CHIMANLAL BHOGILAL SHAH Vs. PANDURAO BHAILAL DESAI PRESIDENT AHMEDABAD CRIMINAL COURTS BAR ASSOCIATION

JUDGEMENT

(1.) * * * * Both Mr. Pathak and Mr. C. C. Patel appearing for the two petitioners argued that the action taken by the learned Sessions Judge was on the report of the President of the Association which report as the Rojnama indicates was made on the 30th of June 1959. They argued that that report was on the basis of the resolution passed at the meeting of the 25 of June 1959. They contended that that meeting was not a specially convened meeting as required by the explanation to section 36 of the Act as the notice dated the 18th of June 1959 convening that meeting did not set out the list of persons against whom action was proposed to be taken. It was contended that in the absence of such a list in that notice the members who were present at the meeting and who voted for the resolution had no opportunity to consider and if necessary to make their own inquiries about the person or persons whether he was a tout or not before such a member voted at the meeting.

(2.) Section 36 of the Act creates a special jurisdiction for the several authorities mentioned in sub-section (1). The provisions of section 36 are undoubtedly of a drastic and unusual nature and since such an inquiry is likely to affect both the prestige and the livelihood of a person sought to be declared a tout it has to be conducted strictly in accordance with the procedure laid down in that section. Section 36 and the explanation annexed thereto lay down three essential conditions which if complied would make the resolution of the Association admissible as evidence of general repute of the person against whom the inquiry is held. These three conditions are

(3.) So far as the conditions (1) and (3) are concerned no objection is raised on behalf of the petitioners. The objection is with regard to condition No. 2. Mr. Pathak and Mr. Patel complained that the list made by the committee appointed by the Association of persons to be declared as touts was not annexed to the notice dated the 18th of June 1958; nor was the list annexed to the agenda of the meeting which agenda was set out at the foot of the notice dated 18th June. It was therefore contended that the meeting which passed the resolution of the 25th of June 1959 cannot be said to be specially convened for the purpose of declaring a certain or a named person or persons to be tout or touts. Reliance was placed upon two decisions one of Sind and the other of Bombay. In Acher Khuda Baksh v. Bar Association Karachi A. I. R. 1937 Sind 4 it was held that the words any person appearing first in the explanation to section 36 mean any named person or any specified person and therefore the meeting of the Bar Association must be specifically concerned for the purpose of declaring any person or persons whose name or names are before the meeting when it is convened to be or not to be a tout. The learned Judges therefore observed that to hold otherwise would be to allow surprises to be sprung upon the meeting and for persons to be declared touts without due warning to the members of the Association who if they had notice might have made inquiries quite apart from the fact that members absent might have been present if they had notice of the names which were to be brought before the meeting. It appears from the facts stated in that decision that one Achar Khuda Baksh who was to be declared a tout by the learned Additional Judicial Commissioner Karachi was not named amongst persons who were to be considered touts in the notices convening the meeting and that while certain names were before the meeting when it met the name of Achar was proposed and seconded by certain members of the Association during the course of the meeting and it was on this resolution so made and seconded during the course of the meeting that the members of the the Association unanimously resolved him to be a tout. The learned Judges held that the resolution so passed suffered from infirmity and therefore could not be regarded as having any evidentiary value. The learned Judges however held that the affidavits filed by the applicant contained confessions as to his association with pleaders and observed on the strength of these affidavits that though the resolution of the Bar Association was deprived by reason of the infirmity therein of any evidentiary value the resolution was in fact correct. They rejected the resolution for the purpose of evidence but relied upon the affidavits and the statements of the applicant and confirmed the order passed by the learned Additional Judicial Commissioner whereby the applicant was declared a tout. In Maganbhai Nathabhai v. Dinkarrao N. Desai. A.I.R. 1932 Bombay 596 Mr. Justice Ragnekar held that a meeting convened by the Bar Association could not be treated as a specially convened meeting for the purpose of declaring the applicant to be a tout. The grounds which impressed the learned Judge in finding that the meeting was not specially convened were :-