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Philip N. Godinho, In Re
Structured Summary of the Opinion
Factual and Procedural Background
This petition was brought by certain pleaders on their own behalf and as representatives of other members of the Western India Advocates' Association, Bombay (and two sister associations). They sought a declaratory decree that they — advocates who practise on the Appellate Side (i.e., not advocates on the Original Side) — have a right of audience to appear on the Crown Side (the Criminal Sessions) of the High Court. The petition challenged the High Court's rules (notably Rule 10 of the Appellate Side Rules and Rule 44 of the Original Side Rules), which restricted the right of audience in ordinary original criminal jurisdiction to advocates on the Original Side.
The petition was argued for the petitioners by Mr. Godinho. Chief Justice Beaumont delivered the primary opinion, Blackwell J. concurred, and Rangnekar J. provided an extended opinion agreeing with the result. The petition was ultimately rejected.
Legal Issues Presented
- Whether advocates who are not advocates on the Original Side (i.e., Appellate Side advocates) have a statutory right of audience to appear in the Criminal Sessions (Crown Side) of the High Court.
- Whether Rule 10 of the Appellate Side Rules and Rule 44 of the Original Side Rules (which restrict appearance in ordinary original jurisdiction to advocates on the Original Side) are ultra vires in light of: (a) the Criminal Procedure Code (particularly sections 290 and 340 and the definition of "pleader" in section 4(r)); and (b) the Indian Bar Councils Act, 1926 (including provisions creating a single roll of advocates and the right to practise under section 14).
- Whether the Criminal Procedure Code or other statutory provisions have the effect of taking away or qualifying the High Court's original criminal jurisdiction or its power under the Letters Patent to prescribe who may practise in its original jurisdiction.
Arguments of the Parties
Petitioners' Arguments (represented by Mr. Godinho)
- Rule 10 (Appellate Side) and Rule 44 (Original Side) are ultra vires and improperly restrict the statutory right of an accused to be defended by a "pleader".
- The Criminal Procedure Code governs the procedure in the Sessions of the High Court (by virtue of clause 44 of the Letters Patent and clause 38), and sections such as 290 (accused or his pleader may open his case) and 340 (right to be defended by a pleader) grant the accused a right to be defended by a pleader; therefore, any rule that limits that right is invalid.
- The definition of "pleader" in section 4(r) of the Criminal Procedure Code includes advocates; given the Indian Bar Councils Act creates a single roll of advocates, advocates generally should be able to practise and thus have a right of audience in the Criminal Sessions.
The opinion does not contain a detailed, separate account of arguments advanced on behalf of the respondents; the judges' opinions record and answer the petitioners' contentions directly.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ex Parte Evans (statement by Baron Parke) | Principle that, absent statutory enactment or established practice defining who may be heard as advocates, a Court has power to regulate its own procedure and determine the class of persons entitled to audience. | Rangnekar J. invoked this principle to support the proposition that the High Court may regulate its procedure and determine who has audience; established practice favored restricting audience in Criminal Sessions to advocates on the Original Side, and the Court may enforce that practice subject to statutory limitations. |
Court's Reasoning and Analysis
The Court's reasoning proceeds in several interrelated strands, reflected in the opinions of Beaumont C.J. and Rangnekar J., with Blackwell J. concurring.
1. Source of the High Court's criminal jurisdiction and procedural regime:
- Clauses 22 and 23 of the Letters Patent confer the High Court's ordinary original criminal jurisdiction within its civil local limits and empower it to try persons brought before it in due course of law.
- Clause 38 of the Letters Patent provides that the procedure for original criminal jurisdiction shall be the practice in use before the Letters Patent; after subsequent statutory developments the Criminal Procedure Code now prescribes the procedure to be followed in practice.
- Clause 44 of the Letters Patent subjects the Letters Patent's provisions to the legislative powers of the Governor General in Council under section 71 of the Government of India Act, 1915, so that statutory instruments may govern procedure insofar as applicable.
