Nallasivan Pillai vs N. Ramalingam Pillai

Sadasiva Aiyar, J.—The petitioner Nallasivan Pillai presented an application u/s 13 of the Legal Practitioners Act XVIII of 1879 against a

Second Grade Pleader, Ramalingam Pillai, to the District Court of Tinnevelly on the ground that the said Vakil whom he had engaged to conduct

an execution was guilty of improper conduct in the discharge of his professional duty in the matter of that execution.

Section 13 relates to the power of the High Court to suspend a pleader or Mukhtear and has clearly no application. Taking it that Section 13 is

a mistake for Section 14 even then a charge of unprofessional conduct in the discharge of professional duty made against a pleader can be

enquired into only by the presiding officer of the. Court in which the pleader practises. The second Grade pleader, Ramalingam Pillai, having no

right to practice in the District Court and the execution matter in which the alleged misconduct took place relating to a decree of the Tinnevelly Sub

Court on its Small Cause side, the charge should not have been made to the District Court and could not be taken congnizance of or enquired into

by the District Judge.

The District Judge, however, overlooked this point went elaborately into the matter, examined the petitioner Nallasivan Pillai on solemn

affirmation as petitioner''s witness, found his allegations against the Vakil to be wholly false and dismissed the petition on the 2nd September 1916.

It goes without saying that the learned District Judge quite honestly believed himself to have jurisdiction to make that enquiry, neither the petitioner,

Nallasivan Pillai, nor the second Grade Pleader, Ramalingam Pillai, (who was represented in the enquiry by another Vakil Aruinugam Pillai) having

evidently brought to the notice of the District Judge that the District Judge had no jurisdiction to make such enquiry.

On that same date, 2nd September 1916, the learned District Judge sent the petitioner, Nallasivan Pillai, u/s 476, Criminal Procedure Code to

the nearest 1st Class Magistrate in order that he might be tried for offence u/s 193, Indian Penal Code in that the petitioner made false statements

as his own witness in the enquiry held under the Legal Practitioners Act in the matter of a receipt Ex. I and in two or three other matters.

Against this order u/s 476, Criminal Procedure Code, the present Civil Revision Petition has been filed and the petition contains 6 grounds. The

last two of the six grounds relate to the merits. I need not say that this Court will interfere u/s 115, CPC or u/s 107 of the Government of India

Act, 1915, with an order passed u/s 476 of the Criminal Procedure Code by a Lower Court only in very exceptional cases. The other four

grounds of the Revision Petition raised the two following points : (1) the enquiry under the Legal Practitioners Act by the District Judge is not a

judicial proceeding, (2) it was not, in this matter, a court within the meaning of Section 476, Criminal Procedure Code. It will be seen that neither

of these points expressly raises the contention that the District Judge had no jurisdiction under the Legal Practitioners Act to conduct the enquiry

which he did. An enquiry under the Legal Practitioners Act by a court is, in my opinion, a judicial proceeding. See Kotha Subba Chetty v. Queen

ILR (1883) M. 252. The expression ""judicial proceeding"" is not directly denned in the Indian Penal Code. Explanation 2 to Section 193, Indian

Penal Code, however, makes it clear that a ""proceeding before a court of justice"" acting in the administration of justice is a judicial proceeding, The

Criminal Procedure Code, Section 4 Clause (m) defines ""judicial proceeding"" as including any proceeding in the course of which evidence may be

legally taken on ""oath"" (which includes ""solemn affirmation""). I cannot therefore accept the contention that a District Judge taking evidence in a

proceeding of which he is entitled to take cognizance under the Legal Practitioners Act is not ""a court"" or that the enquiry is not a ""judicial

proceeding.

I am of opinion therefore that the grounds mentioned in the memorandum of Civil Revision Petition have not been established as valid. But Mr.

Deva Doss argued that as the District Judge had no jurisdiction to entertain the petition or to enquire into it, the whole enquiry was ultra vires, and,

for false statements made in such an enquiry by the petitioner as a witness, he cannot be punished u/s 193, Indian Penal Code as the petitioner was

not legally bound (see Section 191, Indian Penal Code) to state the truth before the District Judge in that enquiry and as the proceeding before the

District Judge was not a ""judicial proceeding"" within the first paragraph of Section 193. This latter contention, however, cannot wholly absolve the

petitioner from punishment as the giving of false evidence, though it was not done in a judicial proceeding is also punishable under the second

paragraph of Section 193, Indian Penal Code. However, proceedings u/s 476, Criminal Procedure Code can be taken only where the offence is

committed or is brought to the notice of the Court in a ""judicial proceeding.

It is, no doubt, a very startling proposition that though every body is morally bound to state the truth, he may not in certain cases be legally

bound to state the truth even after an oath or solemn affirmation has been administered to him by a court which honestly believes itself to have

jurisdiction to conduct certain proceedings in which that man is a witness and when the person giving evidence (or for whom the evidence is given,

if he is not the person giving evidence) has not objected to the jurisdiction of the Court to take the evidence.

It has been held that where a court had no power to put a particular person upon oath, (say an accused person) he was not legally bound by the

oath and therefore cannot be punished for giving false evidence. This seems clearly equitable see Kotha Subba Chetty v. Queen ILR (1883) M.

252, and Queen Empress v. Subbayya ILR (1889) M. 451.

It was held in Queen Empress v. Bharma ILR (1886) B. 702, that where the court had no power to enter upon an enquiry at all, the

proceedings in that enquiry are not judicial proceedings and a witness in that enquiry, though solemnly affirmed, was not legally bound to state the

truth. The same view was taken in 1891 by Muthusami Aiyar, J. in the case reported in 1 weir 151. See also Queen Empress v. Hanumantha

Reddi ILR (1899) M. 223, and Emperor v. Abdul Rahiman ILR (1909) A. 30. I might be permitted to express my regret that the highly technical

view that a person is not legally bound to state the truth before a court of justice which has bound, him by an oath or solemn affirmation when that

court of justice had no jurisdiction to enter upon the enquiry though it honestly believed itself to have such power and though no objection had been

taken to its jurisdiction has been adopted by the Indian High Courts following the English Cases on this point. See The Queen v. Pearce (1833) 32

L.J. 75 where Cockburn, C.J., says when quashing the conviction for perjury ""I regret that a man who has been convicted upon the merits, should

escape from punishment upon a technical point of this sort, but we administer the law according to the established rules."" I might be further

permitted to express a hope that an explanation may be added to Sections 191 and 193, Indian Penal Code to the effect that a person is legally

bound in a court of justice as witness in any enquiry to state the truth and that such an enquiry is one in a judicial proceeding even if the court had

no jurisdiction to enter upon the enquiry, provided (1) that the enquiry was not into an offence alleged to have been committed by the witness, (2)

that the Court honestly believed that it had jurisdiction and (3) that an objection (to the inquiry or to the examination of the witness therein) on the

ground of jurisdiction had not been brought to the notice of the court before the evidence was taken.

In the result, I feel myself bound to set aside the proceedings u/s 476, Criminal Procedure Code owing to the District Judge''s want of

jurisdiction to enter upon the enquiry under the Legal Practitioners Act.