Contents As Mohammed Rafi............................................................................................................................... .......3 AN ADVOCATE v. BAR COUNCIL OF INDIA...................................................................4 Bar Council of India v. High Court of Kerala................................................................7 BHUPINDER KUMAR SHARMA v. BAR ASSOCIATION, PATHANKOT..............................10 Biji vs Registrar, High Court Of Kerala on 9 August, 2001........................................13 Shri C.K Daphtary and Others v.Shri O.P Gupta and Others 1971 (1) SCC 626.........14 In the Matter of Mr ‘G’ a Senior Advocate of the Supreme Court AIR 1954 SC 557. .19 CHANDRA SHEKHAR SONI (Appellants)v. BAR COUNCIL OF RAJASTAN(Respondents) ................................................................................................................................. 21 D.S.Dalal v. State Bank of India & Ors., 1993 Supp (3) SCC 557.............................22 Daroga Singh and Ors. v. B.K. Pandey......................................................................24 DR. D.C. SAXENA, CONTEMNOR V. HON’BLE THE CHIEF JUSTICE OF INDIA...............28 Delhi Judicial Services Association v. State of Gujarat..............................................31 E.M. SHANKARAN NAMBOODRIPAD v. T. NARAYANAN NAMBIAR................................35 E.S. Reddi v. Chief Secretary, Government of A.P. and Anr.......................................38 Gobind Ram v. State of Maharshtra AIR 1972 SC 989..............................................42 Ex. Captain Harish Uppal Vs. Union of India (UOI) and Anr......................................42 Harishankar Rastogi v. Girihari Sharma and Ors., 19782 SCC 165...........................44 Hikmat Ali Khan (Appellants) vs. Ishwar Prasad Arya & Ors. (Respondents).......................45 Himalayan Cooperative Group Housing Society v Balwan Singh..............................47 In Re A an advocate.................................................................................................. 49 In Re: S. Mulgaokar................................................................................................... 50 In the matter of Mr. D, an Advocate of the Supreme Court (In re D).........................54 In the matter of Summons under Order IV Rule 30 of the Supreme Court Rules 1950 (as amended),.......................................................................................................... 57 JOHN D’DOUZA v. EDWARD ANI................................................................................60 L D Jaisinghani v. Naraindas N Punjabi......................................................................62 Lalit Mohan Das v. AG, Orissa(6 Page case)..............................................................64 Mahabir Prasad Singh vs.Jacks Aviation Pvt. Ltd.......................................................66 The Bar Council of Maharashtra v M.V. Dabholkar & Ors (AIR 1976 SC 242)............67 1
Mrs. Roma Banerjee vsUshapati Banerjee, Muktear, on 29 January, 1954..............69 N.B Mirzan vs. The Disciplinary Council of Bar Council of Maharashtra & Ors..........72 New India Assurance Co. Ltd vs. A.K. Saxena...........................................................73 P. D. GUPTA v. RAM MURTY....................................................................................... 74 Perspective Publications (P) Ltd. and Anr.v.State of Maharashtra.............................75 Pralhad Saran Gupta v. Bar Council of India.............................................................78 Pravin C. Shah v. K.A.Mohd.Ali and Another, (2001) 8 SCC 650 (14 pages)..............80 R.D. Saxena v. Balram Prasad Sharma.....................................................................83 RajendraNagrath v. Col VNVohra and Ors................................................................85 RAJENDRA V. PAI V. ALEX FERNANDES AND OTHERS.................................................87 C. Ravichandran Iyer vs Justice A.M. Bhattacharjee & Ors........................................88 Sanjay R Kothari v. South Mumbai Consumer Disputes Redressal Forum.................93 Shiv NarainJafa Vs. The Hon'ble Judges of the High Court of Judicature at Allahabad......................96 P.J. Ratnam v. D. Kanikaram and Ors., AIR 1964 SC 244..........................................98 SUPREME COURT BAR ASSOCIATION v. UNION OF INDIA........................................101 TC Mathai and Anr V. District, Sessions Judge Thiruvananthapuram ,Kerala...........103 Thomas P C v. Bar Council of Kerala & Ors............................................................105 U.P. Sales Tax Service Association v. Taxation Bar Association, Agra and Others. . .106 V.C. RANGADURAI v. D. GOPALAN AND OTHERS AIR 1979 SC 201; (1979) 1 SCC 308 ............................................................................................................................... 108 V.P.Kumaraveluv Bar Council of India &Ors.............................................................112 Vijaya Singh v. Murarilal......................................................................................... 114 Vikas Deshpande v. Bar council of India and others...............................................115 Vinay Chandra Misra, In Re..................................................................................... 117 Srimathi And Others vs Union Of India And Others.................................................121 Dinesh Chandra Pandey v. High Court of Madhya Pradesh and Anr........................122 ShrimatiJamilabai Abdul Kadar v ShankarlalGulabchand and others......................124 Ram Bharosey Agarwal v Harswarup Maheshwari-(1976) 3 SCC 435.....................126
2
Case Name: A.S.
Mohammed Rafi v State of Tamil Nadu
Topic: Right to be defended by a lawyer Case Citation: (2011) 1 SCC 688 Judges: Markandey Katju and Gyan Sudha Misra No. of pages : 7 Facts A resolution was passed by the Coimbatore Bar Association exhorting its members not to defend the policemen who were the accused in a particular criminal case.The resolution was challenged before the Madras High Court. The Madras High Court made some observations about the Coimbatore Bar Association in its judgment. A civil appeal was filed before the Supreme Court seeking to quash the observations made against it. While granting the plea of the Coimbatore Bar Association in Civil Appeal No. 10304 -103 08 of 2010 that the observations made against it in the impugned judgment of the High Court of Madras should be quashed, the Supreme Court also considered the validity and propriety of the resolution passed by the Bar Association. Issues Whether professional standards and ethics require advocates to defend all accused persons. Whether the resolution passed by the Bar Association not to defend accused policemen in criminal cases violates the right to be defended under Article 22(1) of the Constitution. Held All such resolutions of Bar Associations in India are null and void and right minded lawyers should ignore and defy such resolutions if they want democracy and rule of law to be upheld. It is the duty of a lawyer to defend no matter what the consequences are. Professional ethics require that a lawyer cannot refuse a brief, provided the client is willing to pay his fee and the lawyer is not otherwise engaged. Every person, however, wicked, depraved, vile, degenerate, perverted, 3
loathsome, execrable, vicious or repulsive he may be regarded by society, has a right to be defended in a court of law and correspondingly it is the duty of the lawyer to defend him. The court also emphasized Article 22(1) of the Constitution which says that no person who is arrested shall be detained in custody without being informed of the grounds of his arrest nor shall be denied the right to consult, and to be defended by a legal practitioner of his choice. Reference was also made to Chapter II of the Rules framed by the Bar Council of India about ‘Standards of Professional Conduct and Etiquette’. Rule 11 says that an advocate is bound to accept any brief in the courts or tribunals or before any other authority in or before which he proposes to practice at a fee consistent with his standing at the Bar and the nature of the case. Special circumstances may justify his refusal to accept a particular brief. Judgment The Supreme Court declared that all such resolutions of Bar Associations in India are null and void and directed the registry to circulate copies of the judgment/order to all High Court Bar Associations and State Bar Councils in India and the High Court Bar Associations in turn were requested to circulate the judgment/order to all the District Bar Associations in their States/Union Territories.
AN ADVOCATE v. BAR COUNCIL OF INDIA AIR 1989 SC 245: 2 Judge Bench (18 page case) FACTS A complaint was filed by the respondent before the State Bar Council alleging that the appellantadvocate had withdrawn a suit against one ‘A’ for recovery of a sum of money without the written instruction of his client. However the version of the appellant was that the suit had been instituted in a particular set of circumstances, that the complainant had been introduced to the appellant for purposes of the institution of the suit by an old client of his ‘G’, that the appellant was already handling a case on behalf of ‘G’ against ‘A’ and it was at the instance and inspiration of ‘G’ that the suit had been instituted by the complainant, but actually he was the nominee of ‘G’ and the complainant himself had no real claim on his own and that the suit was withdrawn 4
under the oral instructions of the complainant in the presence of ‘G’ and ‘A’. The disciplinary committee of the State Bar Council after calling for the comments of the appellant in the context of the complaint, straightaway proceeded to record the evidence of the parties. No charge was framed specifying the nature and content of the professional misconduct attributed to the appellant. Nor were any issues framed or points for determination formulated. As the case could not be concluded within the prescribed time limit the matter came to be transferred to the Bar Council of India which heard arguments and rendered the impugned order suspending the appellant from practising his profession for 3 years. ISSUES The case came before the Supreme Court under Section 38 of the Advocates Act The questions which arose for determination were:1) Whether a charge apprising him specifically of the precise nature and character of the professional misconduct ascribed to him needs to be framed? (2) Whether in the absence of an allegation or finding of dishonesty or mens rea a finding of guilt and a punishment of this nature can be inflicted on him? (3) Whether the allegations and the finding of guilt require to be proved beyond reasonable doubt? (4) Whether the doctrine of benefit of doubt applies? (5) Whether an Advocate acting bona fide and in good faith on the basis of oral instructions given by someone purporting to act on behalf of his client, would be guilty of professional misconduct or of an unwise or imprudent act, or negligence simpliciter, or culpable negligence punishable as professional misconduct? Allowing the appeal and setting aside the order of the Bar council of India Supreme Court held that:-
5
The proceedings under Section 35 of the Advocates Act are quasi-criminal in character inasmuch as a Member of the profession can be visited with penal consequences which affect his right to practice the profession as also his honour; In order to enable the concerned Advocate to defend himself properly, an appropriate specific charge was required to be framed on the paramount consideration of fair play even though the Act does not outline the procedure and the Rules do not prescribe the framing of a charge. That the Disciplinary Committee empowered to conduct the enquiry and to inflict the punishment on behalf of the body, in forming an opinion must be guided by the doctrine of benefit of doubt and is under an obligation to record a finding of guilt only upon being satisfied beyond reasonable doubt. It would be impermissible to reach a conclusion on the basis of preponderance of evidence or on the basis of surmise, conjuncture or suspicion. It will also be essential to consider the dimension regarding mensrea; In the event of a charge of negligence being levelled against an Advocate, the question will have to be decided whether negligence simpliciter would constitute misconduct. It would also have to be considered whether the standard expected from an Advocate would have to answer the test of a reasonably equipped prudent practitioner carrying reasonable workload. A line will have to be drawn between tolerable negligence and culpable negligence in the sense of negligence which can be treated as professional misconduct exposing a Member of the profession to punishment in the course of disciplinary proceedings. In forming the opinion on this question the standards of professional conduct and etiquette spelt out in Chapter II of Part VI of the Rules governing Advocates, framed under Section 60(3) and Section 49(1) (g) of the Act, which forms a part of the Bar Council of India Rules, may be consulted. As indicated in the preamble of the Rules, an Advocate shall, at all times compose himself in a manner befitting his status as an Officer of the Court, a privileged member of the community and a gentleman bearing in mind what may be lawful and moral for one who is not a member of the bar may still be improper for an Advocate and that his conduct is required to conform to the rules relating to the duty to the Court, the duty to the client, to the opponent, and the duty to the colleagues, not only in letter but also in spirit. It is in the light of these principles the Disciplinary Committee would be required to approach the question as regards the guilt or otherwise of an Advocate in the context of professional 6
misconduct levelled against him. In doing so apart from conforming to such procedure as may have been outlined in the Act or the Rules, the Disciplinary Authority would be expected to exercise the power with full consciousness and awareness of the paramount consideration regarding principles of natural justice and fair play. In the present case the appellant has not been afforded reasonable and fair opportunity of showing cause inasmuch as the appellant was not apprised of the exact content of the professional misconduct attributed to him and was not made aware of the precise charge he was required to rebut. The conclusion reached by the Disciplinary Committee in the impugned order further shows that in recording the finding of facts on the three questions, the applicability of the doctrine of benefit of doubt and need for establishing the facts beyond reasonable doubt were not realised. Nor did the Disciplinary Committee consider the question as to whether the facts established that the appellant was acting with bona fides or with mala fides, whether the appellant was acting with any oblique or dishonest motive, whether there was any mens rea, whether the facts constituted negligence and if so whether it constituted culpable negligence. Nor has the Disciplinary Committee considered the question as regards the quantum of punishment in the light of the aforesaid considerations and the exact nature of the professional misconduct established against the appellant. Since all these aspects have not been examined at the level of the Bar Council, and since the matter raises a question of principle of considerable importance relating to the ethics of the profession which the law has entrusted to the Bar Council of India, it would not be proper for the Supreme Court to render an opinion on this matter without the benefit of the opinion of the Bar Council of India which will accord close consideration to this matter in the light of the perspective unfolded in this judgment both on law and on facts. Hence it was considered appropriate to remit the matter back to the Disciplinary Committee.
Bar Council of India v. High Court of Kerala (15 PAGE CASE) Decision: Supreme Court, April 27, 2004 Bench:3 judges (Chief Justice V.N. Khare, Justice Brijesh Kumar & Justice Sinha) 7
Facts: The Petitioner, being the Bar Council of India, filed a writ petition with the Supreme Court challenging Rule 11 of the High Court of Kerala Rules saying that it violates Articles 14 and 19(1)(g) of the Constitution od India. It is also violative of Section 34(1) of the Advocates Act, 1961, which authorises the high court to make rules under the Act, because it seriously impinges upon and usurps the powers of adjudication and punishment that is conferred upon the Bar Councils under the Act as also it violates the principles of natural justice.It is pertinent to know that Rule 11 states the following:“No advocate who has been found guilty of contempt of court shall be permitted to appear, act or plead in any court unless he/she has purged himself of contempt.” Issue: Whether Rule 11 of the High Court of Kerala Rules, which forbids a lawyer from appear, acting or pleading in any court until he/she has had himself purged of contempt of court by the order of the appropriate court, is constitutional? Decision:The Supreme Court divides its decision into subdivisions based on topic. I have done the same and summarised each part as concisely as possible.
CONTEMPT OF COURT: The Supreme Court, in this case, starts off by talking of the history and origination of contempt of court as a concept. Under Article 129 and 215 of the Constitution, the SC and HC (being courts of record), have the powers to punish for contempt of itself. Further, it also has the inherent powers to do so. The court then goes on to say that an advocate has considerable freedom in conducting his case and that in the interest of his client he/she may even cast reflections upon the character, conduct or credit of the parties or witnesses provided that they are relevant to the issue before the court and are not defamatory in character. So long as he/she does not insult the court, a lawyer will not be held for contempt. The Supreme Court, in this judgement, then proceeds to cite several Indian and UK decisions talking about what amounts to Contempt of Court. The Court even discusses quotations of famous judges in UK who discussed what amounts to contempt of court. The most relevant of these cases was that of D.C. Saxena (Dr.) v. Hon’ble Chief Justice of India (1996 SC Decision) wherein the Apex court held that the right of freedom of speech conferred under Article 19 of the Constitution cannot stand as a bar to the powers of this court under Article 129 and those of the High Court under 215 8
as these courts are independent and not subject to Art. 19; particularly when clause (2) excludes the operation thereof. The Supreme Court in this case then holds the view based on the cases of what amounts to contempt it relied on that an advocate does not enjoy an absolute privilege when acting in the course of his professional duties. It is not justified that a lawyer makes a personal attack upon the complainant or witnesses on matters not borne out by the record or uses language that is obscene or abusive or in making vulgar gestures in court. The power of contempt is exercised only cautiously and rarely but with
due care and only when it becomes imperative to uphold the rule of law. ADVOCATES ACT: The Supreme Court brings up Section 30 of Chapter II of the Act which talks of the right of an advocate to practise in all courts, before tribunals and persons entitled by law to take evidence and before any other authority or person before whomthe advocate, under present law, is entitled to practise. The Court then goes to say that this provision has not yet been brought to force. The Court then states that an appeal lies to the Bar Council of India against a decision made as per Section 35 (Punishment of advocates for misconduct by State Bar Council) of the Act whereas an appeal lies to the
Supreme Court against an order made by the BCI. Distinction between Contempt of court and misconduct by an advocate: The court, in this case, says that the two concepts stand on different footings. A person does not have a fundamental right to practice in court, only a statutory right under the Advocates Act. The Court relies on the case of Supreme Court Bar Assn. case (1998)and holds that the High Court may prevent the contemner advocate to appear before it till he/she purges himself of contempt because it possesses the jurisdiction to withdraw the privilege of an advocate to practice before it (since the HC confers advocates the privilege of practicing before it). That being said, the HC cannot suspend or revoke the license of an advocate to practice in other courts or tribunals. The court then cited Harish Uppal case (2003) to hold that conduct in court of an advocate and its control is only within the domain of courts and rules made in furtherance of this are binding and valid. The SC, in that case held that, “Such a rule, if framed would not have anything to do with the disciplinary jurisdiction of the bar councils...the right to practice, no doubt, is the genus of which the right to appear and conduct cases in the court may be specie...The power to frame such rules (Rule 11) should not be confused with the right to practice law. While the Bar Council can exercise control ober the latter, the courts are in control of the former.” 9
This court then holds on the basis of theaforementioned that the Bar council of India, not being a citizen, is not entitled to raise the question of validity of rules on the touchstone
of Article 19 of the Constitution. It has no fundamental right. NATURAL JUSTICE: The Court holds, by relying on a number of cases, that natural justice concept’s interpretation differs from case to case. It has no straight jacket formula. That being said, the SC in this case held that the contemner does get his/her opportunity of being heard and that is when he/she purges his conduct, ergo, apologises to the court.Hence, the contention of the petitioner’s counsel that a contemner does not get the opportunity of being heard because of Rule 11 is untrue because, even though the advocate is not allowed to appear in the HC under Rule 11 in his/her capacity as a lawyer, he/she may approach the court to purge his conduct and hence he will be afforded the
opportunity to be heard. CONCLUSION: The SC holds that Rule 11 is not ultra vires Art. 14 and 19 of the Constitution of India and dismisses the appeal.
BHUPINDER KUMAR SHARMA v. BAR ASSOCIATION, PATHANKOT (2002) 1 SCC 470 (BEFORE D.P. MOHAPATRA AND SHIVARAJ V. PATIL, JJ.)
(6 Pages)
Judgement delivered by Shivaraj V. Patil, J. – This is a civil appeal under S. 38 of the Advocates Act, 1961 (deals with Appeal to SC) against the judgement and order dated 4-11-1998 passed by the Disciplinary Committee (DC) of BCI, confirming the order passed by DC of Bar Council of Punjab & Haryana (P&B) removing the
10
name of the appellant from the State’s Roll of Advocates under S. 35 (3) (d) of the Act (deals with Punishment for misconduct). Appellant enrolled in 1994. In 1995, the Respondent-Association made a written complaint against the Appellant to the State Bar Council alleging misconduct. The appellant was alleged to have carried on business even after his enrolment at the Bar. He was alleged to have carried on the following business activities1) He was running a photocopier documentation centre in the Court compound, Pathankot, and the space for the same was allotted to the appellant in his personal capacity on account of his being handicapped. 2) He was running a PCO/STD booth which was allotted in his name from the P & T Department under handicap quota. 3) He was the Proprietor/General Manager of the Punjab Coal Briquettes, Pathankot, a private concern and he was pursuing the business/his interest in the said business even on the date when his statement was being recorded by the State Bar Council DC on 12-5-1996. The appellant had contended that his father and brother were carrying on the business subsequent to his enrolment under some oral arrangement. The DCs of State Bar Council as well as BCI appreciated and re-appreciated respectively the evidence before them and came to the conclusion that the appellant was in fact guilty of misconduct and thereby removed his name from the rolls. Hence the appeal. The claims by the appellant in the present appeal were two-fold: 1) The allegations made in the complaint were not established or proved, judged by the standard or proof required in case like this, the evidence not properly appreciated. 2) Even assuming the misconduct is proved, the punishment imposed on the appellant is grossly disproportionate.
11
The respondent contended that the evidence on record clearly justifies the order and that the appellant is still continuing carrying on the business as supported by a report of the Sub-Judge, Pathankot, made to the SC. Therefore the punishment is proper. Evidence brought on record:
Column 12 of his Enrolment Application Form where the appellant falsely declared that he has never been engaged or was engaged in any trade, business or profession showing
suppression of material fact. Deposition of Senior Telecommunication Office Assistant that STD/PCO has been allotted to the appellant in 1992 and the name of the appellant continues to be on record subsequent to enrolment and no intimation for a transfer of the same to be made to his
brother. Deposition of an SDO office clerk stating that the Space for Kiosk for installation of photocopy machine was allotted by Deputy Commissioner, Gurdaspur, in 1991 to appellant in handicap quota, which was available on record, and no intimation to change
or transfer the lease was made. Lease amount continues to be paid by the appellant. Depositions by appellant’s father and brother denying the existence of any oral
arrangement for transfer of any business. 1999 order passed by SC directing Sub-Judge, Pathankot to enquire about the name board and inscription in Punjabi, in the PCO booth which disclosed the appellant’s name and was therefore found to stand against the appellant. This was in pursuance to an affidavit filed by the appellant in earlier in 1999 that the petitioner is not personally engaging himself in any activity, business or any other profession while continuing his enrolment.
Keeping in view the above mentioned, the Court held that the finding recorded holding the appellant guilty of professional misconduct is supported by and based on cogent and convincing evidence even judged by the standard required to establish misconduct as required to prove a charge in a quasi-criminal case beyond reasonable doubt. However, having regard to the nature of misconduct and taking note of the handicap of the appellant, debarring him from practising for all time was held to be too harsh. The punishment was modified to debar the appellant from practising up to the end of December 2006.
12
Biji vs Registrar, High Court Of Kerala on 9 August, 2001 Facts: The petitioners before the completion of five years of practise took up the posts of Assistant Public Prosecutor Grade II (AAP II), though temporarily. They had not completed two years in those posts. The petitioner applied pursuant to the notification issued by the High Court of Kerala, inviting applications from qualified candidates for appointment to the post of MunsiffMagistrate in the Kerala Judicial Service. The qualification prescribed inter alia, is that the candidate should have a five years practice as an Advocate and for recruitment by transfer, a practice of three years prior to his appointment to any one or more of the feeder categories mentioned in the notification and should have functioned at least for a period of two years in such feeder categories to be eligible (clause 4(11)). The applications of the petitioners were rejected by the High Court on the ground that the petitioner was not practising as Advocates. These rejections are challenged in these Original Petitions. Petitioners contended that merely because they have taken up the position of APP II, they did not cease to be practising advocates having a standing at the bar and the period during which they are functioning as AAP II should also be added on to the earlier period in which they were practising as advocates and if the periods are added up, they would satisfy the five year period of practice envisaged in the notification prescribing qualifications. The petitioners relied on the interpretation of R. 49 of the Bar Council of India Rulesdecision in SushamaSuri v. Govt. of National Capital Territory of Delhi ((1999) 1 SCC 330) in support of their contention pointing out that since they are actually practising before Courts, they must be understood as practising advocates and the period during which they have taken up the position of the AAP II should also be reckoned as "practice". Under R. 49 of the Bar Council of India Rules, an advocate shall not be a full-time employee of any person, Government, firm, corporation or concern and on taking up such employment, shall intimate such facts to the Bar Council concerned and shall cease to practise as long as he is in such employment. However, an exception is made in such cases of law officers of the Government and corporate bodies despite his being a full time salaried employee if such law officer is require to act or plead in court on behalf of others. It is only to those who fall into other categories of employment that the bar under R. 49 would apply. 13
Respondents contended that under R. 49 of the Bar Council of India Rules, the petitioner could not be treated as law officers so they cannot be taken to be practising advocates within the meaning of clause 4 of the notification. Counsel referred to the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978 to point out that aAAP II or even a Public Prosecutor is not included in the definition of "Government Law Officer" and hence the second part of R. 49 of the Bar Council of India Rules has no application. HELD: The qualification for the post of AAP II is that the person must be a graduate in law and must be a member of the Bar and must have not less than three years of active practice in Criminal Courts. Temporary appointments like these are made under R.12. The prosecutors so appointed can only appear on behalf of the Government to prosecute in that particular Court and that is on the strength of S. 25of the Code of Criminal Procedure. Hence the second part of R. 49 of the Bar Council of India Rules exempting Law Officers from disqualification does not apply to APPs II appointed under the Special Rules in Kerala, though it may be a temporary appointment in terms of R. 12 thereof. Petitioners do not qualify as Law Officers under the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978. Since they have not completed the requisite number of years for being considered for appointment by way of recruitment by transfer, again they are found to be not qualified to come under that category. Hence the application was rejected.
Shri C.K Daphtary and Others v.Shri O.P Gupta and Others 1971 (1) SCC 626 JUDGES: S. M. Sikri, M. Shelat, C. A. Vaidialingam, A. N. Grover, A. N. Ray NO. OF PAGES: 28 PARTIES: Petitioners – Shri C.K. Daphtary and three others Respondent 1 – O.P. Gupta (hereinafter OPG); Respondent 2 – Rising Sun Press, Delhi (through its proprietor); Respondent 3 – M/s. Kanak Book Depot (not traced)
14
FACTS:
Petition under Art. 129 The petitioners brought to notice a pamphlet containing scurrilous aspersions on Shah J. regarding a judgment in a civil appeal in which Respondent 1 (OPG) was involved. Another judge Hegde J. also heard this case with Shah J. This was prepared for the
impeachment of Shah J. It was alleged that the pamphlet had been printed and published with the specific aim to
bring disrepute to and scandalize the Court as it was widely and unnecessarily circulated. Also alleged that the pamphlet disparages the court and tends to weaken the confidence
of people in it. In their prayer, the petitioners demanded that the respondents to show cause as to why they should not be committed for contempt of court and after hearing, order an attachment and committal, impose any penalty that may be deemed fit and pass such
order as the Court may think proper. It was clear that OPG had personally distributed the pamphlets for which he was charging
Re. 1/-, from evidence rendered. This case was called for hearing on Nov. 23rd 1970 – the court served notices on the respondents to be returned on December 3rd, and then again on December 9th, but these
were ignored by Respondent 1 (OPG). The 2nd notice (to be returned on December 9th) was returned unserved and it was stated by the wife of Respondent 1 (OPG), that he had gone to Poona. However, on enquires, one Shri Kureel stated that OPG comes and visits him as a house guest on and off. From this it was inferred that OPG was deliberately concealing himself to avoid service of
notice. Other notices also could not be served on account of him being out of station. Thus, the court on Dec. 9th issued a non-bailable warrant for the arrest of OPG and his
production in court on Dec 14th, but he managed to elude the police also. On Dec. 10th OPG sent a letter to the Registrar with his address in Puri stating that he heard that the court required his presence and that he was trying to get there. He
requested that the matter be listed for January, 1971. The Court felt that as the address on the letter was c/o The Station Master, Jagannath
Puri, he was still concealing his actual location and the warrant was to be executed. Finally on Jan 25th OPG appeared before the Court and the petition was listed for hearing on 12th February. On Jan 28th OPG filed an application alleging that the contempt petition 15
was not maintainable. The case listed for Feb 12th was adjourned to 18th February. OPG
who was directed to file an affidavit of the merits by 16th Feb., failed to do so. On Feb. 22nd OPG moved for postponement as he wanted to engage lawyers who were
parliamentarians and busy till March 21st. The object of these delay tactics was that C.J Shah (the judge who was abused in the pamphlet) was due to retire on Jan 21st, 1971 as OPG wanted to file an affidavit hurling MORE abuses at Shah, but wanted to wait after his retirement so as to use the defence
that there is no contempt with respect to a Judge who has retired. On Feb. 18th, OPG filed a counter-affidavit as the Court held that the case would be heard
based on the affidavits already filed. In the counter-affidavit, OPG apologized initially but then stated that in borderline cases it was permissible to make an alternative and additional defence of no contempt and he
proceeded to do so. In this statement he put forth a number of excuses and justifications for his behaviour and
went on to cast aspersions on the petitioners. Respondent 2 – Mela Ram [partner of Rising Sun] stated that OPG had approached him for some printing in April 1970 but he had assigned the work to a contractor and had not looked into it. He stated that OPG had not even paid for the prints and he apologized unconditionally to the court.
ISSUES:
Maintainability of this petition. Clarification of the existing law on contempt of court Whether distributing the pamphlet amounted to contempt
CONTENTIONS:
OPG has alleged that the law relating to contempt in writings with respect to proceedings which have finished is repugnant to Art. 19(1)(a) read with Art. 19(2) [freedom of speech and expression]. He alleged that such a law was an unreasonable restriction on the
freedom of speech. He urged the court to apply the US law on this matter. Art. 105(2) of the Constitution and Ss. 3 and 4 of the Parliamentary Proceedings (Protection of Publication) Act, 1956 was relied on when he stated that the Parliament’s authority can be taken to be implied to this publication as there was no objection raised 16
against it and even if the publication was without authority only the Parliament can take
action. CK Daphtary (petitioner), stated that Art. 19(1) (a) and Art. 19(2) don’t even apply by virtue of Art. 129. He also stated that the existing contempt law was not ‘law’ as defined under Art. 13 (3)(a) and that the existing law falls under reasonable restrictions.
HELD:
The question whether the existing law is ‘law’ under Art. 13 (3)(a) has not been decided upon as it was agreed that this law falls within the reasonable restrictions to Art. 19 (1), in
public interest based on a number of precedents. With regard to whether the contempt was committed by circulating a pamphlet, the test is whether the impugned publication is a mere defamatory attack or if it is calculated to interfere with the due course of justice & proper administration. Only in the latter case will it be punishable as contempt. The publication of a disparaging statement will be an injury to the public if it tends to create an apprehension in the minds of people regarding
the integrity, ability or fairness of the judge. The US law with this regard is different from the Indian position on free speech. The court did not agree with the contention of OPG that the administration of justice is not affected by an attack on the character of the Judge, and that after a case has been decided, the severe and unfair criticism of a decision must be balanced against the harm of not criticizing it at all. It was held that an attack of this sort undermines confidence in
the judiciary which in turn causes the due administration of justice to suffer. Art. 129 and 142(2) enables the Supreme Court to punish for contempt of itself. Though OPG tried to justify his position in the counter-affidavit, it appears that the person who drafted it did so with a view to bring facts within the meaning of the expression ‘misbehaviour’ [Art. 124 (4)]. This is not so. On the contrary, these statements
themselves amount to gross contempt of court and the judges. Though OPG stated that the pamphlet was distributed by members of the Parliament, no
complaints came against them. Regarding his Art. 105 (2) defence, the Court felt that this article did not apply to this particular case as nothing showed the publication of the pamphlet as one under the authority of the Parliament. Also, the protection u/s. 3 is only given to newspapers and
17
broadcasting agencies and available only if such publication is made without malice for
the public good. This is not so in the present case. The contention of OPG that Hegde J., the second judge, was not involved in the allegation and that his name was included by the petitioners was dismissed on the grounds that it was common knowledge that Hegde J was also hearing the case and there is no more flagrant contempt of a Judge than to say that he surrendered his own
judgement in deference to or on dictation by another judge sitting with him. It has been held that OPG should file his affidavit on the merits of the case without trying to justify the contempt. If evidence were to be allowed to justify allegations amounting to contempt of court it would tend to encourage disappointed litigants to avenge their defeat
by abusing the judge. With regard to maintainability and the allegation by OPG that the petitioners have no locus standi, it was held that the Court could take suo moto cognisance of contempt
issues. Also, the advocates are entitled to bring its to notice any contempt. With regard to the impeachment motion – OPG alleged that he had already put it into motion in by a writ petition in 1969, but it was held that this is no defence to the
commission of contempt by circulation of the pamphlet. The allegation that if the judge did not take cognisance of the contempt, then it was not the place of the petitioners to do so and the allegation that this petition itself was a
contempt of court, were summarily dismissed. With respect to Respondent 2, Mela Ram, it was held that due to his apology, no further
action needs to be taken. From the facts a heavy sentence is called for, but the court leniently imposed only a sentence of simple imprisonment for 2 months for OPG.
In the Matter of Mr ‘G’ a Senior Advocate of the Supreme Court AIR 1954 SC 557 B. Kumar Mukherjea, Sudhi Ranjan Dase, Vivian Bose, Ghulam Hasan, B. Jagannadhadas Facts ‘G’ was an advocate in Bombay High Court and Supreme Court. He entered into agreement with his client, in which the client had to share 50% of recoveries made in proceedings in matters which ‘G’ was engaged. The same was reported to the High Court which referred to Bombay Bar 18
Council – 3 members investigated – found – amounted to professional misconduct. High Court agreed and ‘G’ was suspended for 6 months. HC judges considered they had no power to affect his position as advocate of Supreme Court – submitted copy of judgment to Supreme Court. Based on this SC issued notice to ‘G’ asking to show cause why disciplinary action should not be taken. (Under Order IV Rule 30 of the Supreme Court Rules) At the same time G filed petition under Article 32. G in writ petition stated that he was reluctant to work on terms (which involved sharing the recovery as client was not in a position to pay his fees) but he was insisted to do so and if he didn’t do so, the client would lose his genuine claim – he reluctantly agreed. Issue Whether agreement with client to share recoveries made – amounts to professional misconduct? Held G - Specially privileged class of persons, subject to certain disabilities which do not attach to other men and which do not attach to them in a non-professional character. Bound to conduct himself in a manner befitting the high and honourable profession to whose privileges to he has been admitted and if he departs from the high standards which that profession has set for itself and demands of him in professional matters, he is liable to disciplinary action. This contract would be legally unobjectionable if lawyer not involved – there is nothing morally wrong, nothing to shock the conscience, nothing against public policy, public morals in such transaction per se (only if legal practitioner not involved). But are these permissible under rigid rules of conduct of members of a close professional preserve so that their integrity, dignity and honour may be place above breath of scandal. Real question – whether this kind of conduct is forbidden or whether if once forbidden, has the ban been removed either directly or by implication or by legislative action. Such practice was prohibited as far as English barristers and solicitors in England were concerned. (G- initially was with Bar in England) G - Argued that this rule applied to only to members of English Bar and was abrogated in India in 1926 (Indian Bar Councils Act was passed) 19
Difference between barristers and other classes of lawyers - examined in context of such agreements; observed – judgments referred deal with advocates and even where these advocates were barristers the matter touched them as advocates of an Indian High Court and not because of their special status as barristers. Rules laid down in decisions govern all advocates whether barristers or otherwise. SC quoting Bombay High Court termed it – highly reprehensible, whether his practice be before the HC or in mofussil, he will by so doing offend the rules of his profession and so render himself liable to disciplinary jurisdiction of the court. ‘G’ argued – Section 3 of Legal Practitioners (Fees), 1926 changed it – now every legal practitioner can settle terms of engagement & fees by agreement with client – this entitles him to enter into any agreement generally permitted by law – legal practitioners governed by law of contract not by rules imported from other countries. Court did not agree – because LP(F)A does not deal with professional misconduct – dealt by Bar Councils Act – no modification in disciplinary jurisdiction of HC ‘G’ relied on practice in American states where agreement by attorney to purchase part of subject matter of litigation was upheld - relied on to show contract of this kind cannot be dismissed as reprehensible or morally wrong. For historical reasons court decided not to look into that! The 1937 ABA rule prohibits such practice. No reason to import the American practice which is frowned upon even there. In a country like ours where ignorance and illiteracy are the rule – maintaining high standards is essential. Conduct of G – amounts to professional misconduct. In view of personal attacks on CJ in his writ petition questioning his goof faith and attributing malice – not to be dealt with lightly – suspended for 6 months.
CHANDRA SHEKHAR SONI (Appellants)v. BAR COUNCIL OF RAJASTAN(Respondents) (1983) 4 SCC 255 (5 page) Coram: 3 judges – A P Sen, E S Venkataramiah& R B Misra
20
Facts: 1. This appeal before the Supreme Court is against an order of the Disciplinary Committee of the Bar Council of India. The Bar Council of India had upheld the order of the Disciplinary Committee of the State Bar Council of Rajastan, by which the appellant had been held guilty of professional misconduct and suspended from practice for a period of three years under Section 35 of the Advocates Act, 1961. 2. There were two charges against the appellant. i) The first charge was that he changed sides in a criminal case. The State Bar Council gave the appellant the benefit of the doubt and held that though his conduct was unprofessional, it was not tantamount to professional misconduct. The Bar Council of India disagreed with the State Bar Council. The Supreme Court also concurred with the Bar Council of India. Observed: It is not in accordance with professional etiquette for an advocate while retained by one party to accept the brief of the other. It is unprofessional to represent conflicting interests except by express consent given by all concerned after a full disclosure of facts or at least with permission from the learned magistrate. Counsel’s paramount duty is to the client and where he finds there is conflict of interests, he should refrain from any conduct harmful to his client. ii) The second charge was that the appellant had taken money from a client in another case for the purpose of giving bribe. The Complainant Bhaniya and his wife Galki were assaulted and sustained head injuries. The Radiologist, after examining their Xrays, referred the matter to a specialist. The appellant approached Bhaniyaon the representation
that
he
would
get
them
a
favourable
report
from
the
radiologist/specialist if they engaged him as counsel and paid a certain sum of money (300 Rs.) to the doctor. The State Bar Council found the appellant guilty of reprehensible conduct. The Bar Council of India upheld this disbelieving all versions of the appellants defence. The Supreme Court concurred with the finding. Observed: An advocate shall use his best efforts to restrain and prevent his client from resorting to unfair practices. Advocate shall at all times conduct himself in a
21
manner befitting his status as an officer of the Court, privileged member of the community and gentleman. 3. Other observations - Regarding quantum of punishment: The State Bar Council directed that the appellant be suspended from practice for a period of three years as he had brought, by his conduct, disrepute to the legal profession. Bar Council of India upheld the sentence. The Supreme Court, however, felt that the sentence is rather severe considering the appellant is merely a junior member of the bar. While strongly condemning the appellants conduct, the Supreme Court reduced the period of suspension from three to one year. 4. Held: Guilty of Professional Misconduct _______________________________________________
D.S.Dalal v. State Bank of India & Ors., 1993 Supp (3) SCC 557 FACTS: D S Dalal, a practising advocate in Delhi, had his name removed from the rolls of advocates of the Bar Council of Delhi and the sanad1 granted to him had been withdrawn. An Appeal was filed under s.30, Advocates Act against the Bar Council of India. SBI lodged a complaint before the Delhi Bar Council alleging that the appellant along with two others was practising under the name and style of “M/s. Singh and Company”, a firm of advocates and solicitors. These advocates were engaged by the SBI to file a recovery suit against M/s Delhi Flooring (Pvt.) Ltd for the recovery of a certain sum. Mr. D.S. Dalal was one of the advocates, also a partner at the firm, who were conducting the cases for and on behalf of the Firm. It is the case of the complainant that in 1975 the files relating to this recovery suit was handed over to the firm and the firm had consequently submitted a bill for filing the recovery suit, 1 Sanad means a license to practice law. 22
including professional fees and other miscellaneous charges. 1/3rd of this was paid to the Firm which was acknowledged by the firm under a receipt which was placed on record. However, the Firm did not inform the bank as to whether the suit was filed and if so what was the state of the proceedings. The bank wrote a letter to the firm asking for a copy of the plaint within a set time failing which the bank would be compelled to withdraw the case from the firm. At that stage, one of the partners wrote back to the bank stating that the suit had been filed on that day. Thereafter the bank received no communication from the firm despite repeated reminders and not informed in any manner on the progress of the case. The lack of response prompted the Bank to engage the service of another Advocate, Mr. Arora, to find out what happened to the suit filed. It was informed that the suit filed was returned by the original branch to the Registry of the High Court with objections and the entire suit paper-book had been returned to Mr B. Singh, another partner of the firm, for removing the objections and thereafter the suit had not been refilled in the Registry of the High Court of Delhi. ISSUE: Advocates Act, 1961- ss. 35, 36 & 38. The appellant and his associated were alleged to be guilty of serious professional misconduct. It was further claimed that they had misappropriated the money paid to them and also that the files were not yet returned. The complaint was transferred from the Disciplinary Committee of Bar Council of Delhi to the Bar Council of India as the case was pending for over a year. Despite notices being sent, the orders had to be passed ex parte. Later on the application of the appellant the ex parte order was set aside conditionally permitting the appellant to participate in the proceedings. The evidence was concluded, arguments heard and the order was reversed. BCI observed that the respondents had throughout adopted tactics of non-coopertaion purposely with a view to protract the proceedings unnecessarily. The case against Dalal and Singh were proved beyond reasonable doubt and their names were removed from the rolls of BCD and the sanads granted to them were also withdrawn.
23
Singh filed a review petition which was still pending, while Dalal appeared on appeal before the Supreme Court. The Bar Council has ordered stay of the order and Singh is continuing his legal practice. The appellant argued that the files were misplaced/lost and this fact was intimated to the Bank vide a letter informing them about the suit file being not traceable and further that the record of the suit was to be restricted and refilled. HELD: The letter referred to by Singh was not produced before the BCI and there is no evidence on record to show that the files were misplaced/lost but there was evidence to show that the files were indeed returned from the Registry of the High Court. The guilt of the respondents was proved beyond reasonable doubt. The Court upheld this judgement of the BCI and dismissed the appeal without costs.
Daroga Singh and Ors. v. B.K. Pandey Citation:(2004) 5 SCC 26 Total Number of Pages: 17 Decision by:2-Judge Bench of the SC on appeal against Patna HC order Facts: In the present case, Shri D.N. Barai, Ist Additional District and Sessions Judge, Bhagalpur was attacked and assaulted by a large number of non-uniformed police officers, armed with lathis and other weapons and shouting slogans following the day on which the bail petition of Investigating Officer Jokhu Singh was dismissed for withdrawal by the party. They demanded the unconditional release of Singh who had been remanded to judicial custody, in accordance with a non-bailable warrant that had been issued against him by the said Magistrate, for his continual failure to appear for cross-examination before the Court despite repeated notices and show causes having been issued. The 5thAddl. District &Sessions Judge and the District & Sessions
24
Judge submitted reports to the High Court which disclosed the names of police officials who were identified by the court staff, ShriBarai and the lawyers. On the basis of these reports, proceedings under the Contempt of Courts Act, 1926 were initiated in the High Court of Patna and a direction was issued to the Registry to issue notices to the above referred persons along with a copy of the report, containing allegations against the concerned persons, calling upon them to show cause as to why suitable action be not taken against them for the alleged misconduct. The Director General of Police found the said officers, guilty for the alleged incident subsequent to which the State Government suspendedthe officials from service. A Commission of Inquiry was also set up under the provisions of the Commission of Inquiries Act, 1952. Show cause notices were issued to 26 officers, as to why they should not be proceeded against for criminal contempt. After considering the evidence on record, eight persons were ordered to undergo simple imprisonment for two months whereas ‘the ring leader’ who was found to have incited the act was to undergo three months. The present appeal was preferred against the said decision.