- The Court accepted that the Criminal Procedure Code governs the procedure to be followed in the High Court's Criminal Sessions but does not, in the judges' view, encroach upon or take away the High Court's jurisdiction as conferred by the Letters Patent; instead the Code prescribes the procedural rules to be followed when the High Court exercises that jurisdiction.
2. Interpretation of the Criminal Procedure Code provisions relied on by petitioners:
- Sections 290 and 340 provide procedural rights: section 290 permits the accused or his pleader to open his case, and section 340 states that an accused may of right be defended by a pleader.
- The definition of "pleader" in section 4(r) confines the term to a person "authorised under any law for the time being in force to practise in such Court" — thus requiring statutory or other legal authority to practise in the particular Court where proceedings occur.
- The judges concluded that the mere statutory provision that an accused may be defended by a "pleader" does not of itself create a new, general right of audience in every person fitting the generic description of "pleader": the statutory definition incorporates the qualification that the pleader must be authorised by law to practise in the particular Court.
- Consequently, advocates who are not authorised to practise in the Criminal Sessions of the High Court (by the High Court's own rules under its Letters Patent) do not fall within the definition of "pleader" for that Court merely by being on a general roll of advocates.
3. Validity of the High Court's rules restricting audience:
- Clauses 9 and 10 of the Letters Patent empower the High Court to admit and enrol advocates and to make rules as to who may appear, plead or act in the High Court; those clauses enabled the High Court to make rules regulating qualifications and rights of audience.
- Rule 10 of the Appellate Side Rules and Rule 44 of the Original Side Rules restrict the right to practise in the Sessions Court to advocates on the Original Side. The Court held that these rules were validly made under the Letters Patent.
- The Indian Bar Councils Act, 1926 was examined. While it creates a single roll of advocates and grants a general right to practise, its provisions (notably section 9(4) and section 14(3)) expressly preserve and do not limit the power of the High Courts of Bombay and Calcutta to prescribe qualifications and to determine who may plead and act in the High Court in the exercise of original jurisdiction.
- Therefore, the Bar Councils Act does not invalidate rules made by the High Court under the Letters Patent; rather, the Act leaves intact the High Court's authority to control admission and right of audience in relation to its original jurisdiction.
4. Distinction between High Court Criminal Sessions and other Courts under the Criminal Procedure Code:
- Rangnekar J. emphasized provisions in the Criminal Procedure Code (different definitions of "High Court" in various chapters, sections distinguishing High Courts and Courts of Session, and special chapters dealing with High Courts) to show that the Code contemplates a distinction between the High Court exercising original criminal jurisdiction and ordinary Courts of Session created under the Code.
- These textual distinctions reinforced the conclusion that the Code supplies procedural rules to the High Court but does not negate the Letters Patent powers allowing the High Court to regulate who may practise within its original criminal jurisdiction.
Conclusion of analysis: Combining the Letters Patent powers, the restrictive definition of "pleader" in the Criminal Procedure Code, and the saving provisions in the Indian Bar Councils Act, the Court concluded that the High Court validly restricted the right of audience in Criminal Sessions to advocates on the Original Side; the petitioners did not show any statutory right that would render those rules ultra vires.
Holding and Implications
Holding: The petition was dismissed. The Court's core ruling may be stated as: Petition rejected.
Immediate implications (direct effect on the parties): The petitioners — advocates on the Appellate Side — were denied the declaratory relief seeking a right of audience in the Criminal Sessions (Crown Side) of the High Court. The existing High Court rules (Appellate Side Rule 10 and Original Side Rule 44) restricting appearance in ordinary original criminal jurisdiction to advocates on the Original Side were upheld as validly made under the Letters Patent and not rendered ultra vires by the Criminal Procedure Code or the Indian Bar Councils Act.
Broader implications: The opinion does not purport to lay down a novel or sweeping new precedent beyond this holding; it applies established principles (including the High Court's power to regulate its own admissions and audience under the Letters Patent and the saving provisions in relevant statutes) to the facts. The judges specifically reasoned from the Letters Patent and statutory text rather than announcing a broader doctrinal change.
