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Judgment
Arunachalam, J.—The Nilgiris Bar Association, represented by its President, feeling ostensibly aggrieved, at the second Respondent having been released u/s 4(l) of the Probation of Offenders Act, by Judicial First Class Magistrate, Uthagamandalam, after finding him guilty under Sections 419 and 420, Indian Penal Code. (three counts) in C.C. No. 21 of 1986 on his file, has chosen to prefer this criminal revision case, pleading for enhancement of sentence imposed on the second Respondent, on the sole ground of maintaining the dignity and nobility of the legal profession which, to a great extent, stood affected in the Uthagamandalam area, due to the j unbecoming conduct of the second Respondent, who, without obtaining a law degree or having enrolled himself as a member of the legal profession, had not only chosen to practice as an Advocate in that locality, but also had the courage and temerity to get himself elected as Secretary of the Nilgiris Bar Association.
Before scrutinising the acceptability of the plea made by the Nilgiris Bar Association, for imposition of a sentence on the second Respondent, it will be necessary to narrate the facts, which led to his prosecution.
On 22.4.1978, second Respondent enlisted himself, as a member of the Nilgiris Bar Association, without possessing the minimum requirement of a degree in law. Armed with the membership of the Nilgiris Bar Association, certainly not obtained on the basis of legitimacy, second Respondent commenced practicing as an Advocate and collected for his services, remuneration from his clients, three of whom atleast had deposed, during investigation by the first Respondent, that the second Respondent had obtained fees for his services from them, during the period between 31.5.1982 and 12.3.1984. Merely because only three of such clients of the second Respondent, who posed himself as a lawyer, were examined during investigation, it cannot certainly be concluded that the activities of the second Respondent, as member of the Bar, were restricted only to those three persons for, if one were to take note of, the period between 22.4.1978 and 12.3.1984, second Respondent must have engaged himself in such nefarious activities, for approximately six years. of course, before convicting an accused for cheating, strict proof, of commission of offence alleged must be brought on record and the Court must be satisfied that the concerned accused was guilty of cheating without any pale of doubt. It makes no difference if there is only one Court of cheating or hundred counts of cheating, for, the fact remains that the second Respondent, posing himself as a lawyer, without any legitimacy, due to lack of qualification as a lawyer, had chosen to dupe the litigant public as though he was an accredited professional and was justified in taking up their causes. It appears rather unfortunate, that the evil mischief committed by the second Respondent could be brought to the notice of the investigating agency, only in the beginning of 1985, before which time, one can easily imagine, the damage that stood caused to the legal profession, whose reputation from time immemorial is one of nobility and dignity. Throughout, the legal fraternity, has attempted to maintain its reputation unsullied and whenever certain deflections to its dignity stood noticed, the Bar, as a whole, through its units, had never hesitated to erase such dents and damages, by resorting to suitable action, so that the glory of the legal fraternity could remain every high in its revered position.
The second Respondent, who appears to have understood, the gravity of the crime committed by him, either by himself or through the advice obtained by him, had correctly bowed down to the majesty of the legal institution and, without a demur, accepted before the Judicial Magistrate, Ulhagamandalam, that he was guilty of the charges. While doing so, he placed for the consideration of the learned Magistrate, that he had since passed in several papers in his law degree examination, though certain other papers, to get his degree in full, had to be answered in the examinations to be conducted. He pleaded for benevolent treatment on the ground that he was married and was also the father of two children. He placed for court''s consideration, his embedded anxiety and eagerness to practice as a lawyer, from his younger days, which led to his committing a mistake, a grave mistake, at that, by posing as a lawyer and undertaking briefs and appearing as well before courts, on that false foundation as a I lawyer.
Learned Magistrate, who was apparently satisfied that the second Respondent was really repentant for his past conduct, deemed it necessary to call for a report from the Probation Officer concerned, before sentencing the second Respondent on his admission of guilt, of having practiced as a lawyer, by indulging in deceit. The Probation Officer, after a detailed enquiry, forwarded a report to the Magistrate, wherein he had mentioned that the heredity of the second Respondent was good and he was never in bad company at any point of time. The Probation Officer has further staled in his report, that the second Respondent was a timid person and he was responsibly maintaining his wife and children. The enquiry of the Probation Officer revealed that the second Respondent had not bad antecedents and due to unfathomable eagerness to practice as a lawyer, without gauging the after effects of such illegal conduct, he had chosen to indulge in all that he had done, as though he was an accredited lawyer.
