant, and as a result of a protracted correspondence, the appellant sent, to the complainant, on June 26, 1952, a number of documents including "cancelled mortgage documents." It should be added here that the mortgage transaction of Rs. 5,500, ha• l been entered into by the owner of the property in order to discharge previous mortgages on the same property.

All these documents had to be withdrawn from the High Court where they had been in the custody of the Court as already indicated.

Unfortunately, Sundararajayya died on June 28, 1952. As a result of further correspondence, the complainant came to realise, to his cost, that the mortgage debt of Rs. 5,500 had not been paid to the mortgagee, as arranged between the appellant and the complainant who had put him in funds with the express purpose of obtaining a clear title to the property which he had agreed to purchase. Thus, the complainant was reduced to the necessity of filing a regular petition of complaint in the High Court on November 14, 1952. In that petition of complaint, the complainant made copious quotations from the letters addressed by the appellant to him and made reference to the fact that the mortgagee had already instituted a suit in court for recoverv of the mortgage mane.,', and had impleaded the compbinant as party defenchnt to the rnit. The gravamen of the charge against the appelbnt was that he had not discharged the outstanding mortgage on the property purchased, for which he had been supplied with ample funds by the complainant

and that he had not disclosed how and . in what manner, the complainant's money, meant for the purpose, had been utilized by the appellant.

In answer to the notice issued to him on February 16, 1953, the appellant submitted a long statement by way of an explanation which runs into about 43 pages in print, which is more in the nature of an argument in justification of his conduct than a statement of facts.

The High Court referred the complaint, for inquiry and report, to the Bar Council. Three members of the Council constituted the Tribunal which held a very elaborate inquiry. After recording both oral and documentary evidence, the Bar Council made its report on May 5, 1954, holding that :

' ...... both the charges have been fully established and that the respondent has not only not used the moneys of the complainant for the purpose for which the, money was sent, but that the respondent has not accounted at all for the sum of rupees, 5,000; which was

ndmittedly cashed by him and brought into his bank account though not in his professional account."

In course of its report, the Tribunal found that the appellant had received all the amounts sent by the complainant, as set out above. It also pointed out that an unfortunate feature of the case was that the mortgage bound in question which was one of the "cancelled mortgage documents'', had not been produced before it.

The non-production of the crucial document was explained to the Tribunal by counsel for the complainant. It was. stated that the mortgagedccd in question, along with other document>, had been

left by the complainant with his counsel ancl that thewhole bundle of papers inclucling tho>e documents had "disappeared from his office".

One can onlv surmise as to who may have been responsible fo~ secreting those documents, or for who>e benefit. thev h:id been stolen away, as alleged by counsel for the complainant.

Another ugly aspect of the proceedings was that a number of letters, admittedly written by the appelbnt to the complainant in connection with the tramaction of sale. had been found bv the High Court to have been 4-81 !;. C. Ind1a'59.

Mr.'C'

Tht Advocat ..

General of Madras

Sinha].

Mr.'C' ....

Tire A.duocate-- G,:vra/ of Madrdl

9inhaJ.

tampered with or bodily substituted.

The Tribunal observed with particular reference to exhibit C-12, which was alleged to have been substiruted for the original, that the learned counsel for the complainant had not persisted in the charge that it had been substituted; and that he did not press the charge that there had been certain alterations in some other letters which formed part of the voluminous correspondence that passed between the appellant and the complainant.

It may be observed here that no specific "charge" had been drawn up against the appellant in respect of those

letters.

Hence, when the Tribunal stated that the 'charge' had been withdrawn, it only meant to s2y that the learned counsel for the complainant did not persist in his allegations about those alterations or the wholesale substirution of exhibit C-12 about which we will have to say something more in the course of this judgment.

