Crl.OCP No. 10 of 1983 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.OCP No. 10 of 1983 Date of decision:24-9-2008 Court on its own motion Vs. M.L.Sharma CORAM:- HON'BLE MR. JUSTICE K.S.GAREWAL HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Shri D.S.Brar, Advocate, for the petitioner Shri R.S.Cheema, Senior Advocate, assisted by Shri Jasdev Singh, Advocate, for the contemner-respondent K.S.GAREWAL,J. Shri Madan Lal Sharma, Advocate, is the contemner before us to answer the contempt notice issued by the Hon’ble Single Judge on February 23, 1983. This case raises certain fundamental issues of legal ethics, an advocate’s duty towards his clients and how an advocate should deal with his clients’ money entrusted to him for legal expenses. The other question is whether it is criminal contempt of court (interfering in the administration of justice) if the advocate changes the date of the judgment in the certified copy to bring the appeal within limitation. Additional District Judge, Chandigarh, had decided a bunch of references under Section 18 of the Land Acquisition Act on January 4, Crl.OCP No. 10 of 1983 2 1980. The landowners Baljit Singh, Mokam Singh and Thath Singh were naturally interested in filing appeals before the High Court to challenge the award. R.F.As 658, 659 and 660 of 1982 were filed by them on December 16, 1981, through Shri Madan Lal Sharma, Advocate. Subsequently, applications for condonation of delay under Section 5 of the Limitation Act were filed in these appeals by Shri Ravinder Seth, Advocate, who superseded Shri Madan Lal Sharma, Advocate. The above applications came up before the Hon’ble Single Judge on August 31, 1982 and it was found that the dates on the certified copies of the judgments supplied by the Additional District Judge had been tampered with, obviously to bring the appeals within the period of limitation. It is this act of tampering with the certified copies that is the subject matter of these proceedings. The Hon’ble Single Judge on August 31, 1982 ordered District Judge (Vigilance), Haryana to hold an inquiry to find out the dates on which applications for copies had been filed, the dates when the copies were prepared and supplied. There was a further direction that in case the District Judge came to the conclusion that there was tampering with the dates, he would not hesitate to get a criminal case registered. The conclusion reached by District Judge (Vigilance), Haryana in his report dated January 31, 1983 is as under:- “ Shri M.L..Sharma by filing the three R.F.As with tampered certified copies had attempted to beguile the Court thereby obstructing the interest of justice” …………. “there is no indication that Shri M.L.Sharma was instrumental in effecting material alteration, but there is sufficient material to show that Crl.OCP No. 10 of 1983 3 he has been a privy to it and therefore, liable for the abatement (sic) of the criminal offence committed by Shri D.S.Sadnhu, Advocate. Shri M.L.Sharma has to reply to the charges of abatement(sic), namely under Sections 193/196/465/471 read with Section 109 I.P.C.”…………… “It is prima facie clear that Shri M.L.Sharma, Advocate had tried to overreach and mislead the Court. His action has caused obstruction to the interest of justice and amounts to contempt of Court as well.” The learned District Judge Vigilance also concluded that: “tampering of dates in the certified copies had been effected in a very crude manner which is apparent to the naked eye.” Shri Madan Lal Sharma’s explanation in his affidavit dated May 13, 1983 was that it had all been done by Shri D.S. Sandhu, Advocate, to whom payments had been made by the appellants for filing R.F.As. It was Sh. Sandhu who had intentionally tampered with the documents. Shri Madan Lal Sharma also offered an unqualified apology. On May 13, 1983 Hon’ble Single Judge was of the view that it would be proper to await the outcome of the criminal proceedings and the contempt petition was adjourned. On September 17, 1984 the Hon'ble Division Bench, after referring to Court’s order dated May 13, 1983, adjourned the contempt petition sine die to await the outcome of the criminal proceedings. The matter was again placed before the Hon'ble Division Bench on March 17, 2006 but it was yet again adjourned sine die as the criminal proceedings were still pending. However, when the matter was placed before the Hon'ble Crl.OCP No. 10 of 1983 4 Division Bench on February 28, 2008, the learned counsel for Shri Madan Lal Sharma took time to