In Re: F.A. Mukhtar

Courtney Terrell, C.J.—This is a reference by the District Judge of Patna concerning the conduct of a mukhtar practising in his district. The mukhtar appeared for a person who was convicted u/s 182 of the Indian Penal Code. After the conviction he took from his client a mukhtarnama which was not stamped (but on which he signed his acceptance), with instructions to lodge an appeal. He received the mukhtarnama on the 9th May, 1928, on the day of the conviction before his client was removed to Jail. He did not lodge the appeal until July 12, 1928, that is to say, a very considerable time after the expiration of the time for appeal allowed by law.

His explanation is this: He says that at the time of taking the mukhtarnama he was told by his client that his relations would in due time call upon him (the mukhtar) and supply him with the necessary fee for the mukhtamama stamp and for his remuneration which would be due to him for conducting the appeal. Time went by and he did not receive any visit from the relations and for some reason which is left unexplained he neither filed the appeal in time nor did he communicate with the prisoner in Jail or tell the prisoner''s relations that the fees must be forthcoming or he would be unable to prosecute the appeal. He did none of these things but waited till the 12th July and then he says out of his own pocket he purchased the mukhtamama stamp and lodged the appeal. The mukhtamama stamp bears writing upon it which would certainly appear to read the 12th not of July but of June, 1928. We sent this case back for an investigation by the District Judge as to whether the stamp had in fact been purchased in June or had been purchased in July. The District Judge called before him the stamp-vendor who on looking at the stamp said that the writing which was in his hand-writing and was on the stamp did read as the 12th June and not as the 12th July. Subsequently the learned District Judge called the stamp-vendor again before him and had him cross-examined by Counsel on behalf of the mukhtar. The cross examination led to nothing but this that it might be possible that in a hurry a person writing the Hindi figure for "7" might make a mistake and make it look like a "6" and certainly it was possible if the figure was distorted even with the best intention that that which is read as a "6" might originally have been written with the intention that it should be read as a "7" but no questions were directed to induce the stamp-vendor to admit that in fact that mistake was made in this particular case.

It appears to me probable that in fact the stamp was sold to the mukhtar not in July when the appeal was filed but in June but, however that may be, and one must concede that it is a matter which is not conclusively proved we may deal with this case on the basis that the stamp was in fact sold on the day when the appeal was lodged and that the funds for the purchase of the stamp did not come from the pocket of the accused or his relatives but from the pocket of the mukhtar. On that basis the fact remains that the mukhtar having accepted instructions from his client to file an appeal which instructions were none the less valid instructions as between the client and the mukhtar whether they bear a stamp or not, he should have acted up to his obligations. He should either have lodged the appeal within the time allowed by law or if he did not feel inclined and there was no obligation whatever upon him to do so to buy the stamp he should have communicated with his client in Jail. Communication with the relatives would not be enough; he should have communicated with the client personally and should have told him that he was no longer able to consider himself in the position of being retained as the legal adviser of the client. It is necessary to emphasise this obligation of a legal adviser to a client. It is not right that a legal adviser should be able to come after the lapse of a period of time and should say it is true that I accepted instructions from you but those instructions were conditional upon my receiving my remuneration. If the client does not produce the necessary remuneration it is the duty of the legal adviser to go back to the client and then and there repudiate the instructions. The absence of the necessary remuneration does not absolve the legal adviser from his obligations to his client unless the matter is brought specifically to the notice of the client and that view of the matter must be borne in mind by practitioners, particularly those who have the very responsible duty of appearing for very poor clients. The observations. I have made apply most particularly to legal advisers who are engaged in criminal cases. In this case we are convinced that there has been a serious breach of professional duty to the client and the client has suffered materially from that breach and we propose to emphasise our view of professional duty by imposing a penalty on the mukhtar by suspending him from practice for three months.

Ross, J.

I agree.

Kulwant Sahay, J.

I agree.