MAHBUB ALI KHAN Vs. STATE

JUDGEMENT

(1.) THROUGH a letter dated 1 -7 -1956, the District and Session Judge, Bidar, reported to the High Court, Hyderabad, that Shri Mahbub Ali, an advocate, having filed his vakalatnama on behalf of 13 accused in Murder Case No. 10/8/55, State v. Dev Rao and Ors. has failed to attend the Court on the dates of hearing, viz., 16 -6 -55 and 1 -7 -55; that he sent a telegram expressing his inability to attend the Court; that the case had to be adjourned; that the accused had informed that they had already paid their fees to the advocate and that the file also is with the advocate. The District and Sessions Judge requested that the High Court may call for an explanation of the advocate and take necessary action against him. A notice was issued to the advocate by the High Court calling on him to submit his explanation. The advocate, it appears filed a counter and later an affidavit. It is stated in the counter that one Shri Seethal Pershad was the principal lawyer on behalf of the accused and that he (Mahboob Ali) was engaged by him to plead in the case on daily fee basis and that he could not attend the Court on the aforesaid dates of hearing as he was not paid his travelling and boarding expenses. Through a second letter dated 22 -8 -1955 the District and Sessions Judge while forwarding the application of the advocate concerned to the - High Court informed that the advocate was regularly appearing on the dates of hearing of the case. But through a third letter dated 26 -8 -55 the District and Sessions Judge wrote again that the advocates for the accused, viz., (1) Shri Mahbub Ali (2) Shri Seethal Pershad and (3) Shri Krishna failed to attend the Court that day to plead for the accused in their defence. The matter was placed before a Bench consisting of the former Chief Justice Shri Schripat Rau Palnitkar, Mr. Justice Ansari and Mr. Justice Jagan Mohan Reddy. The learned Judges made the following observation:

(2.) THE question to be determined is whether Shri Mahbub Ali, advocate, is guilty of misconduct. We may at the outset point out that an advocate engaged - in a case owes duty not only to his client but also to the Court The practice, extent and measure of such duty and the circumstances in which the breach would constitute misconduct are different questions. No hard and fast rule can be laid down and it depends on the circumstances of each case. As is stated above the duties of the advocate are two fold. The advocate by his obligation is bound to discharge his duties to his client with the strictest fidelity and is answer able to the disciplinary jurisdiction of the Court for dereliction of duty. The relation involves' the highest personal trust and confidence so much so that it cannot be delegated without' consent. A pleader is more than a mere agent or servant of his client. He is also an officer of the Court and as such he owes the duty of good faith and honourable dealing with the Court before which he practices his profession. Three fundamental questions emerge for consideration, viz. firstly when a pleader has accepted a Vakalatnama is he bound to appear to conduct the case in its various stages, secondly if he is so bound does the liability continue till he has discharged himself by recourse to the appropriate procedure, and thirdly does the failure to appear to conduct the case before he has so discharged himself render the pleader liable to the disciplinary action by the Court. So far as civil cases are concerned there is a special provision in the Civil Procedure Code for appearance through a pleader or a recognised agent and for appointment of a pleader. Usually the appointment of a pleader is through a Vakalatnama. The form of Vakalatnama in civil and criminal cases is the same. Order 3, R, 1, C. P. C, refers to appearances in person by recognised agent or by pleader and O. 3, Rule 4, deals with the appointment of a pleader. There is no such specific provision in the Criminal Procedure Code excepting Section 340, Cr.PC which enjoins:

(3.) IT means also a dereliction of or deviation from duty. Even assuming that it is negligence and not misconduct such a negligence which amounts to dereliction of or deviation from duty cannot be excused. The advocate concerned was conducting a murder case where 13 accused persons were charged of murder and 3 lawyers had tiled their Vakalatnamas and none of them make their appearance. There is nothing on record to show why the other two lawyers did not make their appearance. It is stated on behalf of the advocate that Shri Seethal Pershad was the principal lawyer and that the file used to be with him. This explanation is on the face of it most objectionable. We cannot for a moment justify such an action and understand how a lawyer can accept a brief and allow the file to be kept by another lawyer. Such a practice is not commendable and it is hoped that the lawyer concerned would abstain from such a practice. The other explanation given by the advocate concerned for his absence on 1 -7 -55 and 26 -8 -55 is that the Pairavakar Hanumantha Rao had told him that on 1 -7 -55 the prosecution witnesses were not attending the Court, that if he were to take him to Bidar he would undergo unnecessary expenses, that on 26 -8 -55 the statements of the accused under Section 342, Cr.PC would be recorded and that his presence was unnecessary. His absence on 1 -7 -55 on the ground that the witnesses were not attending the Court that day may be justifiable to some extent so far as his clients are concerned. But by no dint of imagination could this absence of the advocate without intimating the Court beforehand be justifiable to the Court. Then again we fail to understand how the advocate can justify his action for his absence on 26 -8 -55 on the ground that his presence at the time of the recording of the statements of the accused under Section 342, Cr.PC was unnecessary. It is unimaginable that an advocate of his standing would think that the statements under Section 342, Cr.PC were not important. The object of recording statements under Section 342, Cr.PC is to acquaint the accused with all the circumstances appearing in the evidence against him and to explain him the importance of such circumstances. In the case of Hate Singh v. State of Madhya Bharat A.I.R. 1953 SC 468 (A), their Lordships of the Supreme Court have pointed out that the statements of the accused under Section 342. Cr.PC must be treated like any other pieces of evidence coming from the mouth of the witness. It would follow therefore that the statements of the accused under Section 342, Cr.PC are of great importance and we cannot understand how the advocate could think that his presence was unnecessary on that day. This action of his cannot amount to mere negligence but a dereliction of or deviation from duty. During the course of the arguments our attention was drawn to number of authorities. The first case relied upon is the case In the matter of F., a Mukhtar . That was a case in which a Mukhtar, on the conviction of his client, had undertaken to file an appeal on his behalf on the understanding that the client's relations would pay him his remuneration. The Mukhtar's remuneration was never paid and he filed the appeal long after the period prescribed by law had expired. It was held: