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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.