Disposition recorded in the opinion: "Petition rejected." (Bench: Beaumont, C.J.; Blackwell, J. — concurring; Rangnekar, J. — concurring with detailed reasons.)
Clerical/footer notation from the opinion: B.K.D
Beaumont, C.J:—
This is a petition by certain pleaders on behalf of themselves and as representatives of the other members of the Western India Advocates' Association, Bombay, in which they ask the Court to decree that they have a right as pleaders to appear on the Crown Side of the High Court. Their particular contention is that they should have a right of audience in the Criminal Sessions held by this High Court.
Rule 10 of the Appellate Side Rules of this Court provides that “Advocates, who are not Advocates [on the Original Side] shall not appear, plead, or act for any Suitor in this Court in any matter of ordinary original jurisdiction, Civil or Criminal”; and if that rule is complied with, as it has been hitherto, it forbids the advocates on the Appellate Side from appearing in the Criminal Sessions in the High Court. There is a similar rule in the Original Side Rules, namely, rule 44.
But the contention of Mr. Godinho, who appears for the petitioners, is that those rules are ultra vires.
The criminal jurisdiction of this Court on its Original Side is derived under clause 22 of the Letters Patent, which provides that this High Court shall have ordinary original criminal jurisdiction within the local limits of its ordinary original civil jurisdiction; and then clause 38 provides that the procedure to be adopted in the exercise of the original criminal jurisdiction shall be the procedure and practice which was in use before the publication of the Letters Patent. But clause 44 of the Letters Patent declares that the provisions of the Letters Patent are subject to the legislative powers of the Governor General in Council under section 71 of the Government of India Act, 1915.
Mr. Godinho contends that, having regard to clause 44 of the Letters Patent, the procedure now in force in the Sessions Court of the High Court is governed by the Criminal Procedure Code, and with that contention I agree. The Criminal Procedure Code provides in section 290 that an accused or his pleader may open his case, and that section is contained within a chapter which is intituled: “Of Trials before High Courts and Courts of Session”. Then section 340, which is contained within a chapter intituled “General Provisions”, provides that: “Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code in any such Court, may of right be defended by a pleader”. Mr. Godinho contends that an accused person being given a statutory right to be defended by a pleader, any rule of this High Court, which purports to take away or limit that right, is ultra vires. There might, I think, be considerable force in Mr. Godinho's contention if it were not for the definition of “pleader” contained in sub-clause (r) of section 4 of the Code, which provides: “pleader” used with reference to any proceeding in any Court, means a pleader (or a mukhtar) authorised under any law for the time being in force to practise in such Court.” If the rules of this Court to which I have referred are valid rules made under statutory authority, and if these rules preclude advocates on the Appellate Side from practising in the Sessions Court, then such advocates do not come within the definition of the term “pleader” quoad the Sessions Court because they are not pleaders authorised by law for the time being in force to practise in that Court.
Now, the rules in question are, I think, valid under the Indian Bar Councils Act, 1926. It is true that under section 8 of the Indian Bar Councils Act, a single roll of advocates is constituted. But in section 9, which authorises the Bar Council to make rules regulating the admission of persons to be advocates, there is contained in sub-clause (4) a provision saving the right of this High Court to prescribe the qualifications to be possessed by persons applying to practise in this Court in the exercise of its original jurisdiction; and power is reserved to the Court to grant or refuse any such application, or to prescribe the conditions under which such persons should be entitled to practise. Then section 14 empowers an advocate as of right to practise subject to the conditions laid down in that section. But in sub-clause (3) of that section it is provided that—
“Nothing in this section shall be deemed to limit or in any way affect the power of the High Court of Judicature at Fort William in Bengal or of the High Court of Judicature at Bombay to make rules determining the persons who shall be entitled respectively to plead and to act in the High Court in the exercise of its original jurisdiction.”