file a fresh affidavit. Through Criminal Miscellaneous 37620 of 2008, filed under Section 482 Cr.P.C., certain subsequent events have been brought on the record alongwith an additional affidavit of Shri Madan Lal Sharma, Advocate. In his affidavit dated July 17, 2008 reference has been made to the observations of District Judge (Vigilance). Furthermore, all the persons concerned with the case, namely, Shri D.S.Sandhu, Advocate, who was held responsible for forgery; Shri Ravinder Seth, Advocate who had represented the appellants after superseding the contemner; the three appellants, were all dead. It was further stated that the criminal prosecution instituted against the contemner had been continuing for 25 years but had still not been concluded. The learned Senior Counsel appearing for Shri Madan Lal Sharma, Advocate, has pleaded for discharge of the rule on the ground that the main act of forgery was committed by Shri D.S.Sandhu, as found by the District Judge, and not by Shri Sharma. The stage is now set for revisiting the primary facts of the case in order to determine whether Shri M.L.Sharma, Advocate, was responsible for interfering in the administration of justice and guilty of criminal contempt. A person who interferes or tends to interfere with, or obstructs or tends to obstruct administration of justice in any manner is guilty of criminal contempt of Court as defined in Section 2 ( c ) (iii) (a) and (b) of the Contempt of Courts Act, 1971. This case relates to filing of three appeals on the basis of certified copies in which dates were changed to bring the appeals within Crl.OCP No. 10 of 1983 5 limitation. Therefore, the version presented by the appellants in the appeals is of great importance. The appellants’ version is contained in their application under Section 5 of the Limitation Act Civil Misc. No. 745/C-1 of 1982 in R.F.A.No. 658 of 1982. It is stated therein that the awards were given on January 4 and 20, 1980. Shri D.S.Sandhu had approached the appellants stating that he will file appeals in the High Court through Shri Sharma and asked the appellants to give him money and engage him for the purpose of the first appeals. Shri Sandhu contacted illiterate villagers and started collecting money. He assured them that he will get certified copies of the orders and file the appeals. He also assured the parties that in case the appeals were not successful he will file Letters Patent Appeals. He demanded fees for the Letters Patent Appeals as well. Money for court fees for filing R.F.As as well expenses for getting certified copies and lawyer’s fees were handed over on January 20, 1980 in respect of one award . Thereafter another award was made on March 19, 1980 and a week a later Shri D.S.Sandhu collected court fees and counsel fees from different clients including the appellants. The appellants kept contacting Shri Sandhu who kept assuring them that certified copies had not become available, the moment the same were available he will purchase the court fees and get the appeals filed before the High Court through Shri Madan Lal Sharma Advocate, who was his friend. The appellants kept inquiring from Shri Sandhu but got no reply. Ultimately there was an altercation between the appellants and Shri Sandhu. A large number of people assembled in the village. Shri Sandhu told the appellants that he had actually engaged Shri Madan Lal Sharma for filing Crl.OCP No. 10 of 1983 6 the appeals and they should contact him. Appellants approached Shri Madan Lal Sharma who would neither confirm nor deny the facts as to whether any appeals had been filed or not. In the meantime, appeals filed by other land owners whose lands were adjacent to the appellants' land were decided. The appellants again approached Shri Sandhu who guided them to meet Shri Madan Lal Sharma but nothing was confirmed or denied by him. The appellants kept on shuttling between Shri Sandhu and Shri Madan Lal Sharma. Every time they were given the hope that the appeals were pending. An appeal of other appellants was decided on December 9, 1981. At this stage the appellants were convinced that their appeals had not been filed. They again approached Mr. Sandhu and in January 1982 they approached Shri Madan Lal Sharma who told them that the appeals had been filed and will be decided in due time. Shri Madan Lal Sharma also showed them a copy of the Regular First Appeal which was lying with him. The appellants came to know that all appeals pertaining to lands in their village Burail stood decided. When they approached Shri Madan Lal Sharma to know the reason for the delay in the decision of their appeals, he told them to approach Shri D.S. Sandhu and not to bother him, as the papers had not been handed over to him by the appellants but by Shri Sandhu. The appellants enquired in the High Court and learnt that only one appeal was filed by Shri Madan Lal Sharma on December 16, 1981 and had been returned due to some objections, which was refiled on May 31, 1982. On enquiry from the office the appellants came to know that the copy which was attached with the appeal was applied very late, there were some cuttings and the appeal was ultimately ordered to be returned. Crl.OCP No. 10 of 1983 7 When the appellants approached Shri Madan Lal Sharma, he point blank refused to do anything in the matter and said that he had filed the appeal at the instance of Shri Sandhu, on the basis of the papers supplied by Shri Sandhu. The appellants stated in their above-mentioned application that they were illiterate villagers and had been duped by Shri D.S.Sandhu, Advocate who took huge amounts to file appeals but never applied for certified copies in time and ultimately to cover his deficiency he fabricated the copy to overcome the objection of limitation. District Judge (Vigilance) examined Shri D.S.Sandhu as a witness. Shri Sandhu admitted that there had been tampering of the dates on the copies but he threw the blame on Shri Madan Lal Sharma to whom he had handed over the certified copies for filing appeals. The three appellants, Baljit Singh, Mokam Singh and Thath Singh, were also examined as witnesses. They stated that they had paid Rs.9,000/-, Rs. 6100/- and Rs. 14,000/-, respectively, to Shri Sandhu within a few days of the pronouncement of the award by the Additional District Judge, for the purpose of filing the appeals. When Shri Sandhu was asked regarding payment of fees, he admitted having received Rs.6100/- from Mokam Singh for filing two appeals but he did not admit the receipt of payment from Baljit Singh stating that Baljit Singh had made the payment to Shri Madan Lal Sharma. Shri D.S. Sandhu admitted having received Rs.14,000/- from Thath Singh and further admitted that he had paid some amount to Shri Madan Lal Sharma and returned Rs.4500/- to Thath Singh. When Shri Madan Lal Sharma was examined by the District Judge he admitted the fabrication and stated that the appeals had been filed Crl.OCP No. 10 of 1983 8 on the basis of the certified copies which were attached with three R.F.As. Shri Ravinder Seth, Advocate, when examined put the blame on Shri D.S.Sandhu but denied that Shri Madan Lal Sharma had ever admitted before him that the dates have been tampered with. More than a quarter century later, the principal witnesses are all dead, Shri Madan Lal Sharma stands alone to answer the contempt charge. The relationship between a lawyer and a client is a fiduciary relationship of confidence and trust. The client reposes confidence, good faith and trust in his lawyer and seeks his advice and protection in his litigation. Being in fiduciary relationship, the lawyer is expected to exercise a very high standard of care. He is expected to be loyal to his client and no gain or profit from his position as a fiduciary. A much higher standard of conduct is expected in a fiduciary relationship than what has been demonstrated by Shri Madan Lal Sharma, Advocate, in this case. The Bar Council of India Rules framed under Advocates’ Act, 1961 also lay down various duties that a advocate owes to his client. Very high standard of professional conduct has been imposed on advocates. Rules 25, 26 and 27 of Chapter II of Part VI are as under:- “25. An advocate should keep accounts of the client’s money entrusted to him, and the accounts should show the amounts received from the client or on his behalf, the expenses incurred for him and the debits made on account of fees with respective dates and all other necessary particulars. 