Judgment: Mainly, three contentions were by all the appellants: (i)
The appellants contended that since the alleged contempt was that of a Court subordinate to High Court and the allegations made constituted an offence punishable under Section 228 IPC, the High Court could not take cognizance as it was barred from doing so under proviso to Section 10 of the Contempt of Courts Act, 1926. The Court held that what is made punishable under Section 228, IPC is the offence of intentional insult to a Judge or interruption of court proceedings, but not as a contempt of Court. The definition of criminal contempt is wide enough to include any 25
act by a person which would either scandalize the court or which would tend to interfere with the administration of justice. It would also include any act which lowers the authority of the Court or prejudices or interferes with the due course of any judicial proceedings and is not limited to the offering of intentional insult to the Judge or interruption of the judicial proceedings. The effect of the acts of the contemnors has the tendency to effect the entire judiciary in the country and is a dangerous trend which has to be curbed. If for passing judicial orders to the annoyance of the police the presiding officers of the Courts are to be assaulted and humiliated, the judicial system in the country would collapse. (ii)
The second contention that was raised by the appellants was that the High Court could not suomoto take action for the criminal contempt of a subordinate court, unless a reference was made to it by the subordinate court or a motion was made by the Advocate General under Section 15(2). The Court held that the phrase "courts subordinate to it" used in Section 10 is wide enough to include all courts which are judicially subordinate to the High Court, even though administrative control over them, under Article 235 of the Constitution, does not vest in the High Court. Under Article 227 of the Constitution, the High Court has the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. Harmoniously construed, Section 10 and Section 15(2) do not deprive the High Court of the power to take cognizance of criminal contempt of a subordinate court, on its own motion, also. If the intention of the legislature was to take away such a power from the High Court, it would have been provided so in unequivocal language.
(iii)
The third contention that was raised was that the standard of proof required in a case of criminal contempt is the same as in a criminal charge and therefore, the charge of criminal contempt has to be proved beyond reasonable doubt. The Supreme Court held that the procedure prescribed under the CrPC or under the Evidence Act is not attracted by proceedings under Section 15 of the Contempt of Courts Act. The High Court can deal with such matters summarily and adopt its own procedure. The only caution that has to be exercised by the Court is that the procedure 26
followed must be fair and that the contemners are made aware of the charges leveled against them and given a fair and reasonable opportunity to be heard. The Judge has to remain in full control of the hearing of the case and immediate action is required to be taken to make it effective and deterrent. When a judge is attacked by persons on whose shoulders lay the obligation of maintaining law and order and protecting the citizen against any unlawful act, the act must be severely condemned. The police personnel is deployed in the Court campus for the purpose of maintaining order and to see that not only the Judges can work fearlessly in a calm, cool and serene atmosphere but also to see that anyone coming to the Court too feels safe and secure. Every participant in court proceedings is either a seeker of justice or one who comes to assist in administration of justice. A policeman should never forget that, like every other citizen he too is subject to the Rule of Law, and that he who enforces law must live by the law. Decision: Appeals were dismissed and the disciplinary authorities, the Criminal Courts and the Commission before whom disciplinary proceedings, the prosecutions and enquiry respectively were pending were directed to conclude the proceedings and trial at earliest.
DR. D.C. SAXENA, CONTEMNOR V. HON’BLE THE CHIEF JUSTICE OF INDIA Bench: K. Ramaswamy, N.P. Singh and S.P. Bharucha, JJ Court: Supreme Court Citation: (1996) 5 SCC 216 Pages 53
FACTS 27
In this case the petitioner initiated a public interest litigation Under Article 32 to direct Shri RV. Narsimha Rao, the President of Indian National Congress and the Prime Minister of India to pay a sum of RS- 8.29 lakh and odd said to be due to the Union of India for the use of Indian Air Force aircraft or helicopters from October 1, 1993 to November, 30, 1993. The Solicitor General was asked to verify the contents of the petition and in pursuance of which he placed before the court the original records. Thereafter the petition was dismissed by the Bench consisting of the Chief Justice of India Mr A.M. Ahmedi, Justice SC. Sen and Justice KS. Panipoornan. Another petition was filed by the petitioner against the Chief Justice of India, Mr AM.Ahmadi. In the petition he several averments against the learned Chief Justice of India Mr AM. Ahmadi-and sought for declaration that Justice AM.Ahmadi is unfit to hold the office as the Chief Justice of India and he should be stripped off his citizenship. He wanted a direction for registration of an FIR against him under various provisions of the Indian Penal Code for committing forgery and fraud and under the Prevention of Corruption Act. He wanted a direction for prosecution of Justice A.M. Ahmadi under the Prevention of Corruption Act and a direction to Justice Ahmadi to reimburse from his pocket to the public exchequer the entire loss caused to the State as a consequence of non-payment of the dues by Shri RV. Narsirnha Rao with interest at 18% per annum. The petitioner submitted inter alia that it was improper for the respondent to have heard the earlier writ petition and that the respondent had attempted but failed to browbeat the alleged contemnor; the dismissal of the earlier writ petition without recording the reasons there for invited the comment, “so much for the vaunted adherence to the twin principles of transparency and accountability”. The grounds for the relief which the alleged contemnor sought, inter alia, were: “for causing fabrication of court proceedings”; “for wilfully and advertently violating the fundamental rights of not only the petitioner as an individual, but that of the people of India...”; “for violation of the sacred oath of office by the respondent”; “for deliberate and wilful failure to perform fundamental duties and stultifying their performance by the petitioner”; and “for allowing his son who is practising in the Supreme Court to stay with him in his official residence, and presumably misusing official facilities and prestige of office of Chief Justice of India”
28
The second writ petition came up for admission before a Bench comprising Verma, NP Singh and Bharucha, JJ. After hearing the petitioner in person, the petition was dismissed. But observing that the allegations made therein were reckless and scandalous to which the petitioner stood by, the Court issued contempt notice to him. The petitioner contended that the Contempt of Court Act is ultra vires the Article 19(1) (a) of the Constitution but the court did not find it relevant to the case at hand as the Supreme Court has taken suo motu cognizance of contempt of the Court under Article 129.