Under that provision, this High Court has made the rule that only advocates on the Original Side are to be entitled to practise in the Court of Session; and, in my opinion, there was clearly power to make that rule. That being so, advocates on the Appellate Side do not come within the definition of “pleader” as defined in the Criminal Procedure Code for the purposes of the Sessions Court, because they are not authorised by law for the time being in force to practise in that Court. That being so, I think no order should be made on the petition.
Blackwell, J.:—I am of the same opinion, and have nothing to add.
Rangnekar, J.:—This is a petition of three advocates on behalf of themselves and as representatives of the other members of the Western India Advocates' Association and two other sister Associations, in which the petitioners claim that advocates have a right of audience in the Criminal Sessions held by the High Court. The question raised, though interesting, is simple.
The general principle as to a right of audience in a Court, as stated by Baron Parke, is that, in the absence of any statutory enactment or established practice defining what persons are to be heard as advocates, the Court itself has the power to regulate its own procedure and to determine what class of persons have audience: Ex Parte Evans.
On the ground of established practice the petitioners have no case. It is clear, and it is not disputed, that ever since the High Court was established the right of audience in the Criminal Sessions was restricted to advocates practising on the Original Side. The question then is, whether the advocates, other than advocates (O.S), have any such light under a statute.
Clause 9 of the Letters Patent authorises the High Court to approve, admit and enrol advocates, vakeels and attorneys, and provides that such advocates, vakeels and attorneys shall be authorised to appear for the suitors of the High Court, and to plead or to act, or to plead and act for the said suitors according as the High Court may by its rules and directions determine. Clause 10 of the Letters Patent provides inter alia that the High Court shall have power to make rules for the qualification and admission of proper persons to be advocates, vakeels and attorneys of the High Court, and further provides that no persons whatsoever but such advocates, vakeels or attorneys shall be allowed to act or to plead for, or on behalf of, any suitor in the said High Court. Accordingly, the High Court has made rules for the qualifications, etc., of advocates, vakeels and attorneys, and also for the right of audience of such advocates, etc., in the High Court in the exercise of its various jurisdictions, civil and criminal, etc. The rules material to the present petition are rule 10 of the Appellate Side Rules and rule 44 of the Original Side Rules. Rule 10 of the Rules of the High Court, Appellate Side, Bombay, provides that the advocates who are not advocates (O.S) shall not appear, plead or act for any suitor in any Court in this Court in any matter of ordinary original jurisdiction, civil or criminal, or in any matter of appeal from any case of ordinary civil jurisdiction, except in one case, which is not material to the present petition. Rule 44 of the Original Side Rules is to the same effect. These rules are made by the High Court in the exercise of the power conferred upon it by clauses 9 and 10 of the Letters Patent.
Mr. Godinho contends that these rules are ultra vires. He says that the power of the High Court to regulate its procedure and practice in the Criminal Sessions is derived from clause 38 of the Letters Patent, but under clause 44 it is subject to the legislative powers of the Governor General in Council under section 71 of the Government of India Act, 1915. That being the case the learned advocate argues that since the enactment of the Criminal Procedure Code, Act V of 1898, and the Indian Bar Councils Act, XXXVIII of 1926, the procedure and practice to be followed is that laid down in these two statutes. He further argues that even the jurisdiction of the High Court to hold Criminal Sessions is governed and affected by the provisions of the Criminal Procedure Code. In support of this last argument he relies on the definition of the expression “High Court” in section 4(j), section 6, and chapter XXIII of the Criminal Procedure Code. This last argument is, in my opinion, irrelevant to the only question raised on the petition, and this, I think, was in the end fairly conceded by the learned advocate. I shall, however, briefly deal with it first.