26. Where moneys are received from or on account of a client, the entries in the accounts should contain a reference as to whether the Crl.OCP No. 10 of 1983 9 amounts have been received for fees or expenses and during the course of the proceedings, no advocates shall, except with the consent in writing of the client concerned, be at liberty to divert any portion of expenses towards fees. 27. Where any amount is received or given to him on behalf of his client, the fact of such receipt must be intimated to the client, as early as possible.” During the entire proceedings neither Shri D.S.Sandhu nor Shri Madan Lal Sharma, Advocates, presented statements of accounts of fees and expenses received by them from the appellants in the three appeals. They did not disclose the amount they had charged as professional fees and the amount of expenses incurred. American Bar Association has also framed Model Rules of Professional Conduct for Lawyers (http://www.abanet.org) We would like to refer to Rules of client-lawyer relationship, particularly Rule 1.15 regarding safekeeping property which is reproduced as under:- (a) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in a separate account maintained in the state where the lawyer’s office is situated, or elsewhere with the consent of the client or third person. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of (five years) after termination of the representation. (b) A lawyer may deposit the lawyer’s own funds in a client trust Crl.OCP No. 10 of 1983 10 account for the sole purpose of paying bank service charges on that account, but only in an amount necessary for that purpose. (c) A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance to be withdrawn by the lawyer only as fees are earned or expenses incurred. (d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full account regarding such property. (e) When in the course of representation a lawyer is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute. We have been constrained to somewhat extend our judgment to cover the subject of professional ethics of advocates. In the present case Shri Sandhu and Shri Madan Lal Sharma were together engaged by the appellants to file and pursue appeals against the awards of the Additional district judge. The appellants had parted with fees and expenses within a few weeks of the pronouncement of the awards but the appeals were not filed within time. When the appellants pursued the advocates for answers Crl.OCP No. 10 of 1983 11 they were put off on one pretext or the other, converted into footballs to be passed from one player to another, inspite of the fact that they had paid full fee and expenses in advance. We observed earlier and would like to again repeat that no separate account of fees and expenses was produced before Inquiry Officer by either Shri D.S.Sandhu or Shri Madan Lal Sharma. It was professional misconduct on their part, mixing their clients’ money with their own. Every advocate is expected to keep two accounts of the money received from his client, one in respect of his professional charges and the other in respect of expenses incurred or to be incurred. Court fee is a heavy expense which appellants must incur when they file appeals. It is obvious that in the present case court fee was given to the advocate, the amount was retained by them instead of being immediately used for depositing court fees. No explanation is forthcoming and indeed there is no explanation which can be offered for such misconduct. Coming to the question of tampering with judicial record by changing the date of the judgment to bring the appeal within time, we would like to confirm the findings given by the learned District Judge (Vigilance) that this was a case in which both Shri D.S.Sandhu and Shri Madan Lal Sharma had acted together. Shri D.S.Sandhu had done actual tampering but Shri Madan Lal Sharma had abetted the commission of the offence. There was sufficient material to show that he was privy to it. Furthermore, the appeals were filed through Shri Madan Lal Sharma on the basis of tampered certified copies. This amounted to commission of criminal contempt. Shri Madan Lal Sharma cannot escape liability by putting the entire blame on Shri Sandhu. It was his primary duty to first of all examine the certified copies to determine when the limitation expired. In the present Crl.OCP No. 10 of 1983 12 case it was clear from the certified copies that dates have been tampered with. Therefore, by using an obviously tampered copy, to file time barred appeals, Shri Madan Lal Sharma can not get off with a mere apology. It is 27 years since Shri Sandhu and Shri Madan Lal Sharma had committed the offending acts. They had done this to avoid the appeals from becoming barred by time although they had both been retained well within time. The appellants had engaged them a mere two weeks after the judgment was announced. It has also been established that they had both been paid their professional fees and expenses for the appeals, well in advance. The duo did not act in time, therefore, they had