The charges are serious. This class of offence, the intimidation and tutoring of witnesses, is only too common. In the ordinary individual it is bad enough. In the case of a member of the legal profession it is a far graver offence. It is unnecessary to dilate upon this. It shows that the Vakil is unfit to be a member of the honourable profession to which at present he belongs. The fact that he has in his defence produced evidence of a highly suspicious character, like the letter of November 6th, 1917, goes to show that his idea of the honour of his profession and its true standard of morality is a very low one. The production of such evidence in his case is sufficient in itself to disqualify for the Bar.
Henry Richards, C.J.
1. In this case we are called upon to investigate two charges of alleged misconduct on the part of Babu Har Prasad Singh, who is stated to be the leading Pleader at Banda. The first charge relates to matters which are alleged to have taken place as far back as the year 1915. It would seem that in that year (and even now) there are two rival factions in the Municipality of Banda. Har Prasad was certainly associated with one of these parties, although he had ceased to be a member of the Municipal Board, before the happening of the matters to which I shall refer presently. Unfortunately there are strong indications that these factions were not wholly influenced by a wholesome rivalry to do what was best for the residents of Banda City. On the contrary Har Prasad contends that the present charges against him are altogether false and have been engineered by the opposing faction. In the year 1915 a charge was made against one Sheo Prosad of having defrauded the Municipality. This Sheo Prasad was in the employment of the Municipal Board and it was alleged against him that he had bought on behalf of the Municipal Board inferior gram at a low price and charged the Municipal Board the price of good gram. There can be no doubt that the case of Sheo Prasad was made a "party" case between the two rival factions. One party was anxious to have him prosecuted; the other party was anxious to shield him. An enquiry was held by the Municipality and Har Prasad appeared professionally for Sheo Prasad at this enquiry. In the end Sheo Prasad was committed to trial in the Court of Session and convicted. He appealed to the High Court and the conviction was set aside by a learned Judge. At the trial of Sheo Prasad one Maiku (otherwise Langra) was examined as a witness. The first charge against Har Prasad is that prior to the examination of Maiku he (Har Prasad) sent for him and told him that he should not give evidence and accompanied this order with an intimation that if he did give evidence it would be so much the worse for him. It is contended on behalf of Har Prasad that he labours under considerable difficulty in having now to meet and disprove matters which occurred as far back as the year 1915. This is undoubtedly true but the prosecution (if I may use the expression for want of a better) is not to blame because the interference with Maiku as a witness in a criminal case, if true, did not come to light in such a way that it could be reported to this Court until quite recently. It happened thus: A criminal charge was brought against one Sarju by a man named Prag Dat, a warder in the Banda Jail, alleging fraud in connection with the purchase of a cow. Sarju alleged amongst other things that this false case had been engineered against him by the leaders of one of the rival factions to which I have already referred, in consequence of certain action which he took in connection with the case of Sheo Prasad. The case was also made a 'party" case. A witness of the name of Ram Nihore was examined on behalf of Sarju, and at the conclusion of his evidence he stated that Har Prasad had come to his house which is at Manikpur quite close to the railway station and told him that he was not to appear as a witness on behalf of Sarju, and that if he did it would be worse for him or words to that effect, It is this statement by Ram Nihore which led to Har Prasad being reported to this Court and the allegation that Har Prasad attempted to interfere with Ram Nihore giving evidence in Sarju's case forms the basis of the 2nd charge against him. Har Prasad, as already stated, appeared for Sheo Prasad at the enquiry which the Municipality held. He subsequently appeared for him at the trial before the Court of Session. But Har Prasad says that he was not acting on his behalf in the interval between the enquiry by the Municipality and the trial at the Court of Session. Har Prasad also appeared professionally to support the prosecution against Sarju, but he states that the part he took was practically confined to making suggestions and that the conduct of the case was left in other hands. Maiku was examined before us in support of the first charge. He stated that he was sent for on a particular day, that in consequence of what the messenger said he went with the messenger in the evening to the house of Har Prasad and that Har Prasad then told him that he must not appear as a witness. He at once agreed not to do so. He stated that there was another person present whose name he did not know but who was the Karinda for a Zemindar of the name of Kashi Nath. The witness was cross-examined as to the time and the description of Har Prasad's house and premises. The witness answered these questions apparently correctly. His demeanour was good and he had all the appearance of a truthful witness. Maiku further stated that after he had had the interviews with Har Prasad, Sarju came to him and told him he must give evidence. He at once agreed. The next witness was a man called Ejaz Husain. He was the Karinda of Kashi Nath, and he stated that on a particular day in July 1915 he had gone to the house of Har Prasad to speak to him about legal business of Kashi Nath. I must here mention that admittedly Har Prasad conducts the greater part, if not the whole, of the legal business of Kashi Nath. He says that he found Maiku already there, that he heard the conversation which took place between Maiku and Har Prasad. Maiku went away after a short time and he (the witness) remained behind and talked over the business about which he had come. This witness was unable to mention the case or the nature of the business about which he had come to Har Prasad. He was cross-examined to show that he had already left the service of Kashi Nath in July 1915, and that, therefore, it was impossible that he could have come to speak to Har Prasad upon the business of Kashi Nath. He was also cross-examined to show that he having been subsequently re-appointed Karinda to Kashi Nath, he was dismissed a second time at the instigation of Har Prasad. The object of this last part of the cross-examination was to indicate a reason why Ejaz Husain might give false evidence against Har Prasad. Ejaz Husain admits that he ceased to be in the employment of Kashi Nath in the month of July 1915, but he says that he was not dismissed by Kashi Nath but that he left of his own accord. Kashi Nath was examined afterwards on behalf of Har Prasad and he produced a book which showed that a registered notice had been sent by him to Ejaz Husain. He produced the letter from Ejaz Husain in answer to his notice. From the answer which Ejaz Husain admits having sent it would appear that the registered notice was a notice requiring Ejaz Husain to hand over certain documents belonging to Kashi Nath which were in his possession as Karinda. The answer was a very proper answer and explained that the only reason why the documents were not handed over was that the agent sent by Kashi Nath for the documents refused to give a receipt. This notice was sent on or about the 19th of July 1916. Maiku is of course unable to state the exact date in July 1915 that he visited Har Prasad, but from other circumstances it would appear that if this interview took place at all it must have been about the 10th of July. Kashi Nath says that he dismissed Ejaz Husain in July. Neither Kashi Nath nor Ejaz Husain are able satisfactorily to give the exact date when Ejaz Husain ceased to be Karinda to Kashi Nath. It is admitted that whether Ejaz Husain was dismissed or ceased to be Karinda of his own accord, he did give up the employment in July and I am inclined to think that the employment must have come to an end some little time before the sending of the notice to give up the documents. My reason is that I think the ceasing to be employed as Karinda must have preceded the notice and I think this notwithstanding that Kashi Nath produced the book to fix the time when the employment ceased. This circumstance, coupled with the fact that Ejaz Husain is either unable or unwilling to state the nature of the business about which he went to Har Prasad, detracts to some extent from the value of his evidence. Siddik Husain, Sub-Inspector, was examined and stated that he got information that attempts would be made to tamper with the witness against Sheo Prasad and that in consequence of the information he approached Sarju, whom he knew to be a man who would be likely to have influence with Maiku, and that very shortly after Sarju had seen Maiku he took the precaution of having the evidence of Maiku recorded under Section 164 of the Code of Criminal Procedure. That the evidence was so recorded it in admitted. Sarju deposes to the fact that he did interview Maiku and learnt from him that Har Prasad had told him that he was not to give evidence. Maiku apparently without any hesitation then agreed that he would give evidence. Har Prasad gave evidence and absolutely denied having ever had any interview of any kind with Maiku. He stated that after Ejaz Husain had been re-employed in December 1917 by Kashi Nath, he in the month of February of this year strongly urged Kashi Nath not to keep Ejaz Husain. It appears that after Ejaz Husain in the year 1915 ceased to be in the employment of Kashi Nath, he went into the employment of one Debi Prasad, a nephew of Kashi Nath. There was some friction between the uncle and nephew, and Har Prasad says that he gave as a reason to Kashi Nath for not retaining Ejaz Husain that he was the mischief maker. Kashi Nath was not present when Ejaz Husain gave his evidence. The learned Advocate for Har Prasad professed to be taken completely by surprise by the evidence of Ejaz Husain. Kashi Nath was sent for from Banda and arrived and was examined in the case. He is apparently a respectable Zemindar. His evidence was not very satisfactory. A letter of his was put into his hand (dated March 1917). in which he addressed Ejaz Husain as "Karinda" and spoke to him about a case of his (Kashi Nath). Another letter, dated August 1917, was also produced and the two documents go to show that at the time the relations between Kashi Nath and Ejaz Husain were not at all unfriendly and that the letter had to do with Court work. There is a direct conflict between the evidence of Har Prasad and Kashi Nath as to the circumstances connected with the alleged dismissal of Ejaz Husain in February of the present year. Ejaz Husain states that he was never dismissed at all, and on the day be first gave his evidence he said that Kashi Nath actually came to the railway station with him when he was coming away to attend this Court. Kashi Nath says that the reason Har Prasad gave for advising him not to retain Ejaz Husain in his service was that he had not trusted him in 1915. He tol d us hat he never communicated to Ejaz Husain the fact that Har Prasad had advised that he should be dismissed, and that as a matter of fact he did not actually dismiss him. He says that he was no doubt influenced by what Har Prasad said, but the actual dismissal took place in this way that Ejaz Husain said that he was not satisfied with him (Kashi Nath) and that he (Kashi Nath) then said, well, brother, as you are not satisfied we had better part", or words to that effect. The discrepancy between Har Prasad and Kashi Nath on this matter is somewhat significant, because it relates to events which happened only a very short time ago. It was strongly urged on behalf of Har Prasad that it was very unlikely that he would have committed such a serious offence as to order Maiku not to give evidence in the presence of Ejaz Husain, and that if he wanted to interfere with a witness like Maiku he would not have done so directly. I think that these are matters which we certainly should consider. It was also contended that it was unlikely that Har Prasad would even know that Maiku was to be a witness, because his name had never been mentioned in the preliminary enquiry held by the Municipality nor at all until his evidence was recorded under Section
164. On the other hand the prosecution say that Maiku was an obvious witness from the very commencement. I am not satisfied that Maiku was an "obvious" witness, while on the other hand I see nothing in the least unlikely that Sheo Prasad should have told Har Prasad that Maiku was likely to be examined as a witness against him. If the case against Sheo Prasad was true, I think that it would be almost certain that Sheo Prasad would have told Har Prasad, who was his Vakil presumably taking a keen interest in his case. Mr. Peare Lal Banerji asked us to deal with the present case on the assumption that Sheo Prasad was innocent because he was acquitted by the High Court. I do not think that we can do this. Sheo Prasad is entitled to the full benefit of his acquittal, but I do not think that any person else is entitled to ask us to hold that the acquittal of Sheo Prasad conclusively demonstrates his innocence. The judgment of the High Court seems to have given Sheo Prasad the benefit of the doubt. One of the reasons for the acquittal was the supposed somewhat late appearance of Maiku as a witness. It is possible that the High Court's attention was not drawn to the fact that his evidence had to be recorded under Section 164 of the Code of Criminal Procedure, (i.e., as a witness who might be tampered with), and the High Court had not before it the evidence which we have bad in the present case that the witnesses were being tampered with. It appears that not only the evidence of Maiku but also of a number of other witnesses was recorded under Section 1 4. Mr. Peare Lal called our attention to the difficulty which his client is under in having to meet a charge which relates to matters which happened in the year 1915. While the prosecution are not to blame for this, I think it is a matter to which we should give careful consideration. A number of professional gentlemen appear for Har Prasad. It appears that they are giving their services gratuitously. One would have thought in the present case that one of the first things that would have been done would have been to have made an application to the prosecution for particulars as to the time and manner at and in which Har Prasad was alleged to have interfered with the witness Maiku. No particulars of any kind seem to have been asked for. The only thing which was done was a verbal request to the Government Advocate to give the names of the witnesses he intended to call, which request was complied with and amongst these witnesses the name of Ejas Husain was mentioned. Har Prasad is an experienced Pleader and if he was in the dark as to the charge against him, it ought to have occurred to him to ask for particulars.
2. I now come to the 2nd charge. This case also undoubtedly became a "party" case. Sarju was the accused and he alleged that the case was a false one got up against him on account of the active part which he had taken against Sheo Prasad. (I may mention here that Sarju was acquitted.) The evidence in support of the 2nd charge is confined to that of Ram Nihore. He states that his house is quite close to Manikpur Railway Station and that Har Prasad whilst waiting at the station came in and told him not to give evidence. It must be said in favour of this witness that he not only stated this when he gave evidence on behalf of Sarju but he also mentioned two persons who were present at the time. These two persons have not been called either by the prosecution or by the defence. Ram Nihore states that he refused to be influenced by Har Prasad and that he told the latter that he would give evidence. Har Prasad swears that he never went to the house of Ram Nihore and he produces two witnesses who accompanied him on the day he travelled from Banda to Allahabad. The allegation of the prosecution is that the visit to Ram Nihore was paid whilst Har Prasad was waiting at Manikpur Junction. Har Prasad had to change at Manikpur and remain there for about two hours before he got the train for Allahabad. The first witness was a man named Shah Saidullah. He is the Bench Reader in the Court of the Sessions Judge at Banda. The other man was Abdul Shakur, who is a Sub-Assistant Surgeon. Both of these witnesses stated that it was impossible for Har Prasad to have gone to the house of Ram Nihore without their being aware of the fact and that he did pot go. Considering that the house of Ram Nihore is very close to the station, one is a little inclined to doubt the evidence of these two witnesses. They had no particular reason for keeping Har Prasad under observation. A letter was produced written by Har Prasad to Saidullah, in which the former asked the latter to state his recollection of all that occurred during the wait at Manikpur. Saidullah writes his reply on the same sheet of paper and professes to be quite unaware of the reason why Har Prasad had asked him, and in his evidence in this Court Saidullah said that he did not know the reason. A week before this letter was written the Magistrate had made an order against Har Prasad in this very case, and considering the position of Har Prasad and the fact that Saidullah is the Bench Reader in the Sessions Court, I do not believe that Saidullah did not know the reason why Har Prasad had written to him. The Sub-Assistant Surgeon was mixed up in the case against Sarju. I do not think that either of these witnesses can be regarded as altogether independent witnesses upon whose testimony the Court should place implicit confidence. Nevertheless the evidence on the second charge is the oath of Ram Nihore against the oath of Har Prasad and Ram Nihore admits that he was convicted 14 years ago and sentenced to two years. The charge was robbery. Ram Nihore is a Brahman by caste. He looks respectable and notwithstanding his conviction he apparently occupies a respectable position and has outlived his "conviction. In his cross-examination he seemed to admit that he was justly punished for violence but not for stealing. We must consider why it was that Ram Nihore told about the alleged visit of Har Prasad. He volunteered the statement, A reasonable explanation would be that he apprehended that evil might befall him in consequence of his having given evidence. If he volunteered the statement for any other reason it would put a different complexion on his evidence and indeed on the whole case. In this connection we must not lose sight of the fact of the existence of the two hostile factions. Har Prasad contends that the present charge is the result of a conspiracy against him. Let us assume for a moment that what Ram Nihore says is untrue and that Har Prasad never, went to his house at Manikpur. This would mean that the enemies of Har Prasad conspired at or before the time of the charge against Sarju that Ram Nihore, when called as a witness for Sarju, should falsely volunteer the statement that Har Prasad had ordered him not to give evidence, in the hope that the statement would get him (Har Prasad) into trouble. Such a conspiracy seems highly improbable. I have approached the consideration of this case as if it were a criminal case in which a very serious charge was being made against Har Prasad, I think that we ought to give him the benefit of any reasonable doubt if we have any. I have given the case anxious consideration not only at the hearing but in the interval which has elapsed. I have discussed the case and the various points I have mentioned with my colleagues also. Most reluctantly I come to the conclusion that the charges are true.
Tudball, J.
3. Babu Har Prasad Singh, a Vakil, has been called upon to show cause why this Court should not deal with him in the exercise of its disciplinary powers under Section 8 of the. Letters Patent. A Deputy Magistrate of the first class has made a report in respect to his conduct on 21st November 1917, which was forwarded to this Court by the District Magistrate on 30th November 1917 and notice was issued on 21st January 1918 to the Vakil together with copies of both reports. The Magistrate preferred four charges Of these, two have not been pressed by the learned Government Advocate and our inquiry has been limited to the remaining two. These are charges of a similar nature, viz., that the Vakil in each case threatened a person who was about to give evidence in a criminal matter with a view to deter him from giving such evidence. In a way the two cases are connected with each other and I propose to state the facts which have led up to them. Babu Har Prasad Singh is said to be the leading Pleader practising in the Subordinate Courts at Banda, a small town where the headquarters of the civil administration of the District are situated. There is a Municipality governed by a Municipal Board. What is exactly meant by saying that Har Prasad Singh is the leading Pleader is not quite clear. He has a good local practice. He is fairly young and takes an active and keen part in local public matters and is a man of considerable local influence. He takes an interest in Municipal matters and at least up to 1912 or 1913 was a member of the Municipal Board. He was then unseated and there was some litigation about the election and at present he is not a member of the Board.
4. It is common ground that in respect to Municipal matters there were two contending parties in the town which, as is so often the case, devoted their time and energy not so much to furthering the public interests as to thwarting and defeating each other. There is little doubt that Har Prasad Singh was the leading spirit of the one and one Muhammad Raza, Husain that of the other party. Such was the state of local feeling in the year 1914 when an accusation was preferred by Muhammad Raza Husain in his official capacity against one Sheo Prasad, an employee of the Municipal Board. The latter was an officer who held in his hands an advance of public money and was entrusted among other duties with the purchase of grain for the feeding of the Board's draught cattle. The charge against him was that he had purchased "weevil eaten" gram at a cheap rate and had charged for good gram at full rates. The purchase was said to have been made from one Sheo Nath. An inquiry was directed by the Municipal Chairman to be made and Muhammad Raza Husain was entrusted with the collection of the evidence. Of course he had no powers to summon witnesses or enforce their attendance and he had to go about inquiring from persons and take their statements. Like all things Municipal in this country, there was a considerable waste of time owing to friction between the Chairman and Raza Husain, and the opposite faction took upon themselves the protection of Sheo Prasad. The latter admittedly engaged the service of Babu Har Prasad Singh to watch his interests in the inquiry. Matters dragged on till July 1915. The act charged amounted to a criminal offence and in that month the matter was made over to the Police for inquiry and necessary action. The Police inquiry was made over to the Kotwa Sub-Inspector Mohammad Saddik, who began it on 14th July 1915. In the course thereof he examined one Maiku (alias Langra) as a witness. As there were outside influences at work and he had information that attempts were being made to prevent the witnesses giving their evidence, Mohammad Saddik placed all the witnesses including Maiku before a Magistrate and caused their statements to be recorded under Section 164, Criminal Procedure Code. This is a step which is usually taken by a Police Officer when he has reason to believe that influence will be or is being brought to bear on a witness to prevent him testifying in Court. The case was then placed by the Police Officer for inquiry before a Magistrate who committed Sheo Prasad for trial to the Court of Session. The Sessions Judge at the trial found him guilty and convicted and sentenced him. Babu Har Prasad Singh was a witness for the defence of Sheo Prasad and gave evidence on his behalf. At both the inquiry and trial Maiku gave evidence for the prosecution, swearing that he was the weigh man who actually weighed the gram which had been sold by Sheo Nath to Sheo Prasad. He testified as to its quality. He is a professional licensed weighman who receives his fee at the time of weighment. Sheo Nath also followed the same profession, but the gram that he sold was alleged to be his own personal property. He had had it in his possession for some time and he sold it cheaply according to the prosecution case, because it had been attacked by weevils. It is obvious that if this were true, the man who actually weighed the gram must have seen and recognised its condition. It is equally obvious to one who has any knowledge of how grain dealings in an Indian market are carried out and is experienced in investigating crime that in such a case as Sheo Prasad's, the weighman would be a witness of some importance one way or the other. At the Magisterial inquiry and at the trial in the Court of Session Babu Har Prasad Singh appeared and acted for Sheo Prasad. The latter appealed to this Court and the learned Judge who heard the appeal considered that there was room for considerable suspicion. He criticised the action of Raza Husain in the matter, laid stress on the fact that Maiku had not been examined as a witness at the Municipal inquiry and hesitating to accept the evidence he gave the accused the benefit of the doubt in his mind and acquitted him. The date of the High Court's order is the 15th March 1916. This closed the first phase of the battle. It had a sequel. The Police Officer Mohammad Saddik was transferred to another District and in the first half of 1917, a charge of cheating in respect to a cow was preferred by one Prag Dutt, a warder at the Banda Jail, against one Sarju. Singh. The latter is a fairly well-to-do resident of Banda who deals in grain, etc., and who supplied grain on contract to the Jail. Prag Datt's case was shortly that Sarju Singh had asked him to sell him a cow for Rs. 30 saying that it was required for the Civil Surgeon, that he, Prag Dat, said that if it was wanted for the Civil Surgeon he could have it for nothing and that Sarju Singh took it. Later on he discovered that Sarju Singh had lied to him and he put the matter into the hands of the Police. The latter after making enquiry sent the case up for trial to the Court of Babu Shimbhu Narain in May 1917. Sarju Singh for certain reasons objected to the case being tried by that Magistrate and succeeded in securing its transfer to the Court of Mr. S.M.H. Rizwi, a Muhammadan gentleman who finally decided the case on October 31st 19 17, acquitting Sarju Singh.
5. By reason of what came to light during the course of this trial the Magistrate "at once" took action against Babu Har Prasad Singh. He at first issued notice to the Pleader and began an inquiry. Objection was apparently taken to his jurisdiction and he at once stopped his inquiry and submitted his report on November 21st 1917, through the District Magistrate to this Court.
6. Sarju Singh in his defence pleaded that he had purchased the cow for Rs. 40 from Prag Dat, that he had paid down Rs. 18 and had subsequently paid the balance of Rs. 22 and obtained a receipt for the whole in the presence of certain persons, Dhani Ram Ram Nihore, etc.
7. He filed a long written statement, explaining how his relations with the Subordinate Jail staff had become strained and why they were interested in bringing a false charge against him. He further alleged in paragraph 10 thereof that certain persons, of whom Babu Har Prasad and Kashi Nath were two, bore him a grudge by reason of the part he had taken in assisting the Police in the enquiry made in 1915 in Sheo Prasad's case. Now in the case based on the complaint of Prag Dat, Babu Har Prasad Singh was engaged by Prag Dat to prosecute Sarju Singh and it was and still is the latter's complaint that Babu Har Prasad Singh had a personal as well as a professional interest in the matter and was trying to secure his (Sarju's) conviction on a false charge because he (Sarju) had helped to secure the conviction of Sheo Prasad. In his defence Sarju Singh summoned Inspector Muhammad Saddik and Ram Nihore amongst other witnesses. Muhammad Saddik testified to the fact that while he was investigating the case against Sheo Prasad he got information that Babu Har Prasad Singh was attempting to prevent Maiku giving evidence, that as Sarju Singh was a person who in the course of business had dealings with Maiku and had considerable influence over him, he approached him and asked him to use his influence over Maiku to get the latter to be firm and to tell the truth and Sarju Singh did help him and spoke to Maiku. This evidence was given on October 2nd, 1917. On October 1st, i.e, the day before, Ram Nihore had been examined and had testified to the payment of Rs. 22 and the execution of a receipt. After his evidence had been recorded, read over to and signed by him, he turned to the Magistrate and appealed to him. He said that on Saturday, September 29th i.e., two days before, Babu Har Prasad Singh and Prag Dat bad both come to his house (which is just outside the Railway Station at Manikpur) in the afternoon and that the former, after asking him whether he was a witness in Sarju Singh's case and being informed that he was, had told him that he was not to give evidence otherwise he would get into serious trouble (serban hoge).
8. On hearing this the Magistrate at once placed him on oath again and recorded his statement on the point. Ram Nihore mentioned two person, Ganesh Prasad and Harbans Prasad, as having been present on the occasion. The complainant Prag Dat was clearly present in Court when this took place. He has admitted that he was in Court that day so long as the hearing lasted and record also mentions this, but he says he did not hear the statement made. Babu Har Prasad Singh was not in Court. The cross-examination of Ram Nihore was postponed to October 2nd to enable Har Prasad to cross-examine him, but as the latter did not appear on October 2nd, the witness was cross-examined by the Court Inspector who did not question him about the incident of September 29th.
9. Babu Har Prasad Singh appeared at the trial on October 3rd and subsequent dates till the decision on October 31st (vide the record).
10. Though he must have been well aware of the accusations made against him, he up to October 31st made no protest in Court or attempt to deny the truth of Ram Nihore's statement.
11. The Magistrate after the decision immediately issued notice to Babu Har Prasad Singh under the Legal Practitioners Act and commenced an inquiry. He subsequently, as I have stated above, found that he had no jurisdiction and reported the matter for the orders of this Court. We have made the inquiry and examined the evidence.
12. The two charges are:
(1) that on or about the 10th July 1915 he, Har Prasad Singh, in his own house at Banda did send for and intimidate the, witness Maiku alias Langra to prevent him giving evidence against Sheo Prasad;
(2) that on September 29th, 1917, at Manikpur he similarly intimidated Ram Nihore to prevent him giving evidence on behalf of Sarju Singh, Muhammad Saddik Inspector and Ram Nihore.
13. Babu Har Prasad in his defence has given evidence and has examined only four out of the large number of witnesses summoned on his behalf. Maiku's evidence is to the effect that a few (5 or 6) days before he was examined by the Police in the course of their investigation in July 1915, Babu Har Prasad Singh sent a man to his house who took him to Har Prasad's house, It was evening time, about 7 or 8 p. M. He was taken to the Vakil's office. Har Prasad Singh told him that he was not to give evidence in Sheo Prasad's case or he would cause him to be sent to jail. He acquiesced as most men in his position in this country would have done. The only person who ever heard the conversation was the Karinda of Babu Kashi Nath, whom he knew by sight but not by name.
14. A few days after, Sarju Singh came to him and questioned him. He told him of Har Prasad's threat. Sarju Singh told him not to be afraid but to stick to the truth. He was then examined by the Police and was also placed before a Magistrate, who recorded his statement in the matter of Sheo Prasad.
15. The witness gave his evidence in a very satisfactory manner and stood his cross-examination well. It was stated that he had no knowledge of Har Prasad's house and had never been inside of it. He was closely cross-examined on the point, but his manner and his face and the way in which he gave his description showed clearly that his statement on the point was true. No evidence of any sort has been called to show that he has made even any errors on this point. The man, of course, is only a weighman and persons of his class can easily he bought over to give evidence. It is true that in the course of the Municipal inquiry he was not brought forward and examined, but no weighman apparently was examined and it is obvious that a weighman is employed when grain is purchased. It was, we are told, Sheo Prasad's case that he personally purchased no grain but that all purchases were made by his co-accused in that case, a Municipal sweeper. Sheo Nath, the person who was said to have sold the grain, was apparently examined during the Municipal inquiry but Maiku seems not to have been named. Sheo Nath is now dead and cannot be examined. It has been urged that Har Prasad Singh could have had no knowledge whatsoever even of Maiku's existence, that he had nothing to do with the matter after the Municipality had decided to prosecute until it came into Court and, therefore, he could not possibly have sent for Maiku. In the state of affairs existing at Banda in regard to Municipal matters and the leading position, which Har Prasad occupied, I cannot believe this. He fought for Sheo Prasad throughout and if the case against the latter was a true one, Sheo Prasad and Har Prasad would most certainly have understood the importance of Maiku as a witness. He actually handled the grain (assuming the case to have been a true one) and must have seen and recognised that the grain was weevil eaten. One cannot mistake grain of that kind. The chief point against him is that he did not come forward in the course of the somewhat amateur inquiry made by an Indian Municipal member. His statement, moreover, does not stand alone. It is supported by the evidence of Sarju Singh and Muhammad Saddik and directly corroborated by that of Ejaz Husain. I will discuss the value of their statements later. There is one fact which cannot be denied, viz., that the Police deemed it necessary to have the statements of all the witnesses recorded by a Magistrate at the latter's house.
16. The witness also is subject to the influence of Sarju Singh who at present is embittered against Har Prasad in view of Prag Dat's case against him, but the matter that is now before us was put forward for the defence in that case and Muhammad Saddik's evidence in the matter was recorded.
17. Sarju Singh has testified to the part he took in that matter at the request of the Police Officer. His house is near the Police Station. He knew the Kotwal and was on friendly terms with him. He dealt in grain and of course had concern with the licensed weighmen of the bazaar. The Police Officer sought his assistance in the matter and he gave it, with the result that he incurred the wrath of the party who sought to protect Sheo Prasad. When he was attacked, he defended himself and brought the matter to light. It is highly probable that the opposite party assisted him. His statement is strongly supported by the evidence of Muhammad Saddik, Inspector of Police. This officer is no longer in the Banda District. He was transferred sometime ago, He has testified to the manner in which he invoked Sarju Singh's assistance. He declined to give the name of the person who gave him information in respect to Har Prasad Singh's alleged action and as a Police Officer he is justified in his refusal. He gave his testimony in 1917 in Sarju Singh's case.
18. We are asked to disbelieve him because he made no entry in his diary about Har Prasad's alleged action and the steps he took to counter it, and it is faintly hinted (but in no degree proved) that the witness is a friend of M. Raza Husain who is hostile to Har Prasad Singh.
19. There is no force in the plea as to the diary. The matter is one that one officer might record and another might not. No rule exists on the point and the witness' action in having the statements recorded under Section 164, Criminal Procedure Code, is corroboration of his word.
20. The other point has still less force. Some years prior to 1897 this witness was a Police clerk in the District of Hamirpur before he was ever stationed at Banda. A charge under Section 330, Indian Penal Code was preferred against him and the case was committed for trial to the Court of Session at Banda. He was honourably acquitted and has since risen to his present rank. He says that many persons in Banda took an interest in his case. To his knowledge Raza Husain did not assist him in the matter. He did not then know Raza Husain and if he took any interest in the case he, the witness, had no knowledge. This is the only attempt to show a connection between the two men. The witness gave his evidence in a very satisfactory manner and I have no hesitation in Holding that he has told us the truth.
21. There remains on this point the important witness Ejaz Husain. This witness admittedly had been in 1915 a Karinda of Babu Kashi Nath for several years. He says that early in July 1915, he went one evening about 7 or 8 P.M. on his master's business to Babu Har Prasad Singh's house. He went to his office, he found Maiku and Har Prasad Singh present and he heard the latter tell the former that he was not to give evidence or he would get him into jail. Maiku acquiesced and went away. He did his business with the Pleader and also left. He says that he subsequently mentioned the matter to his master Babu Kashi Nath at the bistar of one Abdul Hai petition-writer, who also heard him mention it. The witness is unable to tell us what was the business about which he had to see the Pleader that evening. Babu Har Prasad totally denies the incident and it is his case that in July 1915 this man was not in Kashi Nath's employ, that Kashi Nath subsequently in the end of 1917 again re-employed the man but in February 1918 again dismissed him on the advice of Har Prasad Singh and the man has, therefore, now come forward by reason of ill-will at the instigation of Raza Husain to testify falsely. He says that the man after his first dismissal in 1915 took service with Lala Debi Prasad, the nephew of Kashi Nath, and by intrigue caused trouble between the uncle and nephew and was dismissed by the latter, that he (Har Prasad) called Kashi Nath's attention to this fact and got him to dismiss the man in February 1918, for this reason. To establish those two points he took time to produce Kashi Nath and examined him as a witness. We have had before as the two men Ejaz Husain and Kashi Nath. We have seen and heard them both, and I have no hesitation in saying that of the two Ejaz Husain is far the better and more truthful witness. As compared with Kashi Nath who is an Honorary Magistrate and pays Rs. 15,000 Government revenue, while he is only a Karinda, he gave his evidence easily and straightforwardly, whereas the Honorary Magistrate fought repeatedly with the questions put to him, would not answer at once but repeatedly prevaricated and was finally out of his own mouth convicted of having said what was not true on at least one point. Ejaz Husain says that it was in July 1915 that he left the service of Kashi Nath but that he was in that service when the incident to which he testifies took place. Now the Police inquiry commenced on 14th July 1915 and the incident occurred according to the evidence about 5 or 6 days before, i.e., about July 9th or 10th at the utmost. He admits that he then for about 18 months took service with Lala Debi Prasad and then again in February 1917 was employed by Kashi Nath and up to the date on which he gave his evidence before us had not been dismissed, though he had not by reason of illness done any work for about a month, i.e., in March 1918. He is employed in the management of certain villages and he still has in his possession his accounts and village papers, Kashi Nath has produced some account books and a copy of a notice which he sent to Ejaz Husain on July 19th, 1915, and he says that it was in July that he dismissed the man. He has nowhere stated that he dismissed him before July 19th, 1915, and the notice which has been read to us nowhere contains an order of dismissal or even hints at it. We are asked to infer it. The notice was sent because the man had delayed in sending in his annual papers and Kashi Nath has admitted that he only dismissed him because he had so delayed. Ejaz Husain admits having received this so called notice a few days after the 19th July and admits the answer to it which was put before us. That answer is a straightforward one and explained the delay by stating that the agent sent by Kashi Nath to fetch the papers had refused to give a receipt for them and so he had not handed them over. Kashi Nath admits that the papers were ultimately handed over. Ejaz Husain has stated also that there had been some dispute about the rate of his salary for some two months prior to this and so he retired.
22. We are asked to hold on this evidence that the man was not doing Kashi Nath's work on July 10th or 9th and therefore could not have gone to Har Prasad's house. The evidence to my mind shows that the dismissal was subsequent to July 19th and not prior to it. Kashi Nath cannot fix any date earlier than July 19th.
23. Stress is laid on the fact that Ejaz Husain cannot remember what his business was with Har Prasad on that evening. I do not think it fair on a witness to reject his evidence on so faint a reason as this. Kashi Nath wished us to believe that Ejaz Husain had no concern with any Court work, but that his duties were concerned only with the management of certain villages. Har Prasad Singh has admitted that on few occasions the man had been to see him. He (Har Prasad Singh) admittedly had been engaged for some 8 or 10 years as Kashi Nath's Pleader for the purpose of cases in the various Courts. Kashi Nath, however, was faced with the letter of 27th August 1917. He admitted that he wrote it and in the body of it is an order to Ejaz Husain to come to headquarters at once as he was required for a certain criminal case about which he had full knowledge and which he was to prosecute, The first point is, therefore, not established. The second plea is still less established than the first.
24. Har Prasad says that he called Kashi Nath's attention to the fact that the man was the person who had caused trouble between him and his nephew and that he ought not to have re-employed him and should get rid of him.
25. Kashi Nath's statement is quite different. Har Prasad (he says) asked him why he had again taken on a man whom he had had to dismiss once because he could not trust him and that it was most inadvisable. Kashi Nath adds that he might have retained the man if it had not been for this advice and in fact he did not tell him why he was parting with him; that the man was displeased with him and so he said, well, brother, as you are displeased with me, we had better part". Ejaz Husain denies this. Kashi Nath has to admit that he has not taken accounts or the village papers from the man, which is curious if he was dismissed in February 1918. I much prefer the evidence of Ejaz Husain on the point. The old gentleman cut a very poor figure in the witness box and when he found himself being tripped up he took refuge behind the stone wall of "I don't remember".
26. He swore most positively that Ejaz had not been re-employed by him until December 1917, though he had been approached by the man from September 1917 with a request for re-employment. He was very positive that he had not made use of his service between February and December 1917 and had paid him no salary. He had to admit that he wrote the two letters of 27th March 1917 and 27th August 1917. The first is not of much importance beyond evidencing friendly relations. The second is addressed to Ejaz Husain as "Karinda" and the address is one of Kashi Nath's own villages. It directs him to come as a certain criminal case was coming on for hearing on August 29th, 1917, and his presence was necessary as he was cognisant of all the facts of the case and that he was to bring as much ghee and money as he had collected and to arrange for the collection of the rest and that he was to come quickly to attend to and prosecute the case." The letter proves beyond doubt that Ejaz Husain was his Karinda in August 1917 and was working on his estate. The latter says that he was re-engaged from February 1917 and I do not hesitate to believe him. Kashi Nath after seeing the letter admitted that perhaps he had taken some work from him now and again and had made him a gift of money in exchange, but adhered to his statement that he did not regularly employ him until December 1917. The witness from, the manner in which he gave his evidence was clearly not telling the truth. He admitted that he had trusted the man when he was in his employ, that there was nothing against him except his delay in submitting his papers, that there was no friction between them and that if Har Prasad had not spoken to him he would probably have retained his services, but he was not at all surprised or puzzled that so great a personage as Har Prasad should have troubled himself to get a lowly servant thus dismissed.
27. He knew that Ejaz Hussain was summoned as a witness in this case against Har Prasad as the summons had come. He did not discuss the matter with him. He could not remember if he went to the station with him when the man left Banda by train (the man says he did, and this happened only a few days before the evidence was given).
28. The witness adds that he belongs to neither of the two factions in Banda, that when he saw how matters were trending he resigned his membership" of the Board and out himself off from them entirely. I have gone at somewhat great length into the evidence of these two men for a great deal depends on whether Ejaz Hussain is to be believed or not. He only hesitated once and that was when he was asked whether (the matter being an old one) he had recently made a statement on the point to any one. He admitted a bit reluctantly that he had been taken by Raza Husain to Mr. Hoskins (who appears with the Government Advocate) after his arrival in Allahabad and had made a statement to him, but on the whole his evidence was given easily without hesitation or prevarication and I accept it. It is pleaded that this man came as a surprise to the defence and they had no idea of the matters to which he was to testify. There is little force in this plea, for the learned Government Advocate states that the man's evidence was obtained on an inquiry made by a Tahsildar Magistrate, that he himself gave a list of his witnesses to the gentlemen who appear for Har Prasad Singh prior to the Easter Vacation and had expressed his readiness to supply any information desired on any point, but no one had approached him.
29. The applications for the summoning of witnesses by both sides were made to this Court on April 2nd last, The learned gentlemen who have appeared for Har Prasad Singh at no time applied (as they could have done) for any further particulars. Even during the hearing of the case they took time to produce Kashi Nath, but did not deem it advisable or necessary to ask for any further time to meet the case against their client. We would readily and willingly have given further time on decent cause being shown, nor is any further time even now requested.
30. Beyond doubt it is far more difficult to meet a charge relating to a date so far back as July 1915. We recognise the difficulty and would give every facility to the defence. If particulars had been requested, they would at once have been given. I cannot see that the prosecution (if it may be so called) is in any way to blame. The matter could not be brought to the Court's attention before it came to the notice of the Magistrate and it only came to light in 1917, when Sarju Singh's defence was taken. Har Prasad Singh has said that he believes that the Magistrate Mr. Razwi has taken part in the manufacturing of a false case against him by reason of some puerile friction over a club in the starting of which he (Har Prasad) was considerably concerned, and he has mentioned some instances in which there has been friction between them. He admits that it is only his belief; there is no real ground for even throwing any such suspicion on the Magistrate. The blame, however, is chiefly thrown upon the opposing faction headed by Raza Husain.
31. It is urged that we must accept the acquittal of Sheo Prasad by this Court as evidence that the charge against him was untrue, that therefore Har Prasad could have had no knowledge of Maiku and no notice to send for him and threaten him.
32. In the first place Sheo Prasad was by this Court given the benefit of the doubt which had entered the mind of the learned Judge who heard the appeal. There was by no means an honourable acquittal, if one may use the term. The man was convicted by the Judge who saw and heard the witnesses. Sheo Prasad no doubt is entitled to the benefit of the acquittal that he secured. We have had the advantage of seeing and hearing the witnesses in the present matter on the point to which they have testified and I personally have no hesitation in believing and accepting that evidence. I am not leaving out of view the atmosphere of intrigue in Banda and the connection of Raza Husain with the case, but I cannot accept that as alone sufficient ground for refusing to weigh the evidence and for rejecting it. It is good ground for close scrutiny and care. There is good and reliable evidence before me in addition to the evidence of Maiku and Sarju Singh.
33. The 2nd charge is supported by the evidence of Ram Nihore alone. I have already related the manner and occasion on which he made his complaint to the Magistrate on October 1st and the nature of the charge. Babu Har Prasad Singh has denied it in toto on cath. It is true that some 14 years ago Ram Nihore was convicted of robbery and sentenced to two years' rigorous imprisonment. He explains this by saying that there was trouble between him and a Police Officer in which the latter was injured on the head and as a result he was prosecuted and imprisoned. The man, however, is leading a respectable life as a contractor and pays income-tax. He gave this evidence quietly and easily and in a very convincing manner.
34. It is no doubt a case of oath against oath, but there are reasons which to my mind show that Ram Nihore's statement is not the result of collusion or conspiracy He is not a person who is mixed up as far as I can see with the factional strife of Banda. He lives in a house which stands a one at the gate of the Railway Station at Manikpur, many miles from Banda He no doubt visits the latter place from time to time on business.
35. The suggestion is that he enters into contracts in partnership with one Dhani Ram who was also a witness in Sarju Singh a case, and Dhani Ram is said to be a friend of Sarju, who, of course, is hostile to Har Prasad Singh Nothing has been placed before us to show that Dhani Ram and Ram Nihore are on such familiar terms with Sarju that Ram Nihore would agree to conspire and lend himself to a false charge against Har Prasad Singh.
36. Again if Ram Nihore's statement is false and the result of conspiracy, the conspiracy must have been hatched and action settled very promptly within two days Har Prasad Singh and Prag Dat set 29th. They had to change at Manikpur Where they had to wait for two hours or more. Assuming conspiracy, this fact would have to be discovered and Ram Nihore at Manikpur consulted and won over and prompted to make his false statement before he was examined as a witness on October 1st. This, of course is not quit impossible but highly improbable The time was very short, unless a brilliant idea struck some one who had learnt of Har Prasad's presence at Manikpur and thought it a good opportunity of making up a false case against the learned Pleader.
37. Nextly Ram Nihore on October 1st named two other persons as having been present when he was intimidated, Ganesh Prasad and Harbans Prasad one of whom was sometimes employed by him These persons, assuming, a conspiracy, would hardly have been named unless the conspirators were sure of them. Neither of these men has been called by either side in the present case. The Government Advocate states that they have refused to testify. Ram Nihore's statement was made to the Magistrate far too early to fit in with the suggestions of a conspiracy. He personally had no motive to invent the story. As against him, it is urged that he volunteered the statement after his evidence in Sarju Singh's case had been recorded I can see nothing in this to cause the slightest suspicion. From my experience as a Magistrate and a Judge for over 30 years I know that this is the usual way in which witnesses appeal to the Court for protection when threats have been held out to them, and one knows how often witnesses are intimidated especially, if influential persons are concerned. The Pleader has called three witnesses to support his statement that while at Manikpur on Saturday afternoon September 29th, 1917, he did not leave the platform, viz., Shah Said Ullah, the reader in the Court of the Session and Subordinate Judge, the Sub Assistant Surgeon (or Hospital Assistant) of the Banda Jail and Prag Dat, the warder of the Jail and the complainant in Sarju Singh's case. Their story is that they travelled in the same train to Manikpur on their way to Allahabad in company with Har Prasad Singh, Said Ullah travelled with him in the same compartment. They all waited on the platform together in front of the refreshment room and the only occasion on which they lost sight of Har Prasad was when he crossed to the waiting room on the opposite platform to answer a call of nature which took him about 10 or 12 minutes. I think it is correct to say that these three witnesses created a very unfavourable impression on all the Judges who constitute this Bench.
38. The reader Said Ullah was no doubt going home for the lower Court's vacation. He returned to Banda at the end of October.
39. He was present in Banda on duty when the Magistrate Mr. Rizwi took action against the leading Pleader practising in the Courts. It is said that the Magistrate's Court was filled with the members of the Bar. The knowledge of what had occurred must have spread rapidly and those persons connected with the Courts, especially the Judges' readers, must have learnt of it at once. Har Prasad has himself admitted that this must have been so. Yet Said Ullah would have us believe that he had not the slightest inkling that action was being taken against Har Prasad or the nature of the accusation that was being made against him until a week afterwards. And he does so, in order to explain the reply which he wrote to a letter written to him on November 6th, 1917, by Har Prasad Singh. In his letter Har Prasad wrote to the following effect, (The original is in vernacular): "You perhaps remember that you and I on September 29th went together from Banda to Allahabad in the same compartment at Manikpur. You and I sat on chairs in front of the refreshment room all the time till the train arrived. Please write down and let me know what you remember. I shall be grateful." There is no explanation in the letter of the reason why the request was made.
40. In reply Said Ullah wrote a detailed account of what he remembered, even mentioning the 10 or 12 minutes during which Har Prasad went to the waiting room and not forgetting to state that otherwise they did not leave each other's company for a second and he ended as follows: "But what need has arisen for you to make this inquiry? The facts are such that you know all about them yourself." The man must have been fully aware of the charge that had been preferred and I have no doubt that this letter and its reply have been made up by the trend of them to lend an air of truth and credibility to the witness evidence.
41. No doubt these witnesses travelled by the train but there was no good reason for them to keep so close a watch on the movements of Har Prasad Singh during the weary waiting of over two hours. Said Ullah says that after replying to the letter he went to Court, met Har Prasad Singh, questioned him and learnt for the first time what was happening and that he would have to give evidence. He is a member of Har Prasad's club--The George Coronation Club. He admits that the matter of Har Prasad's case was not such that he ordinarily would not hear of it for a week. He must have heard all about it. The Courts must have been ringing with the names. He is the Judge's reader. I have no hesitation in holding that this letter is a piece of manufacture. Ram Nihore's house is about 200 paces from the platform, and it would not have taken more than a few minutes to go there and return. The Sub Assistant Surgeon Abdul Shakur Khan was a shifty witness whose demeanour created a very unfavourable impression. He was taking his wife and family to Allahabad and he during the long wait located them in a side verandah of the refreshment room where they were screened from observation, being pardanashin, and admittedly from time to time he had to attend to them. Yet he is positive that Har Prasad was not out of his sight for more than two or three minutes at a time except when for 10 or 12 minutes he, Har Prasad, went to the waiting room. He was very positive, and it is curious how both he and Saidullah give the same estimate of the time occupied by the absence in the waiting room. This man was also one of Prag Dat's witnesses in the case against Sarju Singh in which Har Prasad appeared for the prosecution. He testified to a confession of guilt which he said Sarju had made in his presence when he tried to settle matters with Prag Dat. When pressed he finally had to admit that he would not swear positively that Har Prasad did not leave the platform for 10 minutes, but thinks that he did not do so. Prag Dat's statement is to the same effect. In his cross-examination he showed up badly. He fenced with the questions put to him and was evidently doing his best not to tell the truth. Of course the case against Har Prasad must be judged on the merits of the evidence produced against him, and not by the weakness of the defects in the evidence he has produced in his defence. He summoned a number of witnesses but examined only the above four persons. I have discussed the evidence against him and considered it and all the pleas taken on his behalf and I have no hesitation after full consideration in accepting that evidence and in holding that both charges have been established to my satisfaction.
42. The charges are serious. This class of offence, the intimidation and tutoring of witnesses, is only too common. In the ordinary individual it is bad enough. In the case of a member of the legal profession it is a far graver offence. It is unnecessary to dilate upon this. It shows that the Vakil is unfit to be a member of the honourable profession to which at present he belongs. The fact that he has in his defence produced evidence of a highly suspicious character, like the letter of November 6th, 1917, goes to show that his idea of the honour of his profession and its true standard of morality is a very low one. The production of such evidence in his case is sufficient in itself to disqualify for the Bar.
43. I would remove his name from the list permanently and direct him to deliver up his certificate forth with to the Registrar of the Court.
44. A plea of good previous character is made and certain certificates have been put forward. Against this must be set off the fact that this Pleader has once before been called upon (on the report of the Subordinate Judge) to show cause why this Court should not deal with him. He was the Pleader engaged in a Civil suit and purchased the property attached and sold in execution of his client's decree in his father's name.
45. He broke a very old and salutary rule of the Court the breach of which has been laid down to be professional misconduct. He pleaded that he acted under impulse and urged want of experience and previous good character (he was then of some five years standing), He was then let off with a warning. The man is astute and clever and has risen to local fame, bat the charges against him are so serious that I can see no other alternative to striking him permanently off the rolls.
46. The defect in his character is far too serious for leniency. This is entirely apart from the somewhat had character given to him by the District Magistrate.
Abdul Raoof, J.
47. After much anxious thought I have come to the same conclusion at which my learned brother Tudball has arrived. I have had the advantage of perusing his exhaustive judgment and I find myself in full agreement with him on all the points. I shall state my reasons briefly.
48. The facts on which these proceedings are based, came out in a most natural way in the course of the trial of a criminal case, King-Emperor through Prag Dat v. Sarju Singh. Mr. Har Prasadappeared for the prosecution in the case and Ram Nihore and Muhammad Siddiq, a Police Officer, were among the defence witnesses. The former stated at the close of his examination, after being sworn a second time, that Har Prasad had approached him at Manikpur where he had gone on his way to Allahabad and had asked him not to give evidence for the defence, threatening him at the same time with unpleasant consequences if he did not listen. It was argued that this incident had no bearing on the trial of the case, it was unnecessarily brought in with the object of implicating Har Prasad, and that it should not, therefore, be taken notice of. If the story of the threat was true, in my opinion it was quite natural that Ram Nihore should have brought it to the notice of the Court in the hope of getting some protection from it. The statement cannot be discredited merely on this ground. No reason has been suggested as to why Ram Nihore should have come forward to injure Har Prasad, excepting that a vague suggestion was made that he was a partner of Dhani, a friend of Sarju Singh, the accused person in the criminal case in which Har Prasad had appeared as a Vakil for the prosecution against him. In the cross-examination an attempt was made to show that he was a man of no substance and that he had been convicted once, for robbery and it was argued that he was, therefore, not a reliable witness, but this took place about 14 years ago. He is now carrying on the business of a thekadar and it is not shown that he is not leading a respectable life. To meet his evidence, three witnesses have been examined on behalf of Har Prasad, viz., Shah Saidullah, peshkar of the Court of the Subordinate Judge of Banda, Abdul Shakur, Sub-Assistant Surgeon attached to the Banda Jail, and Prag Datt, his client in the above-mentioned criminal case, who were his fellow-travellers on the same date, i, e., 29th September 1917, and by the same train. By their evidence it is sought to establish a sort of alibi. The gist of their evidence is that Har Prasad in their company remained all the time at the Manikpur Railway Station waiting for the Allahabad train and that he never absented himself from their view. They all state that he went out of their sight for 10 or 12 minutes only, when he went to the privy with a lota in his hand. They give the minutest details of his movements at the station. No reason is given as to why they should have kept such a close watch over him for more than 2 hours, and why they should have carried all these details in their memory all this time. It is difficult to believe this evidence. It bears the stamp of exaggeration and untruth.
49. In the course of the same trial, Muhammad Siddiq, a Police Officer, in his cross-examination disclosed that one Maiku alias Langra, a weighman of the Banda Bazar, was a witness for the prosecution in a previously decided case in which the Municipality of Banda had prosecuted one Sheo Prasad, a girdawr, for criminal breach of, trust, and his Pleader Mr. Har Prasad had sent for the witness at his house and tried to persuade him not to give evidence for the prosecution. Through the intervention of Sarju Singh whose aid the Police had secured, this attempt had failed. This is a separate charge brought against the Pleader and Maiku, Ejaz Husain, Sarju Singh and Muhammad Siddiq have been called as witnesses on behalf of the Crown. Maiku states that one evening at about 7 or 5 he was sent for by Har Prasad through a man whose name he did not know and was asked by him, under threat not to give evidence for the prosecution. He was subjected to a lengthy cross-examination and he stood the test well. He gave his evidence in a frank and easy manner and so far as his demeanour went, he left a favourable impression on my mind. Har Prasad's Counsel attempted to establish by the cross-examination of this witness that he had not been even near the house of Har Prasad, much less inside of it, and that, therefore, he was a tutored witness, I think the result in the cross-examination was quite the contrary. No discrepancy of any importance has been pointed out in his evidence but it has been urged that, as Sheo Prasad was eventually acquitted in appeal by the High Court and the evidence of Maiku was unfavourably criticised by the learned Judge who decided the appeal, his evidence in this case should not be acted upon. It is, however, clear from the judgment that a doubt was created in the mind of the learned Judge, who gave the benefit of the doubt to the accused and acquitted him. There was no positive finding that the charge was absolutely untrue and the evidence was false. It may be that socially he does not occupy a very high position in life, but supported, as his evidence is, by other corroborative evidence and circumstances, I see no reason to disbelieve it on the man point. The witness Ejaz Husain, who happened to arrive the same evening and at the same time in the office of Har Prasad, overheard the talk which the Pleader was having with Maiku. We are asked not to believe this witness, because he is dismissed servant of Kashi Nath, a client of Har Prasad, under whose advice he had been dismissed, and, therefore, bore ill-will towards him. Kashi Nath has been called as a witness on behalf of the Pleader to establish the theory of dismissal, but the impression left upon my mind about his evidence was that it rather went to establish quite the reverse. His letters, produced by the Crown, coupled with his answers in the cross-examination went to show that the man was still in his service and was trusted by him, although an unpleasantness had arisen for a time on account of the non-delivery of certain village papers which had resulted in a registered notice calling upon him to give up the papers. The address on the envelope and the contents of the letter, dated the 27th of August 1917, show that Kashi Prasad still utilized his services as a 'Karinda.' In this letter he asked him to come to Banda, as he was acquainted with the facts of a certain case. He stated in his deposition that he had gone to Har Prasad on the above-mentioned evening about some business of his master, but on being cross-examined on the point, he was unable to give the particulars of that business. Kashi Nath is a big Zemindar holding many villages and it may be presumed that he must have had many cases in which he might have been interested at one time or the other. Ejaz Husain might have gone to Har Prasad in connection with one of these cases. He cannot be expected to remember the particulars of the case at this distance of time and I do not think that his evidence must necessarily be discarded on account of his inability to give the details. The conversation which Har Prasad was carrying on with Maiku at the time was of an unusual character and it was not strange that Ejaz Hussain should have retained the incident in his memory. The notice and the reply to it given by Ejaz Husain were read out to us. He was not charged in it with any serious dereliction of duty and certainly it contained not even a hint of dismissal. Most of the papers demanded from him were subsequently delivered over by him. The reply to the notice to my mind gave a valid reason for not handing over the papers to the man sent by Kashi Prasad. I cannot believe that Ejaz Husain has come forward to give false evidence against Har Prasad for the reason suggested. After all, it is merely an inference which we are asked to draw, and I for my part do not think that the evidence affords any ground for such an inference. The inference suggested is too far-fetched and I refuse to disbelieve the evidence on the above ground.
50. It is, however, argued that the name of Maiku as a witness in Sheo Prasad's case was mentioned at a very late stage, i.e., not until the case had come before the trying Magistrate, that, therefore, Har Prasad could not have come to know that he was an evident or even a possible witness in the case. This argument ignores the fact that Har Prasad had been engaged at the very commencement to represent Sheo Prasad at the enquiry held by the Commissioner appointed by the Municipal Board and must be taken to have come to know all the necessary facts relating to the purchase of bad grain from Sheo Nath, It is difficult to understand that a man of Har Prarad's intelligence and experience would not have tried to find out all the possible evidence which would be produced against his client in any subsequent proceedings. We are, however, asked to believe that his interest in the matter had ceased after the enquiry by the Commissioner had come to an end, and he had no more to do with it until he was again employed by Sheo Prasad to defend him before the trying Magistrate. Having regard to the fact that the prosecution had been started by the Municipality, in which every one connected with the affairs of the Municipal Board must have taken more than a usual interest, it is unlikely that Har Prasad had no further concern with it after the proceedings before the Commissioner. Although there is no positive evidence on the point, it is easy to infer from the circumstances that he must have continued to advise his client Sheo Prasad in the matter all through and must have come to know that the man who had weighed the grain was at least a possible witness for the prosecution. As proved by the evidence of Har Prasad and other witnesses, there have been and even now there are two factions in the town of Banda among whom party feeling has been running high, Har Prasad belongs to one of these parties and the other party is headed by one Mir Raza Husain. It is argued that the present proceedings have been engineered by the party of Raza Husain with a view to bring about the discomfiture and the utter ruin of Har Prasad. Here again there is no positive evidence on the point, and we are simply asked to draw this inference from the circumstance that Mir Raza Husain has all along been taking a prominent part in prosecuting the case against him and in fact in this Court also he has been present ali the time during the hearing instructing the Counsel for the Crown. There may be some truth in it, but were it not for the fact that at time agencies do spring up which help the arm of malice in reaching the offender, many an offence would have remained undiscovered and the offender would have gone unpunished. Unless it is shown that the evidence given is untrue, and, therefore, ought not to be believed, I am not prepared to attach any weight to this argument. Can the mere fact that some of the enemies of Har Prasad have taken a prominent part in helping the Crown in this proceeding, justify us in rejecting the positive evidence which has been given against him? If Muhammad Siddiq and Sarju Singh are to be believed their evidence fully supports the statements made by Maiku and Ejaz Husain. Muhammad Siddiq has no connection with Banda now and the defence has not succeeded in proving by any positive evidence that he is or has ever been under the influence of Raza Husain. He gave his evidence in a very satisfactory manner and there is no valid reason for disbelieving him. Sarju Singh may be said to be somewhat mixed up in the affairs of the two parties at Banda, but his evidence in this case, supported as it is by the statement of Muhammad Siddiq who may be described as an independent witness, cannot be discredited on this ground alone.
51. In my opinion both the charges against. Har Prasad have been fully established. As regards the evidence for, the defence I am fully convinced that it is manufactured and wholly unreliable and Har Prasad has only aggravated his offence by producing such evidence before the Court.
52. The order of the Court is that Har Prasad be removed from practice as a Vakil. He is further ordered to hand up his certificate to the Registrar of the High Court to be cancelled.
Print Page
Allahabad High Court
In Re: Babu Har Prasad Singh, Vakil ... vs Unknown on 4 May, 1918
Equivalent citations: 46 Ind Cas 819
Bench: H Richards, Tudball, A Raoof
JUDGMENTHenry Richards, C.J.
1. In this case we are called upon to investigate two charges of alleged misconduct on the part of Babu Har Prasad Singh, who is stated to be the leading Pleader at Banda. The first charge relates to matters which are alleged to have taken place as far back as the year 1915. It would seem that in that year (and even now) there are two rival factions in the Municipality of Banda. Har Prasad was certainly associated with one of these parties, although he had ceased to be a member of the Municipal Board, before the happening of the matters to which I shall refer presently. Unfortunately there are strong indications that these factions were not wholly influenced by a wholesome rivalry to do what was best for the residents of Banda City. On the contrary Har Prasad contends that the present charges against him are altogether false and have been engineered by the opposing faction. In the year 1915 a charge was made against one Sheo Prosad of having defrauded the Municipality. This Sheo Prasad was in the employment of the Municipal Board and it was alleged against him that he had bought on behalf of the Municipal Board inferior gram at a low price and charged the Municipal Board the price of good gram. There can be no doubt that the case of Sheo Prasad was made a "party" case between the two rival factions. One party was anxious to have him prosecuted; the other party was anxious to shield him. An enquiry was held by the Municipality and Har Prasad appeared professionally for Sheo Prasad at this enquiry. In the end Sheo Prasad was committed to trial in the Court of Session and convicted. He appealed to the High Court and the conviction was set aside by a learned Judge. At the trial of Sheo Prasad one Maiku (otherwise Langra) was examined as a witness. The first charge against Har Prasad is that prior to the examination of Maiku he (Har Prasad) sent for him and told him that he should not give evidence and accompanied this order with an intimation that if he did give evidence it would be so much the worse for him. It is contended on behalf of Har Prasad that he labours under considerable difficulty in having now to meet and disprove matters which occurred as far back as the year 1915. This is undoubtedly true but the prosecution (if I may use the expression for want of a better) is not to blame because the interference with Maiku as a witness in a criminal case, if true, did not come to light in such a way that it could be reported to this Court until quite recently. It happened thus: A criminal charge was brought against one Sarju by a man named Prag Dat, a warder in the Banda Jail, alleging fraud in connection with the purchase of a cow. Sarju alleged amongst other things that this false case had been engineered against him by the leaders of one of the rival factions to which I have already referred, in consequence of certain action which he took in connection with the case of Sheo Prasad. The case was also made a 'party" case. A witness of the name of Ram Nihore was examined on behalf of Sarju, and at the conclusion of his evidence he stated that Har Prasad had come to his house which is at Manikpur quite close to the railway station and told him that he was not to appear as a witness on behalf of Sarju, and that if he did it would be worse for him or words to that effect, It is this statement by Ram Nihore which led to Har Prasad being reported to this Court and the allegation that Har Prasad attempted to interfere with Ram Nihore giving evidence in Sarju's case forms the basis of the 2nd charge against him. Har Prasad, as already stated, appeared for Sheo Prasad at the enquiry which the Municipality held. He subsequently appeared for him at the trial before the Court of Session. But Har Prasad says that he was not acting on his behalf in the interval between the enquiry by the Municipality and the trial at the Court of Session. Har Prasad also appeared professionally to support the prosecution against Sarju, but he states that the part he took was practically confined to making suggestions and that the conduct of the case was left in other hands. Maiku was examined before us in support of the first charge. He stated that he was sent for on a particular day, that in consequence of what the messenger said he went with the messenger in the evening to the house of Har Prasad and that Har Prasad then told him that he must not appear as a witness. He at once agreed not to do so. He stated that there was another person present whose name he did not know but who was the Karinda for a Zemindar of the name of Kashi Nath. The witness was cross-examined as to the time and the description of Har Prasad's house and premises. The witness answered these questions apparently correctly. His demeanour was good and he had all the appearance of a truthful witness. Maiku further stated that after he had had the interviews with Har Prasad, Sarju came to him and told him he must give evidence. He at once agreed. The next witness was a man called Ejaz Husain. He was the Karinda of Kashi Nath, and he stated that on a particular day in July 1915 he had gone to the house of Har Prasad to speak to him about legal business of Kashi Nath. I must here mention that admittedly Har Prasad conducts the greater part, if not the whole, of the legal business of Kashi Nath. He says that he found Maiku already there, that he heard the conversation which took place between Maiku and Har Prasad. Maiku went away after a short time and he (the witness) remained behind and talked over the business about which he had come. This witness was unable to mention the case or the nature of the business about which he had come to Har Prasad. He was cross-examined to show that he had already left the service of Kashi Nath in July 1915, and that, therefore, it was impossible that he could have come to speak to Har Prasad upon the business of Kashi Nath. He was also cross-examined to show that he having been subsequently re-appointed Karinda to Kashi Nath, he was dismissed a second time at the instigation of Har Prasad. The object of this last part of the cross-examination was to indicate a reason why Ejaz Husain might give false evidence against Har Prasad. Ejaz Husain admits that he ceased to be in the employment of Kashi Nath in the month of July 1915, but he says that he was not dismissed by Kashi Nath but that he left of his own accord. Kashi Nath was examined afterwards on behalf of Har Prasad and he produced a book which showed that a registered notice had been sent by him to Ejaz Husain. He produced the letter from Ejaz Husain in answer to his notice. From the answer which Ejaz Husain admits having sent it would appear that the registered notice was a notice requiring Ejaz Husain to hand over certain documents belonging to Kashi Nath which were in his possession as Karinda. The answer was a very proper answer and explained that the only reason why the documents were not handed over was that the agent sent by Kashi Nath for the documents refused to give a receipt. This notice was sent on or about the 19th of July 1916. Maiku is of course unable to state the exact date in July 1915 that he visited Har Prasad, but from other circumstances it would appear that if this interview took place at all it must have been about the 10th of July. Kashi Nath says that he dismissed Ejaz Husain in July. Neither Kashi Nath nor Ejaz Husain are able satisfactorily to give the exact date when Ejaz Husain ceased to be Karinda to Kashi Nath. It is admitted that whether Ejaz Husain was dismissed or ceased to be Karinda of his own accord, he did give up the employment in July and I am inclined to think that the employment must have come to an end some little time before the sending of the notice to give up the documents. My reason is that I think the ceasing to be employed as Karinda must have preceded the notice and I think this notwithstanding that Kashi Nath produced the book to fix the time when the employment ceased. This circumstance, coupled with the fact that Ejaz Husain is either unable or unwilling to state the nature of the business about which he went to Har Prasad, detracts to some extent from the value of his evidence. Siddik Husain, Sub-Inspector, was examined and stated that he got information that attempts would be made to tamper with the witness against Sheo Prasad and that in consequence of the information he approached Sarju, whom he knew to be a man who would be likely to have influence with Maiku, and that very shortly after Sarju had seen Maiku he took the precaution of having the evidence of Maiku recorded under Section 164 of the Code of Criminal Procedure. That the evidence was so recorded it in admitted. Sarju deposes to the fact that he did interview Maiku and learnt from him that Har Prasad had told him that he was not to give evidence. Maiku apparently without any hesitation then agreed that he would give evidence. Har Prasad gave evidence and absolutely denied having ever had any interview of any kind with Maiku. He stated that after Ejaz Husain had been re-employed in December 1917 by Kashi Nath, he in the month of February of this year strongly urged Kashi Nath not to keep Ejaz Husain. It appears that after Ejaz Husain in the year 1915 ceased to be in the employment of Kashi Nath, he went into the employment of one Debi Prasad, a nephew of Kashi Nath. There was some friction between the uncle and nephew, and Har Prasad says that he gave as a reason to Kashi Nath for not retaining Ejaz Husain that he was the mischief maker. Kashi Nath was not present when Ejaz Husain gave his evidence. The learned Advocate for Har Prasad professed to be taken completely by surprise by the evidence of Ejaz Husain. Kashi Nath was sent for from Banda and arrived and was examined in the case. He is apparently a respectable Zemindar. His evidence was not very satisfactory. A letter of his was put into his hand (dated March 1917). in which he addressed Ejaz Husain as "Karinda" and spoke to him about a case of his (Kashi Nath). Another letter, dated August 1917, was also produced and the two documents go to show that at the time the relations between Kashi Nath and Ejaz Husain were not at all unfriendly and that the letter had to do with Court work. There is a direct conflict between the evidence of Har Prasad and Kashi Nath as to the circumstances connected with the alleged dismissal of Ejaz Husain in February of the present year. Ejaz Husain states that he was never dismissed at all, and on the day be first gave his evidence he said that Kashi Nath actually came to the railway station with him when he was coming away to attend this Court. Kashi Nath says that the reason Har Prasad gave for advising him not to retain Ejaz Husain in his service was that he had not trusted him in 1915. He tol d us hat he never communicated to Ejaz Husain the fact that Har Prasad had advised that he should be dismissed, and that as a matter of fact he did not actually dismiss him. He says that he was no doubt influenced by what Har Prasad said, but the actual dismissal took place in this way that Ejaz Husain said that he was not satisfied with him (Kashi Nath) and that he (Kashi Nath) then said, well, brother, as you are not satisfied we had better part", or words to that effect. The discrepancy between Har Prasad and Kashi Nath on this matter is somewhat significant, because it relates to events which happened only a very short time ago. It was strongly urged on behalf of Har Prasad that it was very unlikely that he would have committed such a serious offence as to order Maiku not to give evidence in the presence of Ejaz Husain, and that if he wanted to interfere with a witness like Maiku he would not have done so directly. I think that these are matters which we certainly should consider. It was also contended that it was unlikely that Har Prasad would even know that Maiku was to be a witness, because his name had never been mentioned in the preliminary enquiry held by the Municipality nor at all until his evidence was recorded under Section
164. On the other hand the prosecution say that Maiku was an obvious witness from the very commencement. I am not satisfied that Maiku was an "obvious" witness, while on the other hand I see nothing in the least unlikely that Sheo Prasad should have told Har Prasad that Maiku was likely to be examined as a witness against him. If the case against Sheo Prasad was true, I think that it would be almost certain that Sheo Prasad would have told Har Prasad, who was his Vakil presumably taking a keen interest in his case. Mr. Peare Lal Banerji asked us to deal with the present case on the assumption that Sheo Prasad was innocent because he was acquitted by the High Court. I do not think that we can do this. Sheo Prasad is entitled to the full benefit of his acquittal, but I do not think that any person else is entitled to ask us to hold that the acquittal of Sheo Prasad conclusively demonstrates his innocence. The judgment of the High Court seems to have given Sheo Prasad the benefit of the doubt. One of the reasons for the acquittal was the supposed somewhat late appearance of Maiku as a witness. It is possible that the High Court's attention was not drawn to the fact that his evidence had to be recorded under Section 164 of the Code of Criminal Procedure, (i.e., as a witness who might be tampered with), and the High Court had not before it the evidence which we have bad in the present case that the witnesses were being tampered with. It appears that not only the evidence of Maiku but also of a number of other witnesses was recorded under Section 1 4. Mr. Peare Lal called our attention to the difficulty which his client is under in having to meet a charge which relates to matters which happened in the year 1915. While the prosecution are not to blame for this, I think it is a matter to which we should give careful consideration. A number of professional gentlemen appear for Har Prasad. It appears that they are giving their services gratuitously. One would have thought in the present case that one of the first things that would have been done would have been to have made an application to the prosecution for particulars as to the time and manner at and in which Har Prasad was alleged to have interfered with the witness Maiku. No particulars of any kind seem to have been asked for. The only thing which was done was a verbal request to the Government Advocate to give the names of the witnesses he intended to call, which request was complied with and amongst these witnesses the name of Ejas Husain was mentioned. Har Prasad is an experienced Pleader and if he was in the dark as to the charge against him, it ought to have occurred to him to ask for particulars.
2. I now come to the 2nd charge. This case also undoubtedly became a "party" case. Sarju was the accused and he alleged that the case was a false one got up against him on account of the active part which he had taken against Sheo Prasad. (I may mention here that Sarju was acquitted.) The evidence in support of the 2nd charge is confined to that of Ram Nihore. He states that his house is quite close to Manikpur Railway Station and that Har Prasad whilst waiting at the station came in and told him not to give evidence. It must be said in favour of this witness that he not only stated this when he gave evidence on behalf of Sarju but he also mentioned two persons who were present at the time. These two persons have not been called either by the prosecution or by the defence. Ram Nihore states that he refused to be influenced by Har Prasad and that he told the latter that he would give evidence. Har Prasad swears that he never went to the house of Ram Nihore and he produces two witnesses who accompanied him on the day he travelled from Banda to Allahabad. The allegation of the prosecution is that the visit to Ram Nihore was paid whilst Har Prasad was waiting at Manikpur Junction. Har Prasad had to change at Manikpur and remain there for about two hours before he got the train for Allahabad. The first witness was a man named Shah Saidullah. He is the Bench Reader in the Court of the Sessions Judge at Banda. The other man was Abdul Shakur, who is a Sub-Assistant Surgeon. Both of these witnesses stated that it was impossible for Har Prasad to have gone to the house of Ram Nihore without their being aware of the fact and that he did pot go. Considering that the house of Ram Nihore is very close to the station, one is a little inclined to doubt the evidence of these two witnesses. They had no particular reason for keeping Har Prasad under observation. A letter was produced written by Har Prasad to Saidullah, in which the former asked the latter to state his recollection of all that occurred during the wait at Manikpur. Saidullah writes his reply on the same sheet of paper and professes to be quite unaware of the reason why Har Prasad had asked him, and in his evidence in this Court Saidullah said that he did not know the reason. A week before this letter was written the Magistrate had made an order against Har Prasad in this very case, and considering the position of Har Prasad and the fact that Saidullah is the Bench Reader in the Sessions Court, I do not believe that Saidullah did not know the reason why Har Prasad had written to him. The Sub-Assistant Surgeon was mixed up in the case against Sarju. I do not think that either of these witnesses can be regarded as altogether independent witnesses upon whose testimony the Court should place implicit confidence. Nevertheless the evidence on the second charge is the oath of Ram Nihore against the oath of Har Prasad and Ram Nihore admits that he was convicted 14 years ago and sentenced to two years. The charge was robbery. Ram Nihore is a Brahman by caste. He looks respectable and notwithstanding his conviction he apparently occupies a respectable position and has outlived his "conviction. In his cross-examination he seemed to admit that he was justly punished for violence but not for stealing. We must consider why it was that Ram Nihore told about the alleged visit of Har Prasad. He volunteered the statement, A reasonable explanation would be that he apprehended that evil might befall him in consequence of his having given evidence. If he volunteered the statement for any other reason it would put a different complexion on his evidence and indeed on the whole case. In this connection we must not lose sight of the fact of the existence of the two hostile factions. Har Prasad contends that the present charge is the result of a conspiracy against him. Let us assume for a moment that what Ram Nihore says is untrue and that Har Prasad never, went to his house at Manikpur. This would mean that the enemies of Har Prasad conspired at or before the time of the charge against Sarju that Ram Nihore, when called as a witness for Sarju, should falsely volunteer the statement that Har Prasad had ordered him not to give evidence, in the hope that the statement would get him (Har Prasad) into trouble. Such a conspiracy seems highly improbable. I have approached the consideration of this case as if it were a criminal case in which a very serious charge was being made against Har Prasad, I think that we ought to give him the benefit of any reasonable doubt if we have any. I have given the case anxious consideration not only at the hearing but in the interval which has elapsed. I have discussed the case and the various points I have mentioned with my colleagues also. Most reluctantly I come to the conclusion that the charges are true.
