NILGIRIS BAR ASSOCIATION

T.K. MAHALINGAM AND ANR.

DECEMBER 8, 1997

[M.K. MUKHERJEE AND K.T. THOMAS, JJ.)

Probation of Offenders Act, 1958-Sectioll 4( 1 )-Relief to be given 011ly ill approp1iate cases and subject to the condition a11d restrictions provided there1111de1----l111personation by the responde11t as an advocate-Cheating the C seats of justice as well as the litigant public for eight long years-Effect of besmirching the reputation of tile Bar and making the public look upon every other member of the Bar with suspectful eyes-<)imes committed by him should have been dealt with dete1rently-Conside1ing the circumstances of the case, the nature of the offence and the character of the off ender, cowts not D justified in granting relief under section 4(1) of the Act-Sentence of six months R.I. and fine imposed.

The acceptance of compemation by the Bar Association from a bogus practitioner-Would not enhance the revered nobility of the legal prof ession--But would fwther tamish their image and lower them in the estimation E of the public.

Words and Phrases : 'Character' of the offendeeaning of-In the context of sub-section ( 1) of section 4 of the Probation of Off enders Act, 1958.

F In the year 1978, the respondent got himself enrolled as a member of the Nilgiris Bar Association by falsely representing himself to be a qualified legal practitioner enrolled with the State Bar Council. He established a flourishing practice which he continued until 1985. Some suspicious members of the Bar made secret inquiries which revealed that the G credentials of the respondent were bogus and that he had been imposturing as a lawyer and cheating both the courts and the litigants for eight long years.

The respondent was charge-sheeted for criminal offences under sections 419 & 420 of the Indian Penal Code. He pleaded guilty to the said H charges and prayed for mercy from the Court, whereupon the concerned 246

judicial magistrate released him under section 4 of the Probation of A Offenders Act 1958.

The Bar Association challenged the order of the magistrate in revision filed before the High Court of Madras. While appreciating the stand adopted by the Bar and praising their efforts to restore the reputa tion and credibility of the Bar by cleansing itself from the deception prac B ticed by the respondent, the High Court declined to interfere with the order of the Magistrate. Instead, as a consolation to the Bar, the High Court by the impugned order, directed the respondent to donate Rs.15,000 to the Bar Associa tion for purchase of Library books. The High Court advised the Bar to act magnanimously and accept the written repentance and offer of compensation C money by the respondent, which in his considered opinion, was evidence of his reformation. The High Court was of the view that such an act of magnanimity would enhance the revered nobility of the legal profession.

Partly allowing the appeal, this Court

HELD : 1. The crimes committed by the respondent should have been dealt with deterrently and the ameliorative reliefs envisaged under section 4 of the Probation of Offenders Act 1958 should have been kept at bay. The respondent is sentenced to rigorous imprisonment for six months and a

fine of Rs. 10,000 for the offences committed by him under Sections 419 & E

420 IPC. [253-E-F; 254-A]

1.1. The relief envisaged in sub-section (1) of Section 4 of the Proba tion of Offenders Act 1958 can be granted only in appropriate cases and subject to the conditions and limitations laid down in the said provision.

Although no fixed yardstick can be laid down to measure the nature of the F offence for affording or denying the said relief, the Court must take a realistic view of the gravity of the offence, the impact which the offence could have had on the victims and whether considerations of deterrence can be overlooked. (251-D; 252-B-D]

2. Mter taking into account the circumstances of the cae, among which "the nature of the offence and the character of the offender" must have overriding considerations, the Court must form its considered judi cial opinion as to whether it would be appropriate in that case to release the accused as envisaged in sub-section (1) of Section 4 of the Probation of

Offenders Act. (251-G-H; 252-A] H

A 2.1. The offence committed by the respondent is not one of a single

lapse or even multiple delinquencies confined to a few days. The respondent has successfully indulged in interloping as a c1ualified and learned _ counsel for eight long years and repentance dawned on him, even if that also was not a pretension, only when he reached a cul-de-sac. [253-B-D]

2.2. The character of the respondent reflects in the modality in which he was inveigling in a noble profession duping everybody concerned. In this view of the matter, the two Courts below could not have formed an opinion in favour of the character of the respondent. [252-G-H; 253-A]

3. 'Character' in the context of sub-section (1) of section 4 of the Act, is to be given the ordinary dictionary meaning which defines character as an attribute, quality especially a trait or characteristic which serves as an index to the essential or nntrinsic nature of a person. [252-D-EJ

Ramji Missar v. State of Bih01; AIR (1963) SC 1088; Rattan Lal v.

