HARI CHARAN SARKAR Vs. DISTRICT JUDGE OF DACCA

JUDGEMENT

(1.) We are invited in this Rule to discharge an order made under Section 33 of the Legal Practitioners Act, 1879, as amended by the Legal Practitioners Act, 1896, by which the name of the petitioner has been included in a list of touts. The proceedings in the Court below have been attacked on the ground of multifariousness under the following circumstances: The District .Judge of Dacca, on the 31 July 1909, drew up a proceeding under the section, in which he recorded that he had reason to believe that the persons named in the list habitually acted as touts, and he called upon them to show cause why they should not be proclaimed as touts. A separate notice was served upon each of these persons. On the 25 August, the petitioner filed a written statement and showed cause. On that very date, written statements were filed on behalf of most of the other persons who had been called upon to show cause. On the 3 September, the District Judge directed that each of the objection cases was to be numbered and tried separately, and summonses were ordered to be issued on the witnesses named by the different persons. On the 17 September, the cases were taken up for hearing. The pleaders and the mukhtears, who had appeared to give evidence in support of the allegations that the persons called upon to show cause were habitual, touts, prayed that their evidence might be regarded as applicable to all the cases, so that they might be saved from the harassment of separate examination and cross-examination in the different proceedings. The District Judge acceded to this request. No objection was made to the procedure adopted by the persons who had been called upon to show cause. After the conclusion of the examination of the witnesses who appeared in support of the enquiry directed by the District Judge, the witnesses on behalf of the opposite parties were examined separately. The Judge took time to consider the matter and on the 25 September, 1909, delivered a judgment, in which he dealt with the case of each person separately, examining in detail the evidence for and against him. The result was that he directed the names of several persons to be included in the list of touts published under the section. On behalf of one of these, Hari Churn Dey, the proceedings before the District Judge have now been assailed on the ground that they were multifarious and conducted in a manner unknown to legal procedure. It has further been contended that an order made under these circumstances ought to be deemed , as made without jurisdiction and discharged on that ground. In support of this proposition, reliance has been placed upon the cases of Smurthwaite V/s. Hannay & Co. (1894) A.C. 494 : 63 L.J. Q.B. 737 : 6 R. 299 : 71 L.T. 157 : 43 W.R. 113 : 7 Asp. M.C. 485; Subrahmania Ayyar V/s. King- Emperor 25 M. 61; Sadler V/s. G W.R. Co. (1895) 2 Q.B. 688 : (1896) A.C. 450 : 65 L.J. Q.B. 462 : 74 L.T. 561 : 45 W.R. 51 and Gower V/s. Couldridge (1898) 1 Q.B. 348 : 67 L.J. Q.B. 251. It has been argued on the other hand, by the learned Deputy Legal Remembrancer, who has appeared to support the order of the District Judge, that the cases relied upon have no application; that the procedure was perfectly regular ; and that, in any view, as no objection was taken in the Court below to the mode in which the enquiry was conducted, the objection, which is of an entirely technical character, ought not to be allowed to prevail, especially as there is no reason to suppose that the petitioner has, in any way, been prejudiced. The question raised is one of some novelty and apparently of first impression, and the validity of the objection must be determined with reference to the provisions of Section 36 of the Legal Practitioners Act.

(2.) The section provides, we quote so much only of it as applies to the case before us, that every District Judge, as regards his own Court and the Courts subordinate to him, may frame and publish lists of persons, proved to his satisfaction, by evidence of general repute or otherwise, habitually to act as touts, and may, from time to time, alter and amend such lists.

(3.) Sub-section (2) then lays down that the. name of no person shall be included in any such list, until he shall have had an opportunity of showing cause against such inclusion. It is manifest, therefore, that three elements are essential for the validity of the proceedings. In the first place, the enquiry must be held by the District Judge ; and with reference to this point, it has been ruled that the power of enquiry or of obtaining evidence cannot be delegated to a Subordinate Court or officer [in the matter of Madhu Pershad 6 C.W.N. 289; In re Praianna Knmar 12 C.W.N. 843 and In re Chandi Charan Dey 12 C.W.N. 842]. In the second" place, the decision must be based upon legal evidence; so that, as was ruled in the case of In re Siddeshwar Boral 4 C.W.N. 36, it is not competent to a District Judge to act upon an unverified report from the Secretary of a Bar Association, though, as pointod out by the Madras High Court in Bavu Sahib V/s. District Judge of Madura 26 M. 596, the Court may act upon affidavits and need not necessarily hear oral evidence. In the third place, no order is to be made to the prejudice of any person until he has been afforded an opportunity to show cause against the inclusion of his name in the list so that, as observed in the case of In re Omar Bahadur A.W.N. (1896) 107, the Court should permit such person to give evidence in rebuttal of the case made against him. If these elements are established, it is difficult to appreciate how the legality of the order can be challenged. It has been strenuously argued, however, on behalf on the petitioner, that although no procedure is prescribed by Section 36 for the conduct of the enquiry, yet upon general principles, an enquiry which includes in its scope the case of more than one person, is open to the objection of multifariousness, and is on that ground alone illegal, The argument in substance is, that an enquiry under Section 36 must be confined to the case of one person, and one person alone. The learned Vakil for the petitioner has conceded that there is no authority which directly supports this proposition; that as a matter of practice, enquiries under Section 36 have been conducted against several persons simultaneously; and that in the cases to be found in our reports, though the legality of orders under Section 36 has been questioned on various grounds, no objection has apparently even been taken on the ground of multifariousness. The learned Vakil for the petitioner has, however, suggested that although the objection now taken has never suggested itself to the profession before, it may, nevertheless, be well founded and he has pressed us to consider the matter as one of principle.