Tudball, J.
3. Babu Har Prasad Singh, a Vakil, has been called upon to show cause why this Court should not deal with him in the exercise of its disciplinary powers under Section 8 of the. Letters Patent. A Deputy Magistrate of the first class has made a report in respect to his conduct on 21st November 1917, which was forwarded to this Court by the District Magistrate on 30th November 1917 and notice was issued on 21st January 1918 to the Vakil together with copies of both reports. The Magistrate preferred four charges Of these, two have not been pressed by the learned Government Advocate and our inquiry has been limited to the remaining two. These are charges of a similar nature, viz., that the Vakil in each case threatened a person who was about to give evidence in a criminal matter with a view to deter him from giving such evidence. In a way the two cases are connected with each other and I propose to state the facts which have led up to them. Babu Har Prasad Singh is said to be the leading Pleader practising in the Subordinate Courts at Banda, a small town where the headquarters of the civil administration of the District are situated. There is a Municipality governed by a Municipal Board. What is exactly meant by saying that Har Prasad Singh is the leading Pleader is not quite clear. He has a good local practice. He is fairly young and takes an active and keen part in local public matters and is a man of considerable local influence. He takes an interest in Municipal matters and at least up to 1912 or 1913 was a member of the Municipal Board. He was then unseated and there was some litigation about the election and at present he is not a member of the Board.
4. It is common ground that in respect to Municipal matters there were two contending parties in the town which, as is so often the case, devoted their time and energy not so much to furthering the public interests as to thwarting and defeating each other. There is little doubt that Har Prasad Singh was the leading spirit of the one and one Muhammad Raza, Husain that of the other party. Such was the state of local feeling in the year 1914 when an accusation was preferred by Muhammad Raza Husain in his official capacity against one Sheo Prasad, an employee of the Municipal Board. The latter was an officer who held in his hands an advance of public money and was entrusted among other duties with the purchase of grain for the feeding of the Board's draught cattle. The charge against him was that he had purchased "weevil eaten" gram at a cheap rate and had charged for good gram at full rates. The purchase was said to have been made from one Sheo Nath. An inquiry was directed by the Municipal Chairman to be made and Muhammad Raza Husain was entrusted with the collection of the evidence. Of course he had no powers to summon witnesses or enforce their attendance and he had to go about inquiring from persons and take their statements. Like all things Municipal in this country, there was a considerable waste of time owing to friction between the Chairman and Raza Husain, and the opposite faction took upon themselves the protection of Sheo Prasad. The latter admittedly engaged the service of Babu Har Prasad Singh to watch his interests in the inquiry. Matters dragged on till July 1915. The act charged amounted to a criminal offence and in that month the matter was made over to the Police for inquiry and necessary action. The Police inquiry was made over to the Kotwa Sub-Inspector Mohammad Saddik, who began it on 14th July 1915. In the course thereof he examined one Maiku (alias Langra) as a witness. As there were outside influences at work and he had information that attempts were being made to prevent the witnesses giving their evidence, Mohammad Saddik placed all the witnesses including Maiku before a Magistrate and caused their statements to be recorded under Section 164, Criminal Procedure Code. This is a step which is usually taken by a Police Officer when he has reason to believe that influence will be or is being brought to bear on a witness to prevent him testifying in Court. The case was then placed by the Police Officer for inquiry before a Magistrate who committed Sheo Prasad for trial to the Court of Session. The Sessions Judge at the trial found him guilty and convicted and sentenced him. Babu Har Prasad Singh was a witness for the defence of Sheo Prasad and gave evidence on his behalf. At both the inquiry and trial Maiku gave evidence for the prosecution, swearing that he was the weigh man who actually weighed the gram which had been sold by Sheo Nath to Sheo Prasad. He testified as to its quality. He is a professional licensed weighman who receives his fee at the time of weighment. Sheo Nath also followed the same profession, but the gram that he sold was alleged to be his own personal property. He had had it in his possession for some time and he sold it cheaply according to the prosecution case, because it had been attacked by weevils. It is obvious that if this were true, the man who actually weighed the gram must have seen and recognised its condition. It is equally obvious to one who has any knowledge of how grain dealings in an Indian market are carried out and is experienced in investigating crime that in such a case as Sheo Prasad's, the weighman would be a witness of some importance one way or the other. At the Magisterial inquiry and at the trial in the Court of Session Babu Har Prasad Singh appeared and acted for Sheo Prasad. The latter appealed to this Court and the learned Judge who heard the appeal considered that there was room for considerable suspicion. He criticised the action of Raza Husain in the matter, laid stress on the fact that Maiku had not been examined as a witness at the Municipal inquiry and hesitating to accept the evidence he gave the accused the benefit of the doubt in his mind and acquitted him. The date of the High Court's order is the 15th March 1916. This closed the first phase of the battle. It had a sequel. The Police Officer Mohammad Saddik was transferred to another District and in the first half of 1917, a charge of cheating in respect to a cow was preferred by one Prag Dutt, a warder at the Banda Jail, against one Sarju. Singh. The latter is a fairly well-to-do resident of Banda who deals in grain, etc., and who supplied grain on contract to the Jail. Prag Datt's case was shortly that Sarju Singh had asked him to sell him a cow for Rs. 30 saying that it was required for the Civil Surgeon, that he, Prag Dat, said that if it was wanted for the Civil Surgeon he could have it for nothing and that Sarju Singh took it. Later on he discovered that Sarju Singh had lied to him and he put the matter into the hands of the Police. The latter after making enquiry sent the case up for trial to the Court of Babu Shimbhu Narain in May 1917. Sarju Singh for certain reasons objected to the case being tried by that Magistrate and succeeded in securing its transfer to the Court of Mr. S.M.H. Rizwi, a Muhammadan gentleman who finally decided the case on October 31st 19 17, acquitting Sarju Singh.
5. By reason of what came to light during the course of this trial the Magistrate "at once" took action against Babu Har Prasad Singh. He at first issued notice to the Pleader and began an inquiry. Objection was apparently taken to his jurisdiction and he at once stopped his inquiry and submitted his report on November 21st 1917, through the District Magistrate to this Court.
6. Sarju Singh in his defence pleaded that he had purchased the cow for Rs. 40 from Prag Dat, that he had paid down Rs. 18 and had subsequently paid the balance of Rs. 22 and obtained a receipt for the whole in the presence of certain persons, Dhani Ram Ram Nihore, etc.
7. He filed a long written statement, explaining how his relations with the Subordinate Jail staff had become strained and why they were interested in bringing a false charge against him. He further alleged in paragraph 10 thereof that certain persons, of whom Babu Har Prasad and Kashi Nath were two, bore him a grudge by reason of the part he had taken in assisting the Police in the enquiry made in 1915 in Sheo Prasad's case. Now in the case based on the complaint of Prag Dat, Babu Har Prasad Singh was engaged by Prag Dat to prosecute Sarju Singh and it was and still is the latter's complaint that Babu Har Prasad Singh had a personal as well as a professional interest in the matter and was trying to secure his (Sarju's) conviction on a false charge because he (Sarju) had helped to secure the conviction of Sheo Prasad. In his defence Sarju Singh summoned Inspector Muhammad Saddik and Ram Nihore amongst other witnesses. Muhammad Saddik testified to the fact that while he was investigating the case against Sheo Prasad he got information that Babu Har Prasad Singh was attempting to prevent Maiku giving evidence, that as Sarju Singh was a person who in the course of business had dealings with Maiku and had considerable influence over him, he approached him and asked him to use his influence over Maiku to get the latter to be firm and to tell the truth and Sarju Singh did help him and spoke to Maiku. This evidence was given on October 2nd, 1917. On October 1st, i.e, the day before, Ram Nihore had been examined and had testified to the payment of Rs. 22 and the execution of a receipt. After his evidence had been recorded, read over to and signed by him, he turned to the Magistrate and appealed to him. He said that on Saturday, September 29th i.e., two days before, Babu Har Prasad Singh and Prag Dat bad both come to his house (which is just outside the Railway Station at Manikpur) in the afternoon and that the former, after asking him whether he was a witness in Sarju Singh's case and being informed that he was, had told him that he was not to give evidence otherwise he would get into serious trouble (serban hoge).
8. On hearing this the Magistrate at once placed him on oath again and recorded his statement on the point. Ram Nihore mentioned two person, Ganesh Prasad and Harbans Prasad, as having been present on the occasion. The complainant Prag Dat was clearly present in Court when this took place. He has admitted that he was in Court that day so long as the hearing lasted and record also mentions this, but he says he did not hear the statement made. Babu Har Prasad Singh was not in Court. The cross-examination of Ram Nihore was postponed to October 2nd to enable Har Prasad to cross-examine him, but as the latter did not appear on October 2nd, the witness was cross-examined by the Court Inspector who did not question him about the incident of September 29th.
9. Babu Har Prasad Singh appeared at the trial on October 3rd and subsequent dates till the decision on October 31st (vide the record).
10. Though he must have been well aware of the accusations made against him, he up to October 31st made no protest in Court or attempt to deny the truth of Ram Nihore's statement.
11. The Magistrate after the decision immediately issued notice to Babu Har Prasad Singh under the Legal Practitioners Act and commenced an inquiry. He subsequently, as I have stated above, found that he had no jurisdiction and reported the matter for the orders of this Court. We have made the inquiry and examined the evidence.
12. The two charges are:
(1) that on or about the 10th July 1915 he, Har Prasad Singh, in his own house at Banda did send for and intimidate the, witness Maiku alias Langra to prevent him giving evidence against Sheo Prasad;
(2) that on September 29th, 1917, at Manikpur he similarly intimidated Ram Nihore to prevent him giving evidence on behalf of Sarju Singh, Muhammad Saddik Inspector and Ram Nihore.
13. Babu Har Prasad in his defence has given evidence and has examined only four out of the large number of witnesses summoned on his behalf. Maiku's evidence is to the effect that a few (5 or 6) days before he was examined by the Police in the course of their investigation in July 1915, Babu Har Prasad Singh sent a man to his house who took him to Har Prasad's house, It was evening time, about 7 or 8 p. M. He was taken to the Vakil's office. Har Prasad Singh told him that he was not to give evidence in Sheo Prasad's case or he would cause him to be sent to jail. He acquiesced as most men in his position in this country would have done. The only person who ever heard the conversation was the Karinda of Babu Kashi Nath, whom he knew by sight but not by name.
14. A few days after, Sarju Singh came to him and questioned him. He told him of Har Prasad's threat. Sarju Singh told him not to be afraid but to stick to the truth. He was then examined by the Police and was also placed before a Magistrate, who recorded his statement in the matter of Sheo Prasad.
15. The witness gave his evidence in a very satisfactory manner and stood his cross-examination well. It was stated that he had no knowledge of Har Prasad's house and had never been inside of it. He was closely cross-examined on the point, but his manner and his face and the way in which he gave his description showed clearly that his statement on the point was true. No evidence of any sort has been called to show that he has made even any errors on this point. The man, of course, is only a weighman and persons of his class can easily he bought over to give evidence. It is true that in the course of the Municipal inquiry he was not brought forward and examined, but no weighman apparently was examined and it is obvious that a weighman is employed when grain is purchased. It was, we are told, Sheo Prasad's case that he personally purchased no grain but that all purchases were made by his co-accused in that case, a Municipal sweeper. Sheo Nath, the person who was said to have sold the grain, was apparently examined during the Municipal inquiry but Maiku seems not to have been named. Sheo Nath is now dead and cannot be examined. It has been urged that Har Prasad Singh could have had no knowledge whatsoever even of Maiku's existence, that he had nothing to do with the matter after the Municipality had decided to prosecute until it came into Court and, therefore, he could not possibly have sent for Maiku. In the state of affairs existing at Banda in regard to Municipal matters and the leading position, which Har Prasad occupied, I cannot believe this. He fought for Sheo Prasad throughout and if the case against the latter was a true one, Sheo Prasad and Har Prasad would most certainly have understood the importance of Maiku as a witness. He actually handled the grain (assuming the case to have been a true one) and must have seen and recognised that the grain was weevil eaten. One cannot mistake grain of that kind. The chief point against him is that he did not come forward in the course of the somewhat amateur inquiry made by an Indian Municipal member. His statement, moreover, does not stand alone. It is supported by the evidence of Sarju Singh and Muhammad Saddik and directly corroborated by that of Ejaz Husain. I will discuss the value of their statements later. There is one fact which cannot be denied, viz., that the Police deemed it necessary to have the statements of all the witnesses recorded by a Magistrate at the latter's house.
16. The witness also is subject to the influence of Sarju Singh who at present is embittered against Har Prasad in view of Prag Dat's case against him, but the matter that is now before us was put forward for the defence in that case and Muhammad Saddik's evidence in the matter was recorded.
17. Sarju Singh has testified to the part he took in that matter at the request of the Police Officer. His house is near the Police Station. He knew the Kotwal and was on friendly terms with him. He dealt in grain and of course had concern with the licensed weighmen of the bazaar. The Police Officer sought his assistance in the matter and he gave it, with the result that he incurred the wrath of the party who sought to protect Sheo Prasad. When he was attacked, he defended himself and brought the matter to light. It is highly probable that the opposite party assisted him. His statement is strongly supported by the evidence of Muhammad Saddik, Inspector of Police. This officer is no longer in the Banda District. He was transferred sometime ago, He has testified to the manner in which he invoked Sarju Singh's assistance. He declined to give the name of the person who gave him information in respect to Har Prasad Singh's alleged action and as a Police Officer he is justified in his refusal. He gave his testimony in 1917 in Sarju Singh's case.
18. We are asked to disbelieve him because he made no entry in his diary about Har Prasad's alleged action and the steps he took to counter it, and it is faintly hinted (but in no degree proved) that the witness is a friend of M. Raza Husain who is hostile to Har Prasad Singh.
19. There is no force in the plea as to the diary. The matter is one that one officer might record and another might not. No rule exists on the point and the witness' action in having the statements recorded under Section 164, Criminal Procedure Code, is corroboration of his word.
20. The other point has still less force. Some years prior to 1897 this witness was a Police clerk in the District of Hamirpur before he was ever stationed at Banda. A charge under Section 330, Indian Penal Code was preferred against him and the case was committed for trial to the Court of Session at Banda. He was honourably acquitted and has since risen to his present rank. He says that many persons in Banda took an interest in his case. To his knowledge Raza Husain did not assist him in the matter. He did not then know Raza Husain and if he took any interest in the case he, the witness, had no knowledge. This is the only attempt to show a connection between the two men. The witness gave his evidence in a very satisfactory manner and I have no hesitation in Holding that he has told us the truth.
21. There remains on this point the important witness Ejaz Husain. This witness admittedly had been in 1915 a Karinda of Babu Kashi Nath for several years. He says that early in July 1915, he went one evening about 7 or 8 P.M. on his master's business to Babu Har Prasad Singh's house. He went to his office, he found Maiku and Har Prasad Singh present and he heard the latter tell the former that he was not to give evidence or he would get him into jail. Maiku acquiesced and went away. He did his business with the Pleader and also left. He says that he subsequently mentioned the matter to his master Babu Kashi Nath at the bistar of one Abdul Hai petition-writer, who also heard him mention it. The witness is unable to tell us what was the business about which he had to see the Pleader that evening. Babu Har Prasad totally denies the incident and it is his case that in July 1915 this man was not in Kashi Nath's employ, that Kashi Nath subsequently in the end of 1917 again re-employed the man but in February 1918 again dismissed him on the advice of Har Prasad Singh and the man has, therefore, now come forward by reason of ill-will at the instigation of Raza Husain to testify falsely. He says that the man after his first dismissal in 1915 took service with Lala Debi Prasad, the nephew of Kashi Nath, and by intrigue caused trouble between the uncle and nephew and was dismissed by the latter, that he (Har Prasad) called Kashi Nath's attention to this fact and got him to dismiss the man in February 1918, for this reason. To establish those two points he took time to produce Kashi Nath and examined him as a witness. We have had before as the two men Ejaz Husain and Kashi Nath. We have seen and heard them both, and I have no hesitation in saying that of the two Ejaz Husain is far the better and more truthful witness. As compared with Kashi Nath who is an Honorary Magistrate and pays Rs. 15,000 Government revenue, while he is only a Karinda, he gave his evidence easily and straightforwardly, whereas the Honorary Magistrate fought repeatedly with the questions put to him, would not answer at once but repeatedly prevaricated and was finally out of his own mouth convicted of having said what was not true on at least one point. Ejaz Husain says that it was in July 1915 that he left the service of Kashi Nath but that he was in that service when the incident to which he testifies took place. Now the Police inquiry commenced on 14th July 1915 and the incident occurred according to the evidence about 5 or 6 days before, i.e., about July 9th or 10th at the utmost. He admits that he then for about 18 months took service with Lala Debi Prasad and then again in February 1917 was employed by Kashi Nath and up to the date on which he gave his evidence before us had not been dismissed, though he had not by reason of illness done any work for about a month, i.e., in March 1918. He is employed in the management of certain villages and he still has in his possession his accounts and village papers, Kashi Nath has produced some account books and a copy of a notice which he sent to Ejaz Husain on July 19th, 1915, and he says that it was in July that he dismissed the man. He has nowhere stated that he dismissed him before July 19th, 1915, and the notice which has been read to us nowhere contains an order of dismissal or even hints at it. We are asked to infer it. The notice was sent because the man had delayed in sending in his annual papers and Kashi Nath has admitted that he only dismissed him because he had so delayed. Ejaz Husain admits having received this so called notice a few days after the 19th July and admits the answer to it which was put before us. That answer is a straightforward one and explained the delay by stating that the agent sent by Kashi Nath to fetch the papers had refused to give a receipt for them and so he had not handed them over. Kashi Nath admits that the papers were ultimately handed over. Ejaz Husain has stated also that there had been some dispute about the rate of his salary for some two months prior to this and so he retired.
22. We are asked to hold on this evidence that the man was not doing Kashi Nath's work on July 10th or 9th and therefore could not have gone to Har Prasad's house. The evidence to my mind shows that the dismissal was subsequent to July 19th and not prior to it. Kashi Nath cannot fix any date earlier than July 19th.
23. Stress is laid on the fact that Ejaz Husain cannot remember what his business was with Har Prasad on that evening. I do not think it fair on a witness to reject his evidence on so faint a reason as this. Kashi Nath wished us to believe that Ejaz Husain had no concern with any Court work, but that his duties were concerned only with the management of certain villages. Har Prasad Singh has admitted that on few occasions the man had been to see him. He (Har Prasad Singh) admittedly had been engaged for some 8 or 10 years as Kashi Nath's Pleader for the purpose of cases in the various Courts. Kashi Nath, however, was faced with the letter of 27th August 1917. He admitted that he wrote it and in the body of it is an order to Ejaz Husain to come to headquarters at once as he was required for a certain criminal case about which he had full knowledge and which he was to prosecute, The first point is, therefore, not established. The second plea is still less established than the first.
24. Har Prasad says that he called Kashi Nath's attention to the fact that the man was the person who had caused trouble between him and his nephew and that he ought not to have re-employed him and should get rid of him.
25. Kashi Nath's statement is quite different. Har Prasad (he says) asked him why he had again taken on a man whom he had had to dismiss once because he could not trust him and that it was most inadvisable. Kashi Nath adds that he might have retained the man if it had not been for this advice and in fact he did not tell him why he was parting with him; that the man was displeased with him and so he said, well, brother, as you are displeased with me, we had better part". Ejaz Husain denies this. Kashi Nath has to admit that he has not taken accounts or the village papers from the man, which is curious if he was dismissed in February 1918. I much prefer the evidence of Ejaz Husain on the point. The old gentleman cut a very poor figure in the witness box and when he found himself being tripped up he took refuge behind the stone wall of "I don't remember".
26. He swore most positively that Ejaz had not been re-employed by him until December 1917, though he had been approached by the man from September 1917 with a request for re-employment. He was very positive that he had not made use of his service between February and December 1917 and had paid him no salary. He had to admit that he wrote the two letters of 27th March 1917 and 27th August 1917. The first is not of much importance beyond evidencing friendly relations. The second is addressed to Ejaz Husain as "Karinda" and the address is one of Kashi Nath's own villages. It directs him to come as a certain criminal case was coming on for hearing on August 29th, 1917, and his presence was necessary as he was cognisant of all the facts of the case and that he was to bring as much ghee and money as he had collected and to arrange for the collection of the rest and that he was to come quickly to attend to and prosecute the case." The letter proves beyond doubt that Ejaz Husain was his Karinda in August 1917 and was working on his estate. The latter says that he was re-engaged from February 1917 and I do not hesitate to believe him. Kashi Nath after seeing the letter admitted that perhaps he had taken some work from him now and again and had made him a gift of money in exchange, but adhered to his statement that he did not regularly employ him until December 1917. The witness from, the manner in which he gave his evidence was clearly not telling the truth. He admitted that he had trusted the man when he was in his employ, that there was nothing against him except his delay in submitting his papers, that there was no friction between them and that if Har Prasad had not spoken to him he would probably have retained his services, but he was not at all surprised or puzzled that so great a personage as Har Prasad should have troubled himself to get a lowly servant thus dismissed.
27. He knew that Ejaz Hussain was summoned as a witness in this case against Har Prasad as the summons had come. He did not discuss the matter with him. He could not remember if he went to the station with him when the man left Banda by train (the man says he did, and this happened only a few days before the evidence was given).
28. The witness adds that he belongs to neither of the two factions in Banda, that when he saw how matters were trending he resigned his membership" of the Board and out himself off from them entirely. I have gone at somewhat great length into the evidence of these two men for a great deal depends on whether Ejaz Hussain is to be believed or not. He only hesitated once and that was when he was asked whether (the matter being an old one) he had recently made a statement on the point to any one. He admitted a bit reluctantly that he had been taken by Raza Husain to Mr. Hoskins (who appears with the Government Advocate) after his arrival in Allahabad and had made a statement to him, but on the whole his evidence was given easily without hesitation or prevarication and I accept it. It is pleaded that this man came as a surprise to the defence and they had no idea of the matters to which he was to testify. There is little force in this plea, for the learned Government Advocate states that the man's evidence was obtained on an inquiry made by a Tahsildar Magistrate, that he himself gave a list of his witnesses to the gentlemen who appear for Har Prasad Singh prior to the Easter Vacation and had expressed his readiness to supply any information desired on any point, but no one had approached him.
29. The applications for the summoning of witnesses by both sides were made to this Court on April 2nd last, The learned gentlemen who have appeared for Har Prasad Singh at no time applied (as they could have done) for any further particulars. Even during the hearing of the case they took time to produce Kashi Nath, but did not deem it advisable or necessary to ask for any further time to meet the case against their client. We would readily and willingly have given further time on decent cause being shown, nor is any further time even now requested.
30. Beyond doubt it is far more difficult to meet a charge relating to a date so far back as July 1915. We recognise the difficulty and would give every facility to the defence. If particulars had been requested, they would at once have been given. I cannot see that the prosecution (if it may be so called) is in any way to blame. The matter could not be brought to the Court's attention before it came to the notice of the Magistrate and it only came to light in 1917, when Sarju Singh's defence was taken. Har Prasad Singh has said that he believes that the Magistrate Mr. Razwi has taken part in the manufacturing of a false case against him by reason of some puerile friction over a club in the starting of which he (Har Prasad) was considerably concerned, and he has mentioned some instances in which there has been friction between them. He admits that it is only his belief; there is no real ground for even throwing any such suspicion on the Magistrate. The blame, however, is chiefly thrown upon the opposing faction headed by Raza Husain.
31. It is urged that we must accept the acquittal of Sheo Prasad by this Court as evidence that the charge against him was untrue, that therefore Har Prasad could have had no knowledge of Maiku and no notice to send for him and threaten him.
32. In the first place Sheo Prasad was by this Court given the benefit of the doubt which had entered the mind of the learned Judge who heard the appeal. There was by no means an honourable acquittal, if one may use the term. The man was convicted by the Judge who saw and heard the witnesses. Sheo Prasad no doubt is entitled to the benefit of the acquittal that he secured. We have had the advantage of seeing and hearing the witnesses in the present matter on the point to which they have testified and I personally have no hesitation in believing and accepting that evidence. I am not leaving out of view the atmosphere of intrigue in Banda and the connection of Raza Husain with the case, but I cannot accept that as alone sufficient ground for refusing to weigh the evidence and for rejecting it. It is good ground for close scrutiny and care. There is good and reliable evidence before me in addition to the evidence of Maiku and Sarju Singh.
33. The 2nd charge is supported by the evidence of Ram Nihore alone. I have already related the manner and occasion on which he made his complaint to the Magistrate on October 1st and the nature of the charge. Babu Har Prasad Singh has denied it in toto on cath. It is true that some 14 years ago Ram Nihore was convicted of robbery and sentenced to two years' rigorous imprisonment. He explains this by saying that there was trouble between him and a Police Officer in which the latter was injured on the head and as a result he was prosecuted and imprisoned. The man, however, is leading a respectable life as a contractor and pays income-tax. He gave this evidence quietly and easily and in a very convincing manner.
34. It is no doubt a case of oath against oath, but there are reasons which to my mind show that Ram Nihore's statement is not the result of collusion or conspiracy He is not a person who is mixed up as far as I can see with the factional strife of Banda. He lives in a house which stands a one at the gate of the Railway Station at Manikpur, many miles from Banda He no doubt visits the latter place from time to time on business.
35. The suggestion is that he enters into contracts in partnership with one Dhani Ram who was also a witness in Sarju Singh a case, and Dhani Ram is said to be a friend of Sarju, who, of course, is hostile to Har Prasad Singh Nothing has been placed before us to show that Dhani Ram and Ram Nihore are on such familiar terms with Sarju that Ram Nihore would agree to conspire and lend himself to a false charge against Har Prasad Singh.
36. Again if Ram Nihore's statement is false and the result of conspiracy, the conspiracy must have been hatched and action settled very promptly within two days Har Prasad Singh and Prag Dat set 29th. They had to change at Manikpur Where they had to wait for two hours or more. Assuming conspiracy, this fact would have to be discovered and Ram Nihore at Manikpur consulted and won over and prompted to make his false statement before he was examined as a witness on October 1st. This, of course is not quit impossible but highly improbable The time was very short, unless a brilliant idea struck some one who had learnt of Har Prasad's presence at Manikpur and thought it a good opportunity of making up a false case against the learned Pleader.
37. Nextly Ram Nihore on October 1st named two other persons as having been present when he was intimidated, Ganesh Prasad and Harbans Prasad one of whom was sometimes employed by him These persons, assuming, a conspiracy, would hardly have been named unless the conspirators were sure of them. Neither of these men has been called by either side in the present case. The Government Advocate states that they have refused to testify. Ram Nihore's statement was made to the Magistrate far too early to fit in with the suggestions of a conspiracy. He personally had no motive to invent the story. As against him, it is urged that he volunteered the statement after his evidence in Sarju Singh's case had been recorded I can see nothing in this to cause the slightest suspicion. From my experience as a Magistrate and a Judge for over 30 years I know that this is the usual way in which witnesses appeal to the Court for protection when threats have been held out to them, and one knows how often witnesses are intimidated especially, if influential persons are concerned. The Pleader has called three witnesses to support his statement that while at Manikpur on Saturday afternoon September 29th, 1917, he did not leave the platform, viz., Shah Said Ullah, the reader in the Court of the Session and Subordinate Judge, the Sub Assistant Surgeon (or Hospital Assistant) of the Banda Jail and Prag Dat, the warder of the Jail and the complainant in Sarju Singh's case. Their story is that they travelled in the same train to Manikpur on their way to Allahabad in company with Har Prasad Singh, Said Ullah travelled with him in the same compartment. They all waited on the platform together in front of the refreshment room and the only occasion on which they lost sight of Har Prasad was when he crossed to the waiting room on the opposite platform to answer a call of nature which took him about 10 or 12 minutes. I think it is correct to say that these three witnesses created a very unfavourable impression on all the Judges who constitute this Bench.