The Tribunal examined, in some detail, the particular defence of the appellant with reference to the sp<":rific charges mac.le Jgainst hin1 in respect of the sum. of Rs. 5,600, admittedly sent by the complainant for the specific purpose of discharging the mortgage encumbrance on the purchased property. It appears to have been the appellant's case that the demand draft for Rs. 5,500, dated Octo'ier 24, 1951, had been sent to him through Sundararajayya, and that the appellant, after getting the amount of the draft credited to his personal account. kept only Rs. 500 for pa::- ment to the vendor and made over to Sundararajayya the rem'aining 5,000 rupees in cash. It was not his case that the complainant had instructed him to pay to Sundararajavya the 5,000 rupees, alleged by him to have been r"id to Sundararajayya. It was not c-.en his case that he had taken anv receipt for the s.id sum from Sundararaiayya, though he alleged that he had given a receipt to Sundararajayya for the much smaller sum of Rs. 500 which he admitterl to have kept in his hands on account of the complainant for pavment to the ven<iee. After reviewing the entire cvirlencc and particularly the correspondence that passed between the appdlant and the complainant, the

Tribunal came to the conclusion that the appellant "dishonestly and fraudulently represented to the complainant that the mortgage had been cancelled and he picked out 3 out of the 36 documents received by him from the vendor, including the mortgage document herein involved, and sent the same to the complainant describing them as 'cancelled documents'.

The only inference that one can draw is that the respondent having utilized <:he monies intended for the discharge of the mortgage for his own purpose put on the mortgage document the marks of cancellation and sent the same to the complainant at the pressure of the complainant's demand for the discharged mortgage document".

The Tribunal also examined all the relevant evidence bearing on the payment back of Rs. 5,000, to Sundararajayy:i, out of the demand draft for Rs. 5,500, admittedly sent by the complainant and credited to the persona! account of the appellant. As already indicated, Sundararajayya ha•l died before the commencement of the inquiry, and, therefore, his evidence could not be a'aibble to the Tribunal. But in spite of the complete absence of the mortgage bound in question from the record, and of the, possible explanation of Sundararaiayya, the Tribunal had no difficulty in coming to the cm1clusion that the appellant "is clearly guilty not only of professional misconduct but also a clear breach of trust."

Ti!:s report of the Tribunal was closely examined bv a Full Bench of the Madras High Court: The learnel Chief Justice who presided over the Bench, after carefully considering all that could have been said on behalf of the appellant, and the relevant evidence both

01:11 and documentary, confirmed the findings of the Tribunal. It went a little further and held that exhibit C-12 was not genuine and th;1t the letters-exhibits CIO and C-11-coptained interpolations at the imtance of the appellant who was the respondent before the Court. In this connection, the High Court made the following observations : "The learned Advocate-General attacked the l'; c:nuincness of this letter. Whether there was another genuine letter of the same date or not, it i~ not

Mr.'C' ...

Thi A.dvocale- General of M adru

Sinha].

Mr. •c•

The Advocatt- Gentral of Madras

Sinha].

necessary to decide.

No doubt, this letter is in the handwriting of the respondent. After deep consideration of all the circumstances, we are clearly of opinion that this letter must have been introduced into the bundle of documents with the complainant's advocate at or about the same time, when the respondent made the interpolations in the letters dated 6-9-1951 and 6-10-1951, (exhibits C-10 and C-11 )." In the result, the High Court directed that the appellant's name be removed from the roll of advocates of that Court.

Against this order, the appellant prayed for and obtained special leave to appeal to this Court.

It is convenient at this stage, to deal with the arguments advanced by the learned counsel for the appellant.

It has been suggested that the inquiry by the Bar Council Tribtmal was ''rambling and roving".

This objection is not altogether unfounded. It appears from the ordt; r slmt maintained by the Tribunal that charges were framed on July 22, 1953. and the inquirl' continued from date to date until the report was made on May 5, 1954. The Tribunal handhl the case on as many as 45 dates and the printed record of the inquirv runs into 296 pages in print.

This must have entailed a good deal of expenditure of time and money to the parties and one mav particularlv sympathize with the complainant who had to go through all this after having been deprived of at least Rs. 5.000, if not more. as found by the High Court and the Tribunal. But if it is necessary to apportion blame, much of it mav be bid at the door of the appellant himself, who appeus to have :"pent a lot ingenuity o\er tryingto explain his dealings with his unfortunate client. lri answer to the charge framed by the Bar Council T rihunal. the appellant submitted a long "written answer" on September 27, 1953.

But before that, he had already submitted a 'written explanation' on Fchruarv 16, 1953, rnnning into 43 pages in print, as alreacly indicated.

There is no doubt that the appellant left no stone unturned to cloud the issues anrl to throw a veil over his mis-deeds, as found bv the Tribunal and the Marlra' High Court.

It is clear, therefore, that it is

not the appellant who should have made any grievance out of the so-called rambling anq roving inquiry.

It was next pointed out that the inquiry by the Tribunal into the alleged mis-conduct of the appellant was in the nature of a quasi-criminal proceeding, and as necessary corollaries to this proposition, it was contended ( 1) that the charge should have been more precise, and that

(2) it should have been proved beyond all reasonable doubt.

We have examined these contentions with reference to the record as prepared by the Tribunal and in our opinion, it has not been made out that the charge was so defective as to mislead the appellant or to cause any substantial prejudice to him or that there is any room for reasonable doubt as to the truth of the charges framed against the appellant.

The charges framed against the appellant were in these terms :

"That you Mr. 'C', in acting for the petitioner as his advocate in the matter of scrutinising the title deeds of No .. 104-A. Lloyds Road, Gopalapuram, Madras, and putting through the sale of the said premises in petitioner's favour, received from the petitioner Rs. 5,600 for the purpose of discharging a mortgage encumbrance on the property and that you have not applied the monies so entrusted to you then and there for the

purpoes of entrustmel'lt.

That you Mr. 'C' have further not disclosed to the petitioner how and in what manner you have utilised the said monies and that you have not accounted for the same when demanded.

That you have for these reasons committed acts of professional misconduct liable to be dealt with under the R:ir Councils Act."

With referenet: to the charge in the first paragraph, it was contended that the charge, as it appears, has been completely an<wered bv the appellant.

The argument runs as follows : The reference to the sum of R~. 5.600, apparentlv is to the demand draft for the 11aid amount elated Tanuarv 26,

1951. This amount, the appellant claimed, had been paid over to the vendee

Mr. •C'

Tiuocatt Genera/ of Madras

Sinha].

Mr. •C' ...

TM A.dvotat..,.

rural of Madru

Sinh• ].

himself on November 23, 1951, when vacant possession of the premises purchased was delivered to the appellant .

This could have been a complete answer to the charge, if it had been found as a fact that out of the demand draft dated October 24, 1951, of Rs. 5,500, the appelbnt had paid back to Sundararajayya the sum of Rs. 5,000, as alleged by him. But as found by the Court below confirming the conclusions of the Bar Council Tribunal, the appellant had failed to establish by reliable evidence that the sum of Rs. 5,000 had, as a matter of fact, been paid back to Sundararajayya, aforesaid. Hence, on the findings, it is clear that the appellant had in his hands, more than ample funds to pav the entire consideration money including the mortgage encumbrance of Rs. 5,500, after deducting Rs. 1,300, which had already been paid to the vendor by way of earnest money, before the appellant came on the scene. But it is sought to be pointed out on behalf of the appellant that the charge against him was not that he had not accounted for, or had embezzled any portion of the sum of Rs. 5,500, sent to him last on October 24, 1951. This argument assumes that the mortgage-debt outstanding against the purchased property had to be discharged in specie, out of any particular item out of several instal mcnts in which the complainant had entrusted the total sum of Rs. 15,200, to the appellant, in connection with the transaction in question. The appellant had to account for the due application of the said amount of Rs. 15.200,

being the total sum placed in his hands by his client for the purpose of seeing through the transaction. The appellant himself does not claim that he rendered account of the total sum thus entrusted to him by his client. The appellant cannot be said to have duly accounted for all this sum unless it were held that he had paid Rs. 5.000 in cash to Sundararajayya. On his own showing, if it is held, as it has been found by the High Court, in agreement with the Tribunal, that the sum of Rs. 5,000, had not been paid to Sundararaiayya, the appellant has not accounted for the entire amount entrusted to him by his client. This then is a clear

case, shorn of all verbiage introduced by the appellant himself to cloud the issues, that the appellant was entrusted by his client with the sum of Rs. 15,200, out of which, he had to discharge the mortgage-debt of Rs. 5,500, as settled with the JllOrtgagee by the appellant himself, acting on behalf of the complainant. The appellant has never pretended that he has paid this sum to the mortgagee. This is made absolutely clear by the appellant's statement in paragraph 58 of his 'written explanation', to the following effect :

"There is no question of 'my having discharged the mortgage.' I did not discharge the mortgage. I never paid any money to the mortgagee or to anyone on his behalf. I never told or wrote and I could not have told or written to any, at any time, that I had paid the mortgage claim. The allegation or suggestion to that effect is untrue. As already stated, I was not placed with the requisite funds on and after 21-11-1951."

There is thus no escape from the conclusion that the appellant had not applied the sum of Rs. 5,500, in discharging the mortgage debt, aforesaid, out of the sum of Rs. 15,200, placed in his hands by the complainant for the specific purpose of acquiring a clear title to the property. It would have been better if the Bar Council Tribunal had called upon the appellant to account for the entire amount of Rs. 15;200, which he admitted he had received from his client, instead of mentioning only the one item of Rs. 5,600. That would have been a straight case to state against the appellant. But there is no reason to hold that the appellant was in any way prejudiced 'in his defence by the omission in the charge to mention the entire sum of money entrusted to him. It was repeatedly mentioned before us that the appellant might have been a fool in his dealings with the money placed at his disposal by his client-the complainant. There are clear indications in the record that the appellant, far from being a fool, is a knave, and that he knew fully what charge he had to meet. . There is no ambiguity in the charge and there is no doubt . that the High Court was fully justified in whole-Heartedly confirming the conclusions of the

Mr. •C'

•• T ht Ad110cat1- Gennal of Madr111. e

Sinha J.

Mr. 'G'

The Advocate9 Genera! of Madras

Sinha J,

Tribunal. 1t is equally clear to us that there is no room for any doubt whatsoever that the appellant had misappropriated his client's money and that the High Court was fully justified in striking off his name from the roll of advocates of that Court.

It remains to consider the further points sought to be. made on behalf of the appellant that the High Court was not justified in recording its findings in . respect of exhibits C-10, C-ll and C-12, quoted above, specially when the learned counsel for the complainant had .not pressed those alkgations of interpolation and forgery, before the Tribunal. This contention is wellfounded.

We have, therefore, left completely out of account, those allegations of material alterations in exhibits C-10 and C-ll and the alleged wholesale substitution of the original of exhibit C-12.

In considering the question whether the charges framed against the appellant have been substantiated, we have proceeded on the assumption that these letters, as they appear at present, are genuine. They contain the statements of the appellant himself and constitute an attempt to explain away his acts of omission and commission in relation to the transaction of sale for which he had been engaged by the complainant. Those statements are wholly out of tune with the rest of the record and particularly inconsistent with the rest of the correspondence which had admittedly passed between the appellant and the complainant. We have not dealt, in detail, with the voluminous correspondence between the parties because this being an appeal by special leave, we have not found it necessary to examine very closely, he findings of fact recorded by the High Court in concurrence with the Tribunal. The case against the appellant, as made out by the complainant, is fully supported by a large body of reliable oral and documentary evidence which is consistent only with the guilt of the appellant, and wholly inconsistent with his innocence, notwithstanding the fact that he made a belated but vain attempt to white-wash his misconduct.

Turning to the summons issued by this Court to the appellant, the first question that arises is the r

procedure according to which this summons is to be disposed of.

Should this Court initiate independent proceedings in the sense of making fresh inquiry after recording evidence pro and con, and then come to its conclusions, or, should this Court proceed upon the inquiry already made by the High Court through the Bar Council Tribunal, and record its orders after gmng the Advocate concerned an opportunity of being heard against similar orders being passed by this Court, in view of the consideration that an advocate of this Court may be entitled to practise in any of the subonlinate courts , in India even though he may not be borne on the roll of advocates of any particular High Court? In this connection, we have precedents of the time of the Federal Court and of this Court which are analogous to the case in hand.

In those cases, the Federal Court and, subsequenth•, this Court acted upon the report of the H:gh Court containing its orders in respect of an advocate on its rolls and passed orders after giving an opportunity to the advocate concerned to show cause why disciplinary action should not be taken against him in view of the findings of the High Court. In those ca<es, it was not considered necessary to have a fresh inquirv made and the Court being satisfied that the orders of the High Court were well-founded in fact and law, passed similar orders.

Curiously enough, the first precedent of the Federal Court, In the matter of an Advocate( 1), relates to the case of the appellant himself, at an earlier stage of his career as an advocate.

The Court consisting of Sir Maurice Gw, er, Chief Justice, Sir S. Varadachariar and Sir Torick Ameer Ali lJ. dealt with his case. The appellant had been charged in respect of events which had happened in 1934-35, and was convicted in 1941, at the Madras Sessions, of only one out of 5 counts, of an attempt to cheat. He served a sentence of 18 . months' rigorous imprisonment. Then, the matter was dealt with by the High Court on a report made by the Tribunal of the Madras Bar Council, to the effect that the

(1) Ca.; el\'o. X\'1 of i942, decided on March 23, 1<4:l. , , I 'l

Mr. •C'

Tiu Advocate- Gtneral qf Madras

Sinha J.

Mr. •C'

"· The Advocatt- Gmeral of Madras

Sinha].

appellant's conviction involved moral turpitude, and in 1942, the Madras High Court ordered him to be struck off the roll of advocates of that Court. In the course of their short order, the Federal Court made the following observations :

"Having regard to the decision of the High Court of Madras in a matter which may be regarded as analogous (In re an Advocate I. L. R. 46 Mad. p. 903) we have not dealt with that before us as if an order made against the responqent must follow automatically from the result of the proceedings in Madras, and we have heard the respondent at length in support of the written memorandum submitted.

As a result of such hearing however we are not satisfied that circumstances exist so exceptional or extraordinary as to make it either possible or proper for us to disregard the verdict or the subsequent order of the High Court against the respondent ............... .

In thee circumstances we have to hold that grounds have not been adduced sufficient to prevent an order removing the respondent from the rolls of this Court following upon the order made by the High Court of Madras, and such an order must now be made."

The appellant ceased to be on the roll of advocates of the Madras High Court and of the Federal Court as a result of the Federal Court order passed, as quoted above, some time in 1943. In 1948, the appellant moved the Federal Court for re-instatement as an advocate of that Court in view of the fact that he had been re-instated by the Madras High Court bv its order dated March 22, 1948.

That Court has passed its orders on affidavits and certificates of good character during the period the advocate stood struck off the. roll of advocates. A Judge of the Federal Court, during the long. vacation, passed orders re-instating the appellant as an advocate of that Court, following the orders passed by the Madras High Court. That is how the appellant was re-introduced to the profession and within about two years of his re-instatement. the complainant fell a victim to. the appellant's dishonest and fraudulent conduct, as found above. r

In another case, In re : D. A. Shanmugasundaraswami ( 1 ), an Advocate, coming again from the Madras High Court, a similar proceeding followed. One D. A.

Shanmughasundaraswami, . an advocate of the Madras High Court, had been dealt with by that Court for professional misconduct on several counts. After the necessary inquiry and report by the Tribunal of the Bar Council, the High Court directed his name to be struck off the roll of advocates of that Court. As that advocate was also borne on the roll of advocates of the Federal Court, summons under Order IV, rule 29, of the rules of that Court was issued, and the Federal Court consisting of Kania, Chief Justice, Fazl Ali, Patanjali Sastri, Mahajan and B. K. Mukherjee

JT. by their order dated Jam,1ary 24, ordered that his name should be similarly removed from the roll of advocates of the Federal Court.

Their Lordships, relying upon the precedent referred to in the last paragraph, passed their order in these terms:

"Having regard to a precedent of this Court, we did not consider that on the footing of the order made by the Madras High Court an order of removal of his name from the Rolls of this Court should automatically follow. He accordingly argued his case before us in detail.