The ordinary criminal jurisdiction of the High Court is derived under clauses 22 and 23 of the Letters Patent. Clause 22 provides that the High Court shall have ordinary original criminal jurisdiction within the local limits of its ordinary original civil jurisdiction—this latter being defined by clause 11—and also in respect of all persons beyond such limits over whom the High Court had criminal jurisdiction at the date of the publication of the Letters Patent. Clause 23 provides that the High Court in the exercise of its ordinary criminal jurisdiction shall be empowered to try all persons brought before it in due course of law. Is there anything in the Criminal Procedure Code which takes away or qualifies the jurisdiction of the High Court? I think not. What the Criminal Procedure Code does is to lay down the procedure to be followed by the High Court in the exercise of its ordinary original criminal jurisdiction and there is nothing in the Code which in any way encroaches upon the jurisdiction. Before the enactment of the Criminal Procedure Code, the procedure followed by the High Court in trials held in the exercise of ordinary criminal jurisdiction was as laid down in clause 38 of the Letters Patent. That clause provides that the proceedings in all criminal cases in the High Court in the exercise of its ordinary original criminal jurisdiction shall be regulated by the procedure and practice which was in the use in the Court before the publication of the Letters Patent, and now the procedure to be followed is that laid down in the Criminal Procedure Code, and that is all.
Mr. Godinho relies on section 4 of the Criminal Procedure Code. Section 4, however, says that the words and expressions mentioned in that section have the meanings given to them therein unless a different intention appears from the subject or context, and it is clear that the definition of the expression “High Court” must be read subject to the other provisions of the Code. Section 6 is next relied upon. This section lays down the classes of criminal Courts, and among others, mentions Courts of Session. But the section itself makes a distinction between the High Courts as one class of criminal Courts and other classes of criminal Courts mentioned therein. Mr. Godinho next relies on chapter XXIII of the Criminal Procedure Code. The very first section in the chapter, namely, section 256, gives a different definition of the expression “High Court,” and defines the High Court as meaning inter alia a High Court established under the Indian High Courts Act, 1861, or the Government of India Act, 1915. Apart from this there are ample indications in the Code which show that the jurisdiction in the High Court under clauses 22 and 23 was left untouched. Por instance, section 9(1) says that the Local Government shall establish a Court of Session for every Sessions Division and appoint a Judge of such Court. This is the first class of Court created by section 6. Surely this cannot apply to the Criminal Sessions of the High Court. Then there is section 28 in chapter III which deals with the powers of Courts, and provides that subject to the other provisions of the Code any offence under the Indian Penal Code may be tried (a) by the High Court, or (b) by the Court of Session, or (c) by any other Court by which such offence is shown in column 8 of the second schedule to be triable. The section thus makes a clear distinction between the High Court and a Court of Session. Then in chapter XXIII itself there are special provisions for High Courts as such. Section 333 empowers the Advocate General to enter nolle prosequi. Section 334 says that for the exercise of its original criminal jurisdiction, every High Court shall hold sittings on such days and at such convenient intervals as the Chief Justice from time to time appoints. Section 335 empowers the High Court to hold its sittings at the place at which it was holding them at the time the Criminal Procedure Code was enacted. I may also refer to another important section which shows a distinction between a Court of Session and the Criminal Sessions of the High Court. Chapter XXV provides for the mode of taking down and recording evidence in criminal inquiries and trials. Section 356 lays down the rules how the Sessions Judge is to take down evidence and provides inter alia that the record is to be signed by the Judge. Section 365 on the other hand says that every High Court shall from time to time by general rule prescribe the manner in which evidence shall be taken down in cases coming before it, and that the evidence shall be taken down in accordance with such rule. It is unnecessary to refer to other sections in the Code, and, in my opinion, this contention must be rejected.