to do some thing to bring the appeal within time. They could have filed an application for condonation of delay, which applications are usually considered liberally and often granted. But they adopted an illegal and unethical course, after much harassment of their clients, who had to fruitlessly run around trying to find out the fate of their appeals. The connected appeals of their co-villagers had all been decided and the compensation enhanced. Shri Sandhu and Shri Madan Lal Sharma were members of an honourable profession. They were expected to act honourably, observe professional ethics and follow a high standard of probity and conduct. But what did they do. They tampered with the judgment in order to bring the appeal against the judgment within time. Shri Sandhu was found by District Judge (Vigilance) to have committed the actual offence. Shri Madan Lal Sharma was his accomplice. This too was found by the District Judge. No Court can countenance contumacious conduct of the type Shri Sharma has been found guilty of. Crl.OCP No. 10 of 1983 13 Shri Sandhu and Shri Madan Lal Sharma also inextricably mixed their clients money, meant for court fees and miscellaneous legal expenses, with their own funds. They were entitled to their professional fees but not to the expenses to be incurred in the litigation. Retention of their clients money over a long period without utilizing it for the purpose they had received it as agents and trustees is defalcation, and very serious professional misconduct. Criminal prosecution was launched against them but has not been taken to its lawful conclusion despite specific orders of the Supreme Court passed on January 5, 2001 in SLP 1192 of 2000 entitled Madan Lal Sharma Vs. Punjab & Haryana High Court. This has also been reflected in the affidavit dated July 17, 2008. Course of law in the present case seems to have led nowhere. Contempt proceedings were adjourned sine die to await the decision of the criminal case, but these proceedings must now be brought to an end. Shri Sandhu is dead, the appellants too are dead, their lawyer Sh. Ravinder Seth is also no more. And Shri Madan Lal Sharma has tendered an apology. The question to be considered by us is whether Sharma should be left off with an apology or held guilty of criminal contempt and awarded condign punishment. Shri Madan Lal Sharma has a lot to answer, particularly when he is the only survivor. Shri Sharma was to ensure proper attestation of documents which he was filing. This was his professional duty. Indeed Shri Sharma owed a duty to the Court and a duty to the client both of which he breached. Speaking of professional duties of advocates who represent Crl.OCP No. 10 of 1983 14 landowners in land acquisition proceedings, solicit work and settle contingent fees Hon'ble Mr. Justice R.C.Lahoti, Chief Justice has observed in Rajendra V. Pai Vs. Alex Fernandes (2002) 4 SCC212 : AIR 2002 SC 1808 as under:- “No doubt probity and high standards of ethics and morality in professional career, particularly of an advocate, must be maintained and cases of proved professional misconduct severally dealt with.....” In State of Punjab Vs. Shiv Ram (2005) 7 SCC 1 : AIR 2005 SC 3280, speaking of professional ethics of doctors, Hon'ble Mr. Justice R.C.Lahoti, Chief Justice had emphasized the need for self regulation and observed as under:- “Inherent in the concept of any profession is a code of conduct, containing basic ethics that underline the moral values that govern professional practice and is aimed at upholding its dignity.............. It cannot be denied that black sheep have entered the profession and that the profession has been unable to isolate them effectively. The need for external regulation to supplement professional self-regulation is constantly growing....” Mens rea is not an essential ingredient for proving criminal contempt. The Supreme Court in D.C.Saxena Vs. Hon'ble The Chief Justice of India (1996) 5 SCC 216 : AIR 1996 SC 2481 laid down as under:- “What is relevant is that the offending or affront act produces interference with or tendency to interfere with the course of justice. What is material is the effect or the tendency of the act, Crl.OCP No. 10 of 1983 15 conduct or the publication of the words, written, spoken or by signs visible representation or otherwise and whether it scandalises or tends to scandalise or lowers or tends to lower the authority of the Court or prejudice or tends to prejudice or interfere with or obstruct the administration of justice in