EMPEROR Vs. RAJANI KANTA GHOSE

JUDGEMENT

(1.) This is a reference under Section 14 of the Legal Practitioners Act in the matter of Babu Rajani Kanta Ghose, Mukhtear. The facts proved by the evidence are narrated by the District Judge in his letter of reference. Babu Rajani Kanta Ghose was engaged as a Mukhtear on the side of the prosecution in a criminal case in which there were four accused persons. Under instruction received from one Padlochan Das, who was looking after the case of two of these accused persons, namely Harihar and Nirubar, Babu Rajani Kant Ghose prepared a draft written statement on their behalf. It has been proved that neither Harihar nor Nirubar gave instruction direct to him to prepare the draft. The draft written statement was taken to the gentleman who was engaged as Mukhtear on behalf of the four accused persons. When he read the written statement he found that it would be impossible to file it in Court, inasmuch as it implicated the other two accused to their prejudice. The result was that Babu Nabakrishta Das Adhikary did not file the written statement. It is thus obvious that Babu Rajani Kanta Ghose, while engaged for the prosecution in the criminal case, did prepare a written statement for the use of two of the accused persons. In these circumstances the Sub-Deputy Magistrate took proceedings under the Legal Practitioners Act and framed a charge in the following terms: "Whereas it appears that you were retained by the prosecution in the case of Pahul Mali v Sishir Kumar Das Mohapatra and whereas it appears that you had drafted a written statement on behalf of accused Harihar and Nirubar and thereby acted contrary to the provisions of Section 13(a) of the Legal Practitioners Act, I charge you under the said Section of the said Act." The Mukhtear filed a written statement in answer to this charge. Evidence was recorded in due course and this reference ultimately made by the District Judge as already stated.

(2.) It has been argued before us by Mr. Hazra that no case has been made out under Section 13(a) of the Legal Practitioners Act, inasmuch as the evidence establishes that Padma Lochan Das who approached Babu Rajani Kanta Ghose was authorized by Harihar and Nirubar to look after the Criminal case on their behalf. In our opinion, it is not necessary to consider whether the evidence does or does not establish this point. The reference need not be treated as one Under Section 13(a) which provides for the case where a Mukhtear takes instructions except from the party on whose behalf he is retained or some person who is the recognised agent of such party within the meaning of the Civil P. C. or some servant, relative or friend authorised by the party to give such instructions. The facts stated in the notice issued by the Sub-Deputy Magistrate show that the case was really under Section 13 Clause (b); which includes a case where a legal practitioner is guilty of fraudulent or grossly improper conduct in the discharge of his professional duty.

(3.) There is, in our opinion, no doubt as to what actually happened. It is plain upon the evidence and upon the admission of the Mukhtear that while he was acting on behalf of the prosectution, he drafted a written statement on behalf of two of the accused persons. An attempt has been made to support the theory that he might have forgotten the facts of the case and might not have realised that the written statement which he drafted related to the very case he was to conduct on behalf of 1 the prosecution. We find from the record, however, that he accepted the Mukhtearnama on the 14 June 1921 when the proceedings were instituted, and the written statement was not drawn up till the 16 February 1922 at the concluding stage of the trial. During the six months which had elapsed, he might be expected to have made himself familiar with the case for the prosecuton. Indeed he does not allege that he was under a misapprehension, He pleads that he did not realise that his conduct was improper; in other words, he believed in good faith that, though he was Mukhtear for the prosecution, he was free to prepare the written statement for the accused.