Learned Magistrate was satisfied on the basis of the report of the Probation Officer, that the second Respondent could be given a chance to reform himself and consequently he directed release of the second Respondent on probation of good conduct, on his executing a bond for Rs. 5000/- with two sureties each for a like sum, to keep peace and be of good behaviour for a period of one year and to appear and receive sentence when called upon during such period. Learned Magistrate further deemed it expedient to keep the second Respondent under the supervision of the concerned Probation Officer, for the bond period.
The judgment of the learned Magistrate was delivered on 20.3.1986 and it was brought to my notice by Mr. M. Ravindran, learned senior counsel, representing the second Respondent, that in pursuance to this judgment, the second Respondent executed bonds and was also kept under the supervision of the Probation Officer concerned for the period mentioned in the judgment and the said period had expired obviously by efflux of time.
Petitioner, namely the Nilgiris Bar Association, is aggrieved at the leniency shown to the second Respondent, when the offences committed by him were not only grave but also tended to tarnish the image of the noble profession. It is possible to comprehend, the genuine anxiety of the Nilgiris Bar Association in having taken steps, to have a deterrent sentence imposed on the second Respondent for, on a false representation, that he had passed the Law Examination and had also enrolled himself as an Advocate in Karnataka State Bar Council, he had duped them beyond repair and the only way to have the flags of the Nilgiris Bar Association fly high in its reputation, was bring the serious harm, he had caused to the notice of this Court, for, according to them, the maxim that justice should not only be done, but also must appear to be done cannot be allowed to be made a dead letter.
Approximately ten years after the judgment was pronounced, by the learned Magistrate, this criminal revision case, preferred by the Nilgiris Bar Association, has come up for final disposal. If only this Criminal Revision Case had come up for final disposal, soon after the learned Magistrate had rendered his verdict, it would have been possible for this Court, to assess the need to enhance the punishment meted out to the second Respondent for, then in that locality, the illegal acts committed by the second Respondent would still have been fresh and relevant and the litigant public would not have forgotten his nefarious activities.
Now there is no dispute, that after obtaining a Law Degree, second Respondent, had himself enrolled as an Advocate before the Karnataka State Bar Council on 1.12.1988. He then had his roll transferred to the Bar Council of Tamilnadu, which, in its turn, entered his name on its rolls, on and from 8.7.1994. It was also represented that subsequent to this prosecution and before 1.12.1988, the second Respondent did not practice in Ootacamund area.
There cannot be a discordant note, that the second Respondent had caused very great damage to the nobility and dignity of the system of administration of justice. It has always been held, that the Bench and the Bar act in their respective fields, to uphold the cherished traditions of the legal fraternity, and if a member of the Bar chooses to dupe not only the litigant public but also the courts, as though he was legitimately entitled to practice as an Advocate, he will have to necessarily face the consequences, that arise out of such unbecoming conduct.