38. The reader Said Ullah was no doubt going home for the lower Court's vacation. He returned to Banda at the end of October.
39. He was present in Banda on duty when the Magistrate Mr. Rizwi took action against the leading Pleader practising in the Courts. It is said that the Magistrate's Court was filled with the members of the Bar. The knowledge of what had occurred must have spread rapidly and those persons connected with the Courts, especially the Judges' readers, must have learnt of it at once. Har Prasad has himself admitted that this must have been so. Yet Said Ullah would have us believe that he had not the slightest inkling that action was being taken against Har Prasad or the nature of the accusation that was being made against him until a week afterwards. And he does so, in order to explain the reply which he wrote to a letter written to him on November 6th, 1917, by Har Prasad Singh. In his letter Har Prasad wrote to the following effect, (The original is in vernacular): "You perhaps remember that you and I on September 29th went together from Banda to Allahabad in the same compartment at Manikpur. You and I sat on chairs in front of the refreshment room all the time till the train arrived. Please write down and let me know what you remember. I shall be grateful." There is no explanation in the letter of the reason why the request was made.
40. In reply Said Ullah wrote a detailed account of what he remembered, even mentioning the 10 or 12 minutes during which Har Prasad went to the waiting room and not forgetting to state that otherwise they did not leave each other's company for a second and he ended as follows: "But what need has arisen for you to make this inquiry? The facts are such that you know all about them yourself." The man must have been fully aware of the charge that had been preferred and I have no doubt that this letter and its reply have been made up by the trend of them to lend an air of truth and credibility to the witness evidence.
41. No doubt these witnesses travelled by the train but there was no good reason for them to keep so close a watch on the movements of Har Prasad Singh during the weary waiting of over two hours. Said Ullah says that after replying to the letter he went to Court, met Har Prasad Singh, questioned him and learnt for the first time what was happening and that he would have to give evidence. He is a member of Har Prasad's club--The George Coronation Club. He admits that the matter of Har Prasad's case was not such that he ordinarily would not hear of it for a week. He must have heard all about it. The Courts must have been ringing with the names. He is the Judge's reader. I have no hesitation in holding that this letter is a piece of manufacture. Ram Nihore's house is about 200 paces from the platform, and it would not have taken more than a few minutes to go there and return. The Sub Assistant Surgeon Abdul Shakur Khan was a shifty witness whose demeanour created a very unfavourable impression. He was taking his wife and family to Allahabad and he during the long wait located them in a side verandah of the refreshment room where they were screened from observation, being pardanashin, and admittedly from time to time he had to attend to them. Yet he is positive that Har Prasad was not out of his sight for more than two or three minutes at a time except when for 10 or 12 minutes he, Har Prasad, went to the waiting room. He was very positive, and it is curious how both he and Saidullah give the same estimate of the time occupied by the absence in the waiting room. This man was also one of Prag Dat's witnesses in the case against Sarju Singh in which Har Prasad appeared for the prosecution. He testified to a confession of guilt which he said Sarju had made in his presence when he tried to settle matters with Prag Dat. When pressed he finally had to admit that he would not swear positively that Har Prasad did not leave the platform for 10 minutes, but thinks that he did not do so. Prag Dat's statement is to the same effect. In his cross-examination he showed up badly. He fenced with the questions put to him and was evidently doing his best not to tell the truth. Of course the case against Har Prasad must be judged on the merits of the evidence produced against him, and not by the weakness of the defects in the evidence he has produced in his defence. He summoned a number of witnesses but examined only the above four persons. I have discussed the evidence against him and considered it and all the pleas taken on his behalf and I have no hesitation after full consideration in accepting that evidence and in holding that both charges have been established to my satisfaction.
42. The charges are serious. This class of offence, the intimidation and tutoring of witnesses, is only too common. In the ordinary individual it is bad enough. In the case of a member of the legal profession it is a far graver offence. It is unnecessary to dilate upon this. It shows that the Vakil is unfit to be a member of the honourable profession to which at present he belongs. The fact that he has in his defence produced evidence of a highly suspicious character, like the letter of November 6th, 1917, goes to show that his idea of the honour of his profession and its true standard of morality is a very low one. The production of such evidence in his case is sufficient in itself to disqualify for the Bar.
43. I would remove his name from the list permanently and direct him to deliver up his certificate forth with to the Registrar of the Court.
44. A plea of good previous character is made and certain certificates have been put forward. Against this must be set off the fact that this Pleader has once before been called upon (on the report of the Subordinate Judge) to show cause why this Court should not deal with him. He was the Pleader engaged in a Civil suit and purchased the property attached and sold in execution of his client's decree in his father's name.
45. He broke a very old and salutary rule of the Court the breach of which has been laid down to be professional misconduct. He pleaded that he acted under impulse and urged want of experience and previous good character (he was then of some five years standing), He was then let off with a warning. The man is astute and clever and has risen to local fame, bat the charges against him are so serious that I can see no other alternative to striking him permanently off the rolls.
46. The defect in his character is far too serious for leniency. This is entirely apart from the somewhat had character given to him by the District Magistrate.
Abdul Raoof, J.
47. After much anxious thought I have come to the same conclusion at which my learned brother Tudball has arrived. I have had the advantage of perusing his exhaustive judgment and I find myself in full agreement with him on all the points. I shall state my reasons briefly.
48. The facts on which these proceedings are based, came out in a most natural way in the course of the trial of a criminal case, King-Emperor through Prag Dat v. Sarju Singh. Mr. Har Prasadappeared for the prosecution in the case and Ram Nihore and Muhammad Siddiq, a Police Officer, were among the defence witnesses. The former stated at the close of his examination, after being sworn a second time, that Har Prasad had approached him at Manikpur where he had gone on his way to Allahabad and had asked him not to give evidence for the defence, threatening him at the same time with unpleasant consequences if he did not listen. It was argued that this incident had no bearing on the trial of the case, it was unnecessarily brought in with the object of implicating Har Prasad, and that it should not, therefore, be taken notice of. If the story of the threat was true, in my opinion it was quite natural that Ram Nihore should have brought it to the notice of the Court in the hope of getting some protection from it. The statement cannot be discredited merely on this ground. No reason has been suggested as to why Ram Nihore should have come forward to injure Har Prasad, excepting that a vague suggestion was made that he was a partner of Dhani, a friend of Sarju Singh, the accused person in the criminal case in which Har Prasad had appeared as a Vakil for the prosecution against him. In the cross-examination an attempt was made to show that he was a man of no substance and that he had been convicted once, for robbery and it was argued that he was, therefore, not a reliable witness, but this took place about 14 years ago. He is now carrying on the business of a thekadar and it is not shown that he is not leading a respectable life. To meet his evidence, three witnesses have been examined on behalf of Har Prasad, viz., Shah Saidullah, peshkar of the Court of the Subordinate Judge of Banda, Abdul Shakur, Sub-Assistant Surgeon attached to the Banda Jail, and Prag Datt, his client in the above-mentioned criminal case, who were his fellow-travellers on the same date, i, e., 29th September 1917, and by the same train. By their evidence it is sought to establish a sort of alibi. The gist of their evidence is that Har Prasad in their company remained all the time at the Manikpur Railway Station waiting for the Allahabad train and that he never absented himself from their view. They all state that he went out of their sight for 10 or 12 minutes only, when he went to the privy with a lota in his hand. They give the minutest details of his movements at the station. No reason is given as to why they should have kept such a close watch over him for more than 2 hours, and why they should have carried all these details in their memory all this time. It is difficult to believe this evidence. It bears the stamp of exaggeration and untruth.
49. In the course of the same trial, Muhammad Siddiq, a Police Officer, in his cross-examination disclosed that one Maiku alias Langra, a weighman of the Banda Bazar, was a witness for the prosecution in a previously decided case in which the Municipality of Banda had prosecuted one Sheo Prasad, a girdawr, for criminal breach of, trust, and his Pleader Mr. Har Prasad had sent for the witness at his house and tried to persuade him not to give evidence for the prosecution. Through the intervention of Sarju Singh whose aid the Police had secured, this attempt had failed. This is a separate charge brought against the Pleader and Maiku, Ejaz Husain, Sarju Singh and Muhammad Siddiq have been called as witnesses on behalf of the Crown. Maiku states that one evening at about 7 or 5 he was sent for by Har Prasad through a man whose name he did not know and was asked by him, under threat not to give evidence for the prosecution. He was subjected to a lengthy cross-examination and he stood the test well. He gave his evidence in a frank and easy manner and so far as his demeanour went, he left a favourable impression on my mind. Har Prasad's Counsel attempted to establish by the cross-examination of this witness that he had not been even near the house of Har Prasad, much less inside of it, and that, therefore, he was a tutored witness, I think the result in the cross-examination was quite the contrary. No discrepancy of any importance has been pointed out in his evidence but it has been urged that, as Sheo Prasad was eventually acquitted in appeal by the High Court and the evidence of Maiku was unfavourably criticised by the learned Judge who decided the appeal, his evidence in this case should not be acted upon. It is, however, clear from the judgment that a doubt was created in the mind of the learned Judge, who gave the benefit of the doubt to the accused and acquitted him. There was no positive finding that the charge was absolutely untrue and the evidence was false. It may be that socially he does not occupy a very high position in life, but supported, as his evidence is, by other corroborative evidence and circumstances, I see no reason to disbelieve it on the man point. The witness Ejaz Husain, who happened to arrive the same evening and at the same time in the office of Har Prasad, overheard the talk which the Pleader was having with Maiku. We are asked not to believe this witness, because he is dismissed servant of Kashi Nath, a client of Har Prasad, under whose advice he had been dismissed, and, therefore, bore ill-will towards him. Kashi Nath has been called as a witness on behalf of the Pleader to establish the theory of dismissal, but the impression left upon my mind about his evidence was that it rather went to establish quite the reverse. His letters, produced by the Crown, coupled with his answers in the cross-examination went to show that the man was still in his service and was trusted by him, although an unpleasantness had arisen for a time on account of the non-delivery of certain village papers which had resulted in a registered notice calling upon him to give up the papers. The address on the envelope and the contents of the letter, dated the 27th of August 1917, show that Kashi Prasad still utilized his services as a 'Karinda.' In this letter he asked him to come to Banda, as he was acquainted with the facts of a certain case. He stated in his deposition that he had gone to Har Prasad on the above-mentioned evening about some business of his master, but on being cross-examined on the point, he was unable to give the particulars of that business. Kashi Nath is a big Zemindar holding many villages and it may be presumed that he must have had many cases in which he might have been interested at one time or the other. Ejaz Husain might have gone to Har Prasad in connection with one of these cases. He cannot be expected to remember the particulars of the case at this distance of time and I do not think that his evidence must necessarily be discarded on account of his inability to give the details. The conversation which Har Prasad was carrying on with Maiku at the time was of an unusual character and it was not strange that Ejaz Hussain should have retained the incident in his memory. The notice and the reply to it given by Ejaz Husain were read out to us. He was not charged in it with any serious dereliction of duty and certainly it contained not even a hint of dismissal. Most of the papers demanded from him were subsequently delivered over by him. The reply to the notice to my mind gave a valid reason for not handing over the papers to the man sent by Kashi Prasad. I cannot believe that Ejaz Husain has come forward to give false evidence against Har Prasad for the reason suggested. After all, it is merely an inference which we are asked to draw, and I for my part do not think that the evidence affords any ground for such an inference. The inference suggested is too far-fetched and I refuse to disbelieve the evidence on the above ground.
50. It is, however, argued that the name of Maiku as a witness in Sheo Prasad's case was mentioned at a very late stage, i.e., not until the case had come before the trying Magistrate, that, therefore, Har Prasad could not have come to know that he was an evident or even a possible witness in the case. This argument ignores the fact that Har Prasad had been engaged at the very commencement to represent Sheo Prasad at the enquiry held by the Commissioner appointed by the Municipal Board and must be taken to have come to know all the necessary facts relating to the purchase of bad grain from Sheo Nath, It is difficult to understand that a man of Har Prarad's intelligence and experience would not have tried to find out all the possible evidence which would be produced against his client in any subsequent proceedings. We are, however, asked to believe that his interest in the matter had ceased after the enquiry by the Commissioner had come to an end, and he had no more to do with it until he was again employed by Sheo Prasad to defend him before the trying Magistrate. Having regard to the fact that the prosecution had been started by the Municipality, in which every one connected with the affairs of the Municipal Board must have taken more than a usual interest, it is unlikely that Har Prasad had no further concern with it after the proceedings before the Commissioner. Although there is no positive evidence on the point, it is easy to infer from the circumstances that he must have continued to advise his client Sheo Prasad in the matter all through and must have come to know that the man who had weighed the grain was at least a possible witness for the prosecution. As proved by the evidence of Har Prasad and other witnesses, there have been and even now there are two factions in the town of Banda among whom party feeling has been running high, Har Prasad belongs to one of these parties and the other party is headed by one Mir Raza Husain. It is argued that the present proceedings have been engineered by the party of Raza Husain with a view to bring about the discomfiture and the utter ruin of Har Prasad. Here again there is no positive evidence on the point, and we are simply asked to draw this inference from the circumstance that Mir Raza Husain has all along been taking a prominent part in prosecuting the case against him and in fact in this Court also he has been present ali the time during the hearing instructing the Counsel for the Crown. There may be some truth in it, but were it not for the fact that at time agencies do spring up which help the arm of malice in reaching the offender, many an offence would have remained undiscovered and the offender would have gone unpunished. Unless it is shown that the evidence given is untrue, and, therefore, ought not to be believed, I am not prepared to attach any weight to this argument. Can the mere fact that some of the enemies of Har Prasad have taken a prominent part in helping the Crown in this proceeding, justify us in rejecting the positive evidence which has been given against him? If Muhammad Siddiq and Sarju Singh are to be believed their evidence fully supports the statements made by Maiku and Ejaz Husain. Muhammad Siddiq has no connection with Banda now and the defence has not succeeded in proving by any positive evidence that he is or has ever been under the influence of Raza Husain. He gave his evidence in a very satisfactory manner and there is no valid reason for disbelieving him. Sarju Singh may be said to be somewhat mixed up in the affairs of the two parties at Banda, but his evidence in this case, supported as it is by the statement of Muhammad Siddiq who may be described as an independent witness, cannot be discredited on this ground alone.
51. In my opinion both the charges against. Har Prasad have been fully established. As regards the evidence for, the defence I am fully convinced that it is manufactured and wholly unreliable and Har Prasad has only aggravated his offence by producing such evidence before the Court.
52. The order of the Court is that Har Prasad be removed from practice as a Vakil. He is further ordered to hand up his certificate to the Registrar of the High Court to be cancelled.
No comments:
Post a Comment