This brings me now to the real question raised on the petition. Mr. Godinho relies on sections 340 and 290 of the code in support of his contention that the advocates have a right to appear in the Criminal Sessions of the High Court. Section 340 provides that any person accused of an offence before a criminal Court may of right be defended by a pleader. Section 290, which occurs in chapter XXIII, says that the accused or his pleader may then—that is, when the case for the prosecution is closed—open his case, etc. Mr. Godinho, therefore, argues that a “pleader” is entitled as of right to appear in the Criminal Sessions of the High Court. The expression “pleader” is defined in section 4(r) in the terms following:—
“‘Pleader’, used with reference to any proceeding in any Court, means a pleader or a mukhlar authorised under any law for the time being in force to practise in such Court, and includes (1) an advocate, a vakil and an attorney of a High Court so authorised, and (2) any … other person appointed with the permission of the Court to act in such proceeding:”
Now, the fact that an accused person has a right to be defended by a pleader, and if he is defended by a pleader, the fact that the latter can take part in the proceedings and may open his case, etc., cannot by themselves, in my opinion, entitle a person who may answer the description of a “pleader” to say that he has a right of audience in a Court. The mere definition in section 4(r) cannot create any such title or status. Apart from that, the definition restricts the right of audience only to (1) a pleader authorised under any law, and (2) to an advocate, a vakil or an attorney authorised by law to practise in a particular Court. Therefore, the petitioners have to show that they are authorised by law to practise in the Criminal Sessions of the High Court, and it is clear that apart from the Indian Bar Councils Act there is no such law which authorises the advocates to practise in the Criminal Sessions of the High Court. On the other hand, under the rules made under the Letters Patent they are debarred from practising in such Court. There is nothing in the sections to which I have referred or in the Criminal Procedure Code which takes away or restricts the power of this Court to make rules for admissions, etc., and for determining the right of audience under its Letters Patent. Then the only question is whether there is anything in the Indian Bar Councils Act which challenges the right of the High Court to make such rules? I think not.
Mr. Godinho says that under the Indian Bar Councils Act there is only one class of advocates and only one roll is kept. That is so, but section 9, sub-section (4), provides that nothing in section 9, which empowers the Bar Council to make rules for qualifications and admission of advocates or in any other provisions of this Act, shall be deemed to limit or in any way affect the powers of the High Courts of Bombay and Calcutta to prescribe the qualifications to be possessed by persons applying to practise in those Courts in the exercise of their original jurisdiction or the powers of these High Courts to grant or refuse any such application or to prescribe the conditions under which such persons shall be entitled to practise or plead. Section 14 is important. It creates the right of advocates to practise in the Courts. Sub-section (1) provides that an advocate shall be entitled as of right to practise subject to the provisions of sub-section (4) of section 9 in the High Court of which he is an advocate. Sub-section (3) is in the terms following:—
“(3) Nothing in this section shall be deemed to limit or in any way affect the power of the High Court of Judicature at Fort William in Bengal or of the High Court of Judicature at Bombay to make rules determining the persons who shall be entitled respectively to plead and to act in the High Court in the exercise of its original jurisdiction.”
It need hardly be pointed out that the Criminal Sessions held by the High Court is part of its ordinary original jurisdiction. This is clear from clause 22 of the Letters Patent.
The provisions of the Indian Bar Councils Act, to which I have referred, leave no doubt in the matter, and, in my opinion, there is only one answer which can be given to the point raised on the petition, and that is that there is nothing in the Act which invalidates the rules made by this Court under the Letters Patent and that they are not ultra vires the powers of the High Court.
There is only one more point to which I may now refer. Mr. Godinho says that clauses 9 and 10 of the Letters Patent refer to the civil jurisdiction of the High Court and relies upon the word “suitor” occurring in these clauses. I am unable to see why the clauses should not apply to criminal proceedings, and the scheme of the Letters Patent shews that they do. You have first the clause providing for the constitution of the High Court, appointment of Judges and ministerial officers. Then the Letters Patent provides for the admission of advocates, vakeels and attorneys, and then follow the provisions in regard to the various jurisdictions and the law to be administered by the High Court. Thus you have provisions in regard to the civil jurisdiction and the law to be administered by the High Court, criminal jurisdiction and the criminal law, admiralty jurisdiction, testamentary and intestate jurisdiction, and so on. Then follow the provisions regulating the procedure to be followed.
In the result I agree that the petition must fail and be rejected.
Petition rejected.
B.K.D
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