After hearing the respondent . at great length, we see no reason to differ from the conclusion of the Madras High Court. We are not satisfied that circumstances exist which make either possible or proper for us to disregard the verdict or the subsequent order of the Madras High Court against the respondent. Under the circumstances we hold that no sufficient grounds have been adduced to prevent an order removing the respondent from the Rolls of this Court, following upon the order made by the Madras High Court, and such an order is therefore made.".

This Court dealt with the case of an advocate of the Bombay High Court, who was also enrolled as a senior advocate of this Court That case is Jn the matter of Mr. 'G'. a Senior Advocate of the St1preme Court('). After

(1) Mi:c. Ca, e No. X of 1948, decided on January 24' 1949.

(2) [1955] I S.C.R. 490.

Mr. 1C'

The Advocatt- General of Madras

Sinha].

Mr. •c•

The Advocate- General of Madras

Sinha J .

the appellant claimed, had been paid over to the vendee Bombay High Court for six months, and that order was brought to the notice of this Court, this Court dealt with the matter under Order IV, rule 30, and passed orders similar. to that passed by the Bombay High Court.

Another case from the Bombay High Court, dealt with by this Court is In the matter of 'D', an Advocate of the Suprement Court( 1 ). When the matter was dealt with by this Court, under Order IV, rule 30 of the Rules, the advocate, after having been suspended from practice for a period of one year, by the Bombay High Court, prayed that a fresh inquiry might be held into the matter. This Court rejected that prayer of the advocate, and proceeded upon the record as made by the High Court through the Bar Council.

This Court agreed with the view taken by the Bombay High Court about his mis-conduct in connection with a criminal trial, and suspended the advocate from practice for a period co-terminous with the period of suspension fixed by the High Court.

On a review of the aforesaid precedents, it may be taken that the following principles have been laid down by the Federal Court and by this Court when dealing with a summons under rule 30 of Order IV of Supreme Court Rules, or, uts equivalent rule of the Federal Court :- ( l) Any order by a High Court, by way of discipl.inary action against an advocate borne on the roll of advocates both of a High Court and of this Court. is not automatically followed by a similar order by this Court;

(2) this Court need not start a fresh inquiry by way of recording evidence over again against the advocate concerned, for professional mis-conduct;

(3) it is enough that this Court should generally examine the record prepared bv the Bar Council of a High Court. un<ler the direct.ions of that Omrt, on the basis of which the High Court has passed its orders ;

and take into account the findings of the High Court;

(•) [•9s5] 2 S.C.R. 1006.

( 4) of course, this Court has to grant a reasonable opportunity to the advocate concerned of being heard against the action proposed to be taken against him under its disciplinary jurisdiction;

(5) it is open to this Court, in an appropriate case to permit the advocate to adduce such additional evidence as it thinks fit;

(6) this Court, after hearing the advocate or his legal adviser and, if necessary, the Attorney-General, or such other advocate as may be appointed to place the vi.ew-point of the legal profession generally, or of the complainant or the aggrieved party if he desires to be heard in the matter, may pass such order as it' may deem fit and proper, in its judicial discretion.

It may be noted that in the instant case, at the final hearing, we did not fin<l it necessary to adjourn the hearing to issue notice to the Attorney-General, nor was any request made in that behalf.

In view of these precedents, as also in view of the fact that ordinarily it is necessary that a person, in order to be entitled to be enrolled as an advocate of the Supreme Court, should be borne on the roll of advocates of a High Court, proceedings in this Court, under rule 30 of Order IV, of the Rules, should normally be treated as a natural sequal to the proceedings in the High Court under the Bar Councils Act. lf one is not a fit an<l proper person to continue on the roll of advocates of a High Court, a fortiori he cannot be permitted to continue on the roll of advocates of this Court. It is a great privilege to be borne on the roll of advocates of the Supreme Court, and only such persons as show a high degree of integrity of character should be so enrolled.

Any person, who has been found by the High Court to have fallen from that high standard of integrity of character required of an advocate of a court, must suffer the consequences of his name being removed from the roll of advocates of this Court. As already indicated, it was rather unfortunate that the appellant, after being once struck off the roll of advocates of the Madras High Court, and of the Federal Court, should have been reinstated, and thus been enabled to deal

.1957

Mr. •c•

The .A.dvocatr Central of Madras

Sinha].·

Mr. c

Tht Advocate- Geiieral of Madras

Sinha J.

M'!Y B.

with clients who have to trust their legal advisers with moneys in the course of their fiduciary relationship.

These protracted proceedings against the appellant leading up to the summons under rule 30 of Order IV of the Supreme Court Rules have ended in the removal of the appellant's name from the roll of advocates of the High Court and of this Court, but only after the complainant has lost his good money.

It is clear, therefore, that the continuance of the appellant in the legal profession is a serious menace to the profession itself, which requires a high degree of integrity of character and sense of responsibility in which the appellant has been found singularly lacking.

In view of these considerations, the appeal must be dismissed and the rule made absolute with the result that the appellant's name shall stand removed from the roll of advocates of this Court.

Appeal dismissed.

BABULAL AMTHALAL MEHTA

THE COLLECTOR OF CUSTOMS, CALCUTTA

(S. R. DAS C.J., JAFER IMAM, s. K. DAS,

GovINDA MENON and A. K. SARKAR JJ.)

Sea Customs-Goods sei%ed in reasonable belief that they are 1muggled goods-Burden of proof-If violative of equal protection of law-Sea Customs Act (VII of 1878), as amended by Amending Act (XX! of 1955), 1. 178-A-Constitution of India, Art. 14.

Section 178-A of the Sea Customs Act which places the burden of proving that any of the goods mentioned in the section and reasonably believed to smuggled are not really so on the person from whose p:>ssession they arc seized, is not discrimin2tive in character and does not violate equal protcCtion of law guaranteed by Art. 14 of the Constitution.

Budhan Chaudhury and Others v. The State of Bihar, (1955) I S.C.R. 1045, applied.

Purushottam Govindji Halai v. Shri B. M. Desai, (1955) 2 S.C.R. 889 and A. Thangal Kunju Musaliar v. M. Venkitachalam Potti and another (1955) 2 S.C.R. 1196, referred to.

Narayan Bhaskar

Art. 14

be calculated

s. 18

THE ADVOCATE-GENERAL OF MADRAS

JAGANNADHADAS

SINHA

Madras High Court

Supreme Court

Supreme Court Rules

March 23, 1943

D. A. Slianmugasundaraswami

January 24, 1949

(1955) 1 S.C.R. 490

(1955) 2 S.C.R. 1006

M. S. K. Aiyanger

R. Ganapathy Iyer

T. M. Sen

SINHA

December 3, 1954

K. T. Appannah

Bangalore city

Madras

Sundararajayya

May 11, 1951

June 26, 1951

August 21, 1951

September 26, 1951

October 19, 1951

July 9, 1951

September 6, 1951

Octoher 24, 1951

s. 5

June 26, 1952

June 28, 1952

November 14, 1952

February 16, 1953

May 5, 1954

Octo'ier 24, 1951

Sundararajayya

Sundararajavya

Sundararaiayya

Sundararajayy

Bar Council Tribtmal

July 22, 1953

September 27, 1953

Gopalapuram

October 24, 1951

Bar Council Tribunal

Sinha

India

Maurice Gw

S. Varadachariar

Torick Ameer Ali

Madras Bar Council

High Court of Madras

March 22, 1948

D. A. Shanmugasundaraswami

D. A.

Shanmughasundaraswami

Kania

Fazl Ali

Patanjali Sastri

Mahajan

B. K. Mukherjee

Bombay High Court

Order IV of Supreme Court Rules

.A.dvocatr Central of Madras

Order IV of the Supreme Court Rules

BABULAL AMTHALAL MEHTA

COLLECTOR OF CUSTOMS, CALCUTTA

S. R. DAS

JAFER IMAM

s. K. DAS

GovINDA MENON

A. K. SARKAR

Sea Customs-Goods

Constitution of India

Art. 14

Section 178

Customs Act

Art. 14

(1955) 2 S.C.R. 889

(1955) 2 S.C.R. 1196