When this Court, was auditing the need or otherwise, for imposing a sentence of imprisonment or fine, on the second Respondent, Mr. C. Rajan learned Counsel appearing on behalf of the Nilgiris Bar Association, submitted that the conduct of the second Respondent is still clouded, for, he has been shown as one of the accused in Cr. No. 903/93 registered by Ootacamund Town Police Station, for offences punishable u/s 420 I.PC. and Sections 4 and 5 of the Prize Chit and Money Circulation Scheme (Banning Act, 1978. The offences allegedly stood committed on 21.6.1993, 23.6.1993 and 30.6.1993, regarding which the first information report was registered on 2.7.1993. Apart from the second Respondent, one more Advocate has also been shown as an accused. Mr. M. Ravindran, learned senior counsel representing the second Respondent, submitted, on obtaining instructions from his client, that this crime stood referred as ''mistake of fact''. To be certain, about the manner in which the crime stood disposed of, I directed the learned Public Prosecutor to find out, if the said crime had already been closed. After enquiry from the police department, Mr. R. Shanmughasundaram, learned Public Prosecutor, represented, that though the Assistant Public Prosecutor, in charge of the prosecution, had offered his opinion that the crime should be referred as ''mistake of fact'', the Superintendent of Police concerned was unable to accept the said opinion, and had requested his higher authorities to reconsider the scope for proceeding further with the investigation of this crime. It appears, that on and from 19.6.1996, the prosecuting agency, on receipt of positive signals, had further investigated the crime and is likely to lay a final report before the concerned Magistrate, within a short period. When these facts, came within the awareness of second Respondent''s learned Counsel he referred to the notice issued by the second Respondent, on behalf of the first accused in Cr. No. 903/93, on 22.5.1993, wherein he has mentioned that steps have been taken against the Inspector of Police, Ootacamund, the addressee by preferring complaints to the Superintendent of Police, Ootacamund and Deputy Inspector General of Police, Coimbatore for the unwanted and illegal allegations made against his client, by the said police officer. Mr. M. Ravindran, learned senior counsel, was anxious to suggest, that the tenor or this notice, had probably irked the Inspector of Police, Ootacamund, leading to repercussion, of a crime being registered, against the second Respondent. He underlined, that in the instant case, he had pleaded guilty and surrendered himself before court, pleading for mercy, for the offences allegedly committed by him and in that background, he could not have had the courage to commit further offences.
Of course, if the second Respondent is involved in Cr. No. 903/93, law will have to take its course, on the basis of investigation in the crime registered. Seven years after the learned Magistrate had pronounced his judgment, it may be difficult at this stage, to logically conclude, that the second Respondent is still in the clutches of his part nefarious habit for, prima facie, two different authorities have two different views to offer, on the sustainability of a prosecution, though, of course, ultimately it will be for the courts to decide about the guilt or otherwise of the second Respondent and the other accused, implicated with him.
A perusal of the first information report in Cr. No. 903/93 indicates, that the second Respondent is a friend-cum -counsel of the first accused in that crime and it was on his behalf that he had issued a notice. It will be for courts to consider if, due to his friendship with the first accused in Cr. No. 903/93, the second Respondent had overstepped his limits, without caring for the dignity of the legal fraternity and got himself involved, in commission of any crime. I am not inclined to reverse the pattern, in which the teamed Magistrate had chosen to deal with the second Respondent, merely because of registration of a crime against him too, along with others, which, even after three years, is yet to ripen into a final report. May be there is some substance in the plea made on behalf of the second Respondent, that attempts were being made to make him a scope goat or may be that the second Respondent is still not free from the itch which clutched him in 1978 and continued at least till 1984.
The second Respondent has sworn to an affidavit, in which he has mentioned about, his admission of guilt before the Magistrate, in the instant case, and his having prayed for mercy. He has further added in his affidavit, that he never intended to do any harm to any one, by accepting briefs. Of course, that cannot be accepted without reservation, for, the harm caused to the litigants can be visualised, in that their causes stood dealt with by a totally unqualified person. Whatever it be, the affidavit further reads, that he was enrolled as an Advocate before the Karnataka Stale Bar Council on 1.12.1988 and on and from 8.7.1994 his name was listed on the rolls of the Tamil Nadu Bar Council, as well. While repenting for his past action, he has undertaken through this affidavit to maintain dignity, decorum and high traditions of the Bar and has further assured that he will not indulge in any unethical or unprofessional activities. I sec no reason, to doubt the sincerity of repentance. The second Respondent could have pleaded for sympathy before the Nilgiris Bar Association, within whose jurisdiction, he is still practicing as a lawyer, for his re-union with the Bar, after realistion of his grave misbehaviour, should have reigned topmost in his list of priorities. If only the second Respondent had expressed his repentance to the Nilgiris Bar Associations has been done before this Court, magnanimity of the Bar would have certainly exhibited itself and in all probability the Nilgiris Bar Association would have withdrawn this criminal revision case. It cannot be the intention of the Nilgiris Bar Association to punish the second Respondent for, that process will be within the exclusive jurisdiction of courts. Reformation rather than condemnation appears to be the object behind the benevolent provisions enunciated under the Probation of Offenders Act and brought into. the Code of Criminal Procedure, through Sections 360 and 361. The Object of reformation, though purposeful and expedient, cannot again be mechanically applied, on any strait-jacket formula, for, the nature of offence, character of the offender, his antecedents J and surrounding circumstances will have to play unimportant role in satisfying the Court that reclamation of the offender, on a given set of facts, was j not only advisable, but necessary as well. While commission of while collar offences, as they are termed, may still evade the probationary process, and extending of benevolence to them may probably be misplaced, in a case like the instant one, where the second Respondent had though it fit, and correctly too, to bow down before the learned Magistrate and accept his guilt, after giving out reasons for his extraneous activity, the approach made by the learned Magistrate to analyse the possibility, of releasing him on probation of good conduct, cannot be termed as a procedure either erroneous or not warranted by law. This beneficent legislation, is applicable to a first offender. While considering, application of this benevolent provision, a line of demarcation will have to be made, between dangerous criminals and weak characters, who surrender to temptation, through misfortune and bona fide realising later, the great harm caused by them, while in the process of crime commission. If, in the opinion of any court, a reclamation is possible, it will most often encourage supervision of the offender by the Probation Officer concerned, for, that will tend to be a safe-guarding shield in preventing the Offender from indulging in future criminal activity. By the process of releasing an offender under probation, the Court, in a way, encourages the sense of responsibility of the offender and saves his possible stigmatised future, as also prevents his condemnation in prison, in the company of confirmed offenders. A process to assess the offender, in deserving cases before sentencing him, must certainly attract the attention of courts and that is exactly the procedure adopted by the learned Magistrate in the instant prosecution. May be, yet another Court, in the given circumstances, may have dealt with the second Respondent in a different pattern, but that cannot be the yard-slick, for deciding the acceptability, of the manner in which, the second Respondent stood dealt with by the learned trial Magistrate. Even if two views are possible, on the process to be adopted, on satisfaction of acceptance of guilt, by an offender, the one beneficial to the offender must reverberate in the mind of the Court, for, reformation deserves priority and that has a great impact on the society too, for, that process helps the offender from getting deflected or becoming a confirmed criminal, in the jail company, of desperate criminals. Though it is possible to appreciate the anxiety of the Nilgiris Bar Association, to have its reputation restored, by cleansing itself from the dupe practiced by the second Respondent, now that the latter has repented bona fide for his past conduct, the revered nobility of the legal profession will certainly be enhanced, if the Nilgiris Bar Association chooses to forget the past, by permitting the second Respondent to be back on its rolls, certainly as a qualified Advocate and not as an interloper. The Nilgiris Bar Association must also be satisfied, that the second Respondent, has sincerity of purpose, for, he has voluntarily offered Rs. 15,000/-to the Nilgiris Bar Association, for purchase of books of its choice for the library, for it should not be reloaded with books, it already has on its racks, if he were to purchase books of his want, and offer it to the Library. Two drafts for Rs. 10,000/- and Rs. 5,000/- drawn in favour of the President, Nilgiris Bar Association on my direction, have been handed over by Mr. Ravindran, learned Senior Advocate, to Mr. G. Raj an, Petitioner''s learned Counsel, to be forwarded to the President of the Nilgiris Bar Association, for purchase of books intended for the Library, if the president of the Nilgiris Bar Association, in consultation with the other office bearers, deems it fit, that this sum could be utilised in a better pattern, for the benefit of the Bar, he will certainly be at liberty to do so.
While appreciating the stand taken by the Nilgiris Bar Association, to maintain purity in the profession, I am satisfied, that this is an apt case where the Petitioner has been rightly given an opportunity to reform himself and that such process of reform has commenced is evident from the conduct of the second Respondent, who has expressed his repentance in writing before this Court, apart from offering to the Nilgiris Bar Association, a decent sum of money as compensation for the harm he had caused, by his unbecoming conduct in the past.
Mr. M. Ravindran, learned senior counsel representing the second Respondent, brought to my notice certain observations made by a Division Bench of this Court, to which I was a party, in Rajendran and 23 others (suo moto contempt application) (1995 L.W. Crl. 723), for re-affirmation. Paragraphs 54 to 57 therein, in effect, reflect the thoughts I have expressed herein, and needless to add that such thoughts will always prevail in the minds of those interested in the dignity of the legal fraternity.
Subject to the observations aforestated, this criminal revision case shall stand dismissed.