D State of Punjab, [1964] 7 SCR 676; !sher Das v. State of Punjab, AIR (1972)

SC 1295; Ram Parkash v. State of Himachal Pradesh, AIR (1973) SC 780, relied on.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1176 of 1997.

From the Judgment and Order dated 24.6.96 of the Madras High Court in C.R.R.C. No. 549 of 1993.

Ms: Indira Jaisingh, Sanjay Parikh, K. Anandakrishnan, V.A.

F Venkatachalam, M.J. Cherian, H.M. Raju and S.R. Setia for the Appel" !ants.

T.L. Vishwanatha Iyyer, K.B.S. Rajan, B. Jaya Singh, V.B. Bheeman and V.G. Pragasam for the Respondents.

The Judgment of the Court was delivered by .

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 managed H to get entry into the legal profession by wangling a membership from the

...

NILGIRIS BAR ASSOCIATION v. T.K. MAHALINGAM [TIIOMAS, J.] 249

Nilgiris Bar Association, and tlourished in his practice as an advocate A before all the Courts including Sessions 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 B 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 C 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 D 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 is granted.

A few more facts may be necessary. Respondent (T.K. 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 State Bar Council. Without suspecting F the bona fides of the application he was admitted 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 credentials made secret inquires and discovered that he was impos- G turing 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 H

A investigation, charge-sheeted the case for offences under Sections 419 and

420 of the Indian Penal Code.

Learned single judge of the High Court, while disposing of the revision, expressed appreciation for the stand adopted by the Bar. and praised their alacrity and perservance for restoring the reputation of that Bar "by cleaning 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 advice learned single judge made the following obser- C vations:

"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 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 le5al 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 advice 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 degree in the year 1988 and got himself enrolled as an advocate in the Karnataka Bar Council.

H Second is that respondent expressed repentance over his conduct and since

NILGIRIS BARASSOCIATIONv. T.K MAHALINGAM (THOMAS, J.] 251

been conducting properly.

Appellant disputed the above two premises, and according to them even the law degree which respondent 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 B 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- C 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 the Act.

Section 4 of the Act empowers the Court to release the convicted person on his entering into a bond when the person is found guilty of D having committed an offence not punishable with death or imprisonment for life. But the provision is saddled with certain conditions for invoking the reliefs thereunder. Subsection (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 E by which the person is found guilty is of the 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 F 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." G

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 H

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 various decisions that the benefits mentioned in Sections 3 and 4 are subject to the limitations laid down in those provisions and that the word 'may' in Section 4 of the Act is not to be understood as 'must'. Ramji Missar

v. state of Bihar, AIR (1963) SC 1088; Rattan Lal v. State of Punjab, [1964) 7 SCR 676; !sher Das v. State of Punjab, AIR (1972) SC 1295; Ram Parkash

v. State of Himachal Pradesh, AIR (1973) SC 780.

When considering the nature of the offence the court must have a C realistic view on the gravity of the offence, 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 reliefs envisaged in Section 4 of the Act. However, as the Court is enjoined to take into D 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" is 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 characteristic which serves as an index to the essential or intrinsic nature of the person".

E In Black's Law Dictionary "character" is defined as "the aggregate of the moral qualities belong to and distinguish an individual person; the general result of the one's distinguishing attributef.". 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' is what a man is, and 'reputation' is what he is supposed to be in what people say he is.

Character depends on attributes possessed, and 'reputation' on aeributes 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.

H 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 A observe here that learned single judge did not mention anything about the character of the respondent qua the accusations found against him.

While adverting to the nature of the offence we bear in mind the necessity to weed out imposters in the professions which require special B 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 menacing scales. The case of the respondent is not one of single lapse or even multiple delinquencies confined lo 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 C would have considerably eroded public confidence in the probity of the legal profession particularly in that area and besmircJied 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 D 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 Associa- E tion. If the vigilant Bar 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 have 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 G 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 H

A six months under each count (Sections 419 and 420 IPC) and to pay fine of 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 fine, if collected, shall be added to the fund of the Legal Service Board in the State of Tamil Nadu.

B 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.

R.C.

Appeal allowed.