SHYAM SUNDAR MISRA Vs. STATE

JUDGEMENT

(1.) THIS is a reference under Section 14, Legal Practitioners' Act, against a pleader of Sonepur, made by the District Magistrate of Bolangir, through the Sessions Judge of the District. It arises out of a petition dated 22 -1 -51 sent to the District Magistrate by the pleader on behalf of the petitioners therein. That petition arose out of a criminal case in the following circumstances. There appears to have been a dacoity in the house of one Bhagirathi Gountia of Bhowanipalli, P. S. Binka, on 20 -7 -50. In the course of the investigation into that case under Section 395, Penal Code one Karu Khutla and ten others were suspected of being involved in the dacoity. They were accordingly arrested and made accused in that case. After a series of remands the police submitted a final report of the investigation recording that the case was true but that there was not sufficient evidence to place the accused on trial. The Sub -Divisional Magistrate, thereupon, by his order dated 13 -11 -50 discharged all the accused persons. The petition which has given rise to these proceedings was filed nearly two months later on 22 -1 -51 and is as follows:

(2.) THE formal charge framed against the pleader is that para. 5 of his petition dated22 -1 -51 referred to above is obnoxious and contains allegations against a Magistrate exercising judicial discretion and accordingly amounts to professional misconduct. It is further stated therein that the District Magistrate called for a written apology & that the pleader did not care to offer one. It is not clear whether this has been included as a charge of professional misconduct. It has probably been narrated in the charge as a justification for starting these proceedings. I must notice, however, that I am unable to see what power or jurisdiction the Magistrate had to call upon the pleader to file an apology. His function is only to send up a report after inquiry, if he thought that a prima facie case for a report has been made out.

(3.) THERE is no doubt, however, that para 5 of the petition which has been marked as Ext. I on the inquiry, does contain an insinuation of unjudicial conduct against the S. D. M. The question that has been raised has, therefore, to be considered, i.e., whether or not the pleader in having made that insinuation is guilty of professional misconduct. The pleader has filed a statement wherein he says that whatever was written in the petition was written after due verification, that is according to the knowledge and belief of the petitioners who had instructed him to file it and that he satisfied himself that his clients were making the statement being put under an aggrieved condition and that he acted in good faith and honest belief and that he had no ulterior motive. He maintains that he did not exceed his privilege as a lawyer in filing that petition. In support of his plea he has filed, in the course of the inquiry, a letter of authority, given to him by the petitioners in that petition, which is marked as Exhibit 2 and on the basis of which, according to him, the petition as Exhibit 1 was drafted. In that letter, the petitioners having stated that at the instance of false information given against them by Bhagirathi Gountia of Bhowanipalli by way of naming them and identifying them as having participated in the dacoity, they were involved as accused in the dacoity case and suffered serious injuries, proceeded to state as follows: