Full Judgment Text
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PETITIONER:
NILGIRIS BAR ASSOCIATION
Vs.
RESPONDENT:
TK MAHALINGAM AND ANOTHER
DATE OF JUDGMENT: 08/12/1997
BENCH:
M.K. MUKHERJEE, K.T. THOMAS
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
Thomas, J.
Nilgiris Bar Association (Tamil Nadu) is in no mood to
reconcile with the easy escape made by an imposter in the
legal profession from the penal clutches of law. Without
enrollment with any Bar Council and without any academic
qualification to practise law he manage to get entry into
the legal profession by wangling a membership from the
Nilgiris Bar Association, and flourished in his practice as
an advocate before all the courts including session courts
in the district for a long period of eight years. But his
hay days did not last longer as the vigilant Bar discovered
that he was an interloper in the profession. A complaint was
lodged with the police and after investigation a charge-
sheet was laid before the Judicial Magistrate concerned. He
then adopted a strategy to skip out of the penal tentacles
by pleading guilty to the charge and praying for mercy of
the Court. The strategy worked as the magistrate released
him under Section 4 of the Probation of Offenders Act 1958
(for short ‘the Act’)
The concerned Bar Association aggrieved by the manner
in which they and the litigant public were hood-winked by
the said person for a pretty long period, approached the
High Court of Madras in revision challenging the order of
the magistrate. A single judge of the High Court, after
about ten years, passed the impugned order declining to
interfere, but made an endeavour to console the Bar by
directing the delinquent person to donate a sum of Rs.
15,000/- to the Association for buying books to their
library. The accused person promptly dispatched a bank draft
containing the amount to the Bar Association but they with
matching promptness spurned down the ill-gotten money and
rushed to this Court with the Special Leave Petition seeking
redressal of their grievances. Special leave granted.
A few more facts may be necessary. Respondent (TK
Mahalingam) approached the Nilgiris Bar Association in the
year 1978 for admitting him as a member therein by
representing that he was a qualified legal practitioner
having enrolled himself with the State Bar Council. Without
suspecting the bona fides of the application he was admitted
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to the membership of the Bar Association.
He started his practice at the new station and built up
a good clientele and involved himself in all the activities
of the Association. He contested for the post of Secretary
and won it. In this way, he continued till 1985. But by then
some members of the Bar who developed suspicion of his
credential made secret inquiries and discovered that he was
imposturing as an advocate and his credentials were bogus.
So they brought it to the notice of the Bar Association who,
in an emergent meeting, decided to launch prosecution
against him. Respondent, sensing the developments against
him ducked out of the scene. A complaint was filed with the
local police for offences of false personation and cheating
etc. The police, after investigation, charge-sheeted the
case of for offences under Sections 419 and 420 of the
Indian Penal Code.
Learned single Judge of the Court, while disposing of
the revision, expressed appreciation for the stand adopted
by the Bar and praised their alacrity and perseverance for
restoring the reputation of that Bar "by cleansing itself
from the dupe practised by the respondent." However, learned
single judge advised the Bar to forget the past and
conveyed his view that if such an act of magnanimity was
shown, then "the revered nobility of the legal profession
will certainly be enhanced". After administering the said
advise learned single judge made the following observations:
"While appreciating the stand takne
by the Nilgiris Bar Association,
’to maintain purity in the
procession,’ 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 a compensation for the harm he
had caused, by his unbecoming
conduct in the past."
We find considerable force in the submission of the
appellant Bar Association that if they had conveniently
forgotten the conduct of the respondent after receiving some
pittance from a bogus practitioner the revered nobility of
the legal profession would not have enhanced, instead it
would only have further tarnished their image and lowered
them further in the estimation of the public. We cannot,
therefore, persuade ourselves to approve the advise tendered
by the learned single judge to the appellant-Bar Association
and to ignore the serious impairment inflicted by the
respondent who cheated the seats of justice as well as the
litigant public continuously for a long period of eight
years.
Learned single judge seemed to have been persuaded by
two subsequent developments as for the respondent. One is
that the respondent joined a course of law education later
and passed a law a degree in year 1988 and got himself as an
advocate in the Karnataka State Bar Council. Second is that
respondent expressed repentance over his conduct and has
since been conducting properly.
Appellant disputed the above two premises, and
according to them even the law degree which respondent
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claims to have obtained later is shrouded in doubtful
authenticity as the same was managed from an institution
which "issues law degrees without attendance in violation of
the Bar Council of India Rules (para iv) regarding legal
education." Appellant further submitted that respondent was
subsequently involved in a criminal case for assaulting an
advocate in open court. Of course, these two allegations
have been repudiated by the respondent. Even otherwise we do
not think it necessary to go into the correctness of the
claim of the respondent regarding the subsequent conduct nor
the stand adopted by the appellant-Bar Association on it.
They are not germane for consideration on the question
whether respondent should have been allowed to enjoy the
benefits of the ameliorative reliefs provided in that Act.
Section 4 of the Act empowers of the Court to release
the convicted person on his entering into a bond when the
person is found quilty of having committed an offence not
punishable death or imprisonment for life. But the provision
is saddled with certain conditions for invoking the reliefs
thereunder. Sub-section (1) of Section 4 reads thus:
"When any person is found guilty of
having committed an offence not
punishable with death or
imprisonment for life and the Court
by which the person is found guilty
is one opinion that, having regard
to the circumstances of the case
including the nature of the offence
and the character of the offender,
it is expedient to release him on
probation of good conduct, then
notwithstanding anything contained
in any other law for the time being
in force, the court may, instead of
sentencing him at once to any
punishment, direct that he be
released on his entering into a
bond, with or without sureties, to
appear and receive sentence when
called upon during such period not
exceeding three years, as the court
may direct, and in the meantime to
keep the peace and be of good
behaviour."
By the words so couched in the sub-section Parliament
has taken care to emphasize that before the relief
(envisaged in the provision) is granted court must take into
account the circumstances of the case, among which "the
nature of the offence and the character of the offender"
must have overriding considerations. After bestowing
judicial consideration on those factors, the court must form
an opinion as to whether it would be appropriate in that
case to release the particular accused therein as envisaged
in the sub-section. This Court has observed time and again
through decisions that the benefits mentioned in Sections 3
and 4 are subject to the limitations laid down in those
provisos and that the word ’may’ in Sections 4 of the Act is
not be understood as ‘must’ in Section 4 of the Act is not
be understood as ‘must’ in Section 4 of the Act is not be
understood as ‘must." Ramji Missar vs. State of Bihar: AIR
1963 SC 1088; Rattan Lal vs. State of Punjab; 1964 (7) SCR
676 Isher Das vs. State of Punjab : AIR 1972 SC 1295; Ram
Parkash vs. State of Himachal Pradesh: AIR 1973 SC 780.
When considering the nature of the offence the court
must have a realistic view on the gravity of the offence,
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the impact which the offence could have had on the victims
and whether considerations of deterrence can be overlooked
etc. No fixed yard-stick can be laid down to measure the
nature of the offence for affording or denying the relies
envisaged in Section 4 of the Act. However, as the court is
enjoined to take into consideration the character of the
offender it is well to remember that character is not the
abstract opinion in which the offender is held by others.
The word "character" si not defined in the Act. Hence, it
must be given the ordinary meaning. According to Webster’s
New International Dictionary "character" means "an
attribute, or quality especially a trait or characteristics
which serves as an index to the essential or intrinsic
nature of a person". In Black’s Law Dictionary "character"
is defined as "the aggregate of the moral qualities which
belong to and distinguish an individual person; the general
result of the one’s distinguished attributes". The
celebrated lexicographer has at the same time pointed out
the following aspects also about the subject:
"Although character and reputation
are often used synonymously, the
terms are distinguishable.
‘Character’s is what a man is,
‘reputation’ is what he is supposed
to be in what people say he is,
‘Character’ depends on attributes
possessed and ‘reputation’ on
attributes which others believe one
to possess. The former signifies
reality and the latter merely what
is accepted to be reality at
present."
Character of the offender in this case reflects in the
modality in which he was inveigling in a noble profession
duping everybody concerned. In such a view of the matter the
two courts could not have formed an opinion in favour of the
character of the respondent. It is apposite to observe here
that learned single judge did not mention anything about the
character of the respondent qua the accusations found
against him.
While advertising to the nature of the offence we bear
in mind the necessity to weed out imposters in the
profession which require special learning and training
particularly at a time when such imposters are proliferating
in the society. Any leniency shown to such wiles would
certainly tend to sprout up weeds at meaning scales. The
case of the respondent is not one of single lapse or even
multiple delinquencies confined to a few days. The long
period of 8 years during which the moun-te-bank had
successfully indulged in interloping as a qualified and
learned counsel would have considerably eroded public
confidence in the probity of the legal profession
particularly in that area and besmirched the reputation of
that Bar as the public might be looking upon every other
member of the profession with suspectful eyes. The trial
magistrate and the learned single judge, who found a
repenting mind in the respondent, have failed to notice that
repentance had dawned on him, even if that also was not a
pretension, only when he reached a cul-de-sac. When he was
masquerading himself every day in sartorial costumes
prescribed only for accredited members of the legal
profession it did not occur to him even once during the long
period of eight years to think of repentance. On the
contrary, he was flourishing at large and had even become
the Secretary of the Bar Association. If the vigilant Bar
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has not discovered the trickery, perhaps he would still have
persisted in his art of cheating. For all these reasons we
are of the definite opinion that the crimes committed by him
should have been dealt with deterrently and the ameliorative
reliefs envisaged in Section 4 of the Act should been kept
at bay.
We, therefore set aside that part of the impugned
judgments by which respondent was released under Section 4
of the Act. For determining the measure of sentence to be
passed on him we are not against taking into account those
factors which the learned single judge has found as
mitigating grounds. Added to them is the long interval of
time between the date of his conviction by the trial court
and now. For all these, imprisonment for six months and a
fine would be sufficient to meet the ends of justice in this
case.
We, therefore sentence him to undergo rigorous
imprisonment for six months under each count (Section 419
and 420 IPC) and to pay a fine Rs. 5,000/- each (total
Rupees ten thousand). In default of payment of which he
shall undergo a further period of imprisonment for three
months. The fie, if collected, shall be added to the fund of
the Legal Service Board in the State of Tamil Nadu.
We direct the trial Magistrate (Judicial First Class
Magistrate, Udhagmandalam) to take necessary steps to put
the respondent in jail for undergoing the sentence imposed
on him. Appeal is allowed accordingly.