MANU/WB/0349/1966

IN THE HIGH COURT OF CALCUTTA

Decided On: 03.01.1966
Appellants: In Re: Tarangajit Das
Hon'ble Judges/Coram:
Banerjee, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Arun Prokash Chatterjee
JUDGMENT
Banerjee, J.
1. Under section 6 of the Legal Practitioners Act, 1879, High Courts are entitled to make
rules, inter alia, in the following matters, namely :
(a) * * *
(b) the qualifications, admission and certificates of proper persons to be
Mukhtars of the subordinate Courts and, in the case of a High Court not
established by Royal Charter, in respect of which the Indian Bar Councils Act,
1926, is not in force of such Court ;
(c) the fees to be paid for the examination and admission of such persons ; and
(d) the suspension and dismissal of such........Mukhtars.
Section 7 of the above Act provides for grant of annual certificates of Mukhtars
authorising them to practise. Section 9 of the above Act further provides as follows :
Every Mukhtar holding a certificate issued under section 7 may apply to be
enrolled in any Civil or Criminal Court mentioned therein and situate within the
same limits, and, subject to such rules as the High Court may from time to time
make in this behalf, the presiding Judge shall enrol him accordingly ; and
thereupon he may practise as a Mukhtar in any such Civil Court and any Court
subordinate thereto, and may subject to the provisions of the Code of Criminal
Procedure appear, plead and act in any such Criminal Court and any Court
subordinate thereto.
Under section 10 of the above Act no person is to practise as a Mukhtar unless he holds
a certificate issued under section 7 and is enrolled as a Mukhtar in a Court.
Now, the definition of the word 'Pleader' under section 4 (r) of the Code of Criminal
Procedure, prior to its amendment by Act XXXV of 1923, used to read :
'Pleader' used with reference to any proceeding in any Court, means a pleader
or a mukhtar authorized under any law for the time being in force to practise in
such Court, and includes (1) an advocate, a vakil and an attorney of a High
Court so authorized, and (2) any other person appointed with the permission of
the Court to act in such proceeding :

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Under the definition, as it stood, Mukhtars fell under the second part of the definition
and were not entitled, as of right, to practise before Cr. Courts. It was necessary for a
Mukhtar to obtain permission of the Court in each case before he was authorised to
practise. Such permission used to be readily granted. Nevertheless, Mukhtars had a
sentimental grievance against this lack of privilege to practise before Criminal Courts as
of right. In order to remove this grievance, the definition of the expression 'Pleader' was
amended by Act XXXV of 1923 and the words "or a Mukhtar" were added after the
words--"means a Pleader", in the definition. The amendment did away with the
necessity of permission and gave the Mukhtars the status they coveted.
2. The petitioner had himself enrolled as a Mukhtar under the Legal Petitioners Act and
began practising before the Criminal Courts at Ranaghat, district Nadia. In course of his
practice he used to stand surety in connection with release of accused persons on bail
and earn remuneration for acting as such.
3. In 1961 came the Advocates Act--an Act to amend and consolidate the law relating to
legal practitioners and for the constitution of the Bar Councils and an All India Bar.
Under subsection (3) of section 24 (inserted by Act XXI of 1964) certain classes of
Mukhtars were given the liberty to have themselves enrolled as Advocates. The material
portion of the said subsection reads as follows :
(3) Notwithstanding anything contained in sub-section (1) a person who--
(a) before the 31st day of March, 1964, has, for at least three years,
been a Vakil, a Pleader, a Mukhtar or was entitled at any time to be
enrolled under any law then in force as an Advocate of a High Court
(XX) or of a Court of Judicial Commissioner in any Union territory ;
(b) * * * *
(c) * * * *
may be enrolled as an Advocate of a State roll.
4. The petitioner availed of the liberty and had himself enrolled as an Advocate in the
year 1964. At that time he did not anticipate that his new dignity and status may
impede him in earning money in his old fashion.
5. Now section 49 (c) of the Advocates Act authorises the Bar Council of India to frame
rules, inter alia, on "the standard of professional conduct and etiquette to be observed
by the Advocates". In exercise of such powers the Bar Council of India prescribed
certain rules on standards of professional conduct and etiquette of which the preamble
reads as follows :
An Advocate shall, at all times, comport himself in a manner befitting his status
as an officer of the court, a privileged member of the community, and a
gentleman, bearing in mind that what may be lawful and moral for a person
who is not a member of the Bar, or for a member of the Bar in his non-
professional capacity may still be improper for an advocate. Without prejudice
to the generality of the foregoing obligation, an Advocate shall fearlessly
uphold the interest of his client, and in his conduct conform to the rules
hereinafter mentioned both in letter and in spirit. The rules hereinafter
mentioned contain canons of conduct and etiquette adopted as general guides ;
yet the specific mention thereof shall not be construed as a denial of the

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 existence of others equally imperative though not specifically mentioned.
Rule 10 of the said Rules further provides :
An Advocate shall not stand as a surety, or certify the soundness of a surety,
for his client required for the purpose of any legal proceedings.
6 . The respondent Sub-divisional Magistrate of Ranaghat took note of Rule 10 and
wrote to the petitioner in the following language :
Notice is hereby given that in terms of section 49 of the Advocates Act, 1961,
read with rule 10 of the Bar Council resolution, you will not be allowed to stand
surety in Criminal proceedings on and from 1-1-1966.
7 . The petitioner feels aggrieved by the provisions of Rule 10 and the letter quoted
above. According to the petitioner, Rule 10 is outside the ambit and scope of the
Advocates Act and the duty of the Bar Council of India, under section 7(c) of the
Advocates Act, being to safeguard the rights, privileges and interests of the Advocates,
the Bar Council should not have curtailed the professional rights of ex-Mukhtar-
Advocates. Further, according to the petitioner, the right to stand as surety for an
accused is not derogatory to the conduct and etiquette of professional lawyers and a
rule depriving them of the right should not have been framed. Also, according to the
petitioner, Rule 10 would lead to the financial ruination of ex-Mukhtar-Advocates
professionally and the Bar Council of India is not any way authorized to bring about
such ruination upon them. Lastly, according to the petitioner, the respondent Sub-
divisional Magistrate had no jurisdiction to write to the petitioner, as done by him, and
to deprive him of his professional rights.
8. In my opinion, the grievances made by the petitioner are mostly without substance.
The right of a citizen, in this country, to practise a profession is not extra legem and
may, by law, be subjected to reasonable restrictions. The Advocates Act authorised the
Bar Council of India to prescribe standards of professional conduct and etiquette for
Advocates and thus make the profession of law subject to reasonable restrictions of
professional conduct, for the good of the profession itself. The profession of law, in this
country, has acquired a reputation. Lawyers are treated not only as learned men but as
gentlemen of very high order. It is the duty of the Bar Council to try to maintain that
reputation, which the profession has won by learning, courage, sacrifice and dignified
conduct. In framing the rules of professional conduct the Bar Council of India appears
to have been actuated by that duty and seems to have performed the same with great
daring--even to the extent of calling upon Advocates to comport themselves as
"privileged members of the community," in a country pledged by the Constitution to
secure to all its citizens "equality of status and opportunity." The prescription may not
be palatable to all tastes but, nevertheless, may embody in itself the ripened result of
varied and daring experience.
9 . The petitioner thinks that he had a right to stand surety for accused persons. That
right, if it was a right at all, was no peculiar privilege of his profession. Any reliable
person may stand as a surety for an accused person. I do not, therefore, find that in
framing Rule 10 the Bar Council of India made an invasion upon any special privilege
enjoyed by professional lawyers and acted beyond the scope of its powers and functions
under the Advocates Act.
10. To stand as a surety has its risks. If an accused person jump his bail, his lawyer
surety faces certain consequences not very honorable to him. If the Bar Council of India

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thinks that an Advocate should not be permitted to court risks of such dishonor in his
professional capacity, and prohibits him from standing as a surety for a client, I do not
think that the Bar Council acted in an unreasonable manner and in excess of its powers.
11. The petitioner himself chose to join the rank of a dignified profession. He must
comport himself to the standards of that profession, prescribed by the authorised body
and must not be allowed to import his old carriage in his new world where heights are
higher, climates more rigorous and code of conduct more exclusive. Turning now to the
letter from the respondent Sub-divisional Magistrate, I find that it appears to go beyond
Rule 10 in one respect. Rule 10 prohibits the petitioner from standing as a surety or
from certifying the soundness of the surety for his client. It does not debar him from
standing as a surety, outside his professional capacity, as an ordinary citizen. The letter
was addressed to the petitioner is in his capacity as an Advocate and possibly meant
that the petitioner would not be allowed to stand as a surety in his professional
capacity. If it meant anything more, then to that extent the letter was improper. If the
competency of the petitioner to stand surety otherwise than as an Advocate, be
doubted, because of the existence of Rule 10, he may try his remedies at that time. In
the context of the present petition, I need do no more than to clarify this position.
With the above observations I dismiss this petition.
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