ISSUE Whether the imputations made by the alleged contemnor are scurrilous attacks intended to scandalise the Court and do they not impede due administration of justice? To what extent the petitioner is entitled to the freedom of those expressions guaranteed under Article 19(l) (a)? If they are found scandalous, whether he would get absolved by operation of Articlel9 (1) (a)? DECISION The court observed that the freedom of speech and expression was required to be restricted in the interest of the state therefore Supreme Court made it clear that the freedom of speech and expression is subject to Articles 19(2), 129 and 215. Under Article 19(2) the restriction may be imposed on the freedom of speech and expression if it amounts to contempt of Court. In the exercise of the right of the freedom of speech and expression a person cannot be allowed to lower the prestige of the court in the eyes of the people. Freedom of speech and expression brings within its ambit the corresponding duty and responsibility and puts limitation on the exercise of that liberty. It does not give licence to make unfounded allegations against any institution, much less the judiciary. The Court has made it clear that fair criticism of the judicial proceedings outside the pleadings of the Court is a democratic feature so as to enable the Court to look inward into the correctness of the proceedings and the legality of the orders of the Court by the Court itself for introspective. But a party has a duty and responsibility to plead as a part of the averment or the prayer in the relevant portion with language befitting with the dignity of the 29
Court and the judicial process and not in self-abuse of the freedom of expression given under Article 19(1) (a). Article 19(2) creates an embargo on the freedom of expression and excludes from its operation the power of contempt of Court under the Act. The Supreme Court being Court of record, its power under Article 129 is independent and is not subject to Article 19(1) (a). Article 19(2) excludes the operation of Article 19(1) when speech or expression is trapped in contempt of Court or tends to trench into it. When the Contempt of Court is committed by a litigant, the freedom of expression being contemptuous becomes punishable under Article 129 of the Constitution. The Court has also made it clear that counsel or party appearing before the Court should maintain dignity and decorum of the court and should not indulge in writing in pleadings, scurrilous allegations or scandalisation against the Judge or Court. If the reputation and dignity of the judges who decides the case are allowed to be prescribed in the pleadings, the respect for the Court would quickly disappear and independence of the judiciary would be a thing of the past. The statement in the plaint that the Chief Justice of India gets no judicial protection unlike the President for being prosecuted, even which Chief Justice,A.M. Ahmadi holds office as Chief Justice of India and is accordingly liable to prosecution. This statement not only impinges upon the protection given by Article 124(4) and under relevant provisions of the Protection of Official Act, ex facie it is an outrageous tendency to lower the authority of the Court and interference with judicial administration. Actually the scandalous statements in the pleading cannot be taken as a valid method of initiating the action for the removal of a Judge on the ground of misconduct or incompetency. An important, issue is whether the modification of the contemptuous statements in the plaint will affect the contempt liability. In this case the Supreme Court has held that the modification of the statement would not affect his contempt liability. Even if, the contemnor withdraws or files statement in the modified form what the Court required to do is whether his statements made in the writ petition originally filed constitute contempt of Court or not and modification of the above statements would not be of material. Thus if the statement made in the petition are contemptuous the contempt liability cannot, be avoided by modifying the statements subsequently.
30
The contemnor, thus, was convicted for contempt and sentenced to undergo simple imprisonment for a period of three months and to pay a fine in the sum of Rs. 2000. In default of such payment within three months he was to undergo further simple imprisonment for a period of one month.
Delhi Judicial Services Association v. State of Gujarat Citation: (1991) 4 SCC406 3 Judge Bench No. of Pages: 62 BRIEF FACTS The newly appointed Chief Judicial Magistrate (hereinafter “CJM”) of Nadiad found that the local police was not cooperating with the Courts in effecting service of summons, warrants and notices on accused persons, as a result of which the entire judicial process was being delayed. CJM complained to the SP and DGP, which annoyed the Inspector who in turn withdrew the constables posted in the CJM Court. When the CJM directed the police to withdraw contempt cases on their tendering unqualified apology, the Inspector complained about the CJM to the Registrar of the High Court.
Later, during discussion of a case, the CJM was invited over to the police station by the Inspector on the pretext of verification of papers. He went. On reaching there, he was forced to consume alcohol and on his attempted refusal, he was handcuffed and tied with a rope. A panchnama was prepared so as to implicate the CJM under the Bombay Prohibition Act under the dication of the Police Inspector, and was signed by 2 others. Following this, the CJM was brought to the Civil Hospital, where he was made to wait outside for 30 minutes in full public view. Furthermore, a press photographer was called and policemen posed with the CJM who was allegedly in a drunken state. This photo was published in the newspapers. At the hospital, the request of the CJM to inform the District Judge of the entire issue was refused by the Police Inspector. On examination at the hospital, the body of the CJM was found to have a number of injuries and the Chemical Examiner concluded that there was alcohol content in the body but the quantity of alcohol was not determined. When the lawyers arrived for getting the CJM out on bail, the Police registered cases under Section 336 and Section 506 of the IPC as well, so as to make the offences non bailable. The SP did not take any action on the matter, but created an alibi for himself instead. 31
A number of writ petitions and contempt petitions were filed before the SC from all across the country, and the Court took suo motu cognizance of the matter. The facts were founded by a High Court judge who was appointed by the SC as Commissioner to hold enquiry and submit report with regard to allegations in the petitions. ISSUES INVOLVED Whether incident constituted contempt of Court? Whether SC has inherent jurisdiction to punish for contempt of inferior Courts under Art. 129, and whether such jurisdiction is limited under the Act? HELD Criminal Contempt is wide enough to include any act that tends to interfere with the administration of justice or lowers the authority of the Court. The Court protects a public interest while using contempt power. It is not to protect the Court from insults to its dignity for its own sake, but because there exists a public interest in preserving the decency and decorum of the Courts. It is to protect the right of the public to justice which is not perverted or obstructed. Facts show that the incident was not an assault on an individual officer of the Court, but on the institution of the judiciary itself. The incident created ripples across the Country and highlighted a dangerous trend where policemen would try to exert their authority. The lower Courts cater administration of justice to the masses, and it is in public interest that their authority be preserved. The SC has power of judicial superintendence and has a duty to protect the dignity of inferior Courts. The power conferred on the SC by virtue of Articles 32, 136, 141 and 142 forms part of the basic structure of the Constitution, which cannot be curtailed by any law. Since the SC and the HC exercise concurrent jurisdiction under articles 32 and 226, and since the SC enjoys inherent powers under Article 129, the SC’s power to punish for contempt of subordinate Courts cannot in any way be inconsistent with the Constitutional scheme, even though it is ordinarily the duty of the High Court to do so. The prescription of power for the High Courts to take action against for contempt of subordinate Courts under Section 15 of the Contempt of Courts Act, and the prescription of appellate power for the Supreme Court under Section 19 does not affect the inherent power of a superior Court under the Constitutional scheme. Constitutional powers stand on a higher pedestal. The use of the term “including the power to punish for contempt of itself”, as used in Article 129 must be construed as an inclusive provision, which does not restrict the power of the Supreme Court. In fact, the term clearly indicates that the SC has power to punish for contempt of itself and also for something else, which may fall within the inherent power of another Court of record. If Article 129 is capable of being interpreted in two manners, such an interpretation as would preserve the jurisdiction of the Supreme Court must be accepted. That being said, the SC must exercise its inherent power to punish for contempt of subordinate Courts sparingly, and only in exceptional circumstances such as the facts that arose in this case, where 32
the functioning of subordinate Courts all over the Country were adversely affected and the administration of justice was paralysed. The SC took into consideration the different degrees of the participation of the various culprits in this episode and punished them in accordance with the degree of their involvement in the matter. State Government was asked to take action against the DGP as well who was indifferent in the matter, since he is the head of the Police and all that jazz. The Court further laid down non-exhaustive guidelines which should be adhered to in case of arrest and detention of a Judicial Officer. Guidelines to be enacted by State Governments and High Courts: Arrest should be only after intimation to a District Judge or the High Court as the case may be. In case of necessity of immediate arrest, only a technical arrest or a formal arrest may be made. Arrest must be communicated to the District and Sessions Judge of the concerned district, if available. Such arrested judicial officer must not be taken to the Police Station without the order or directions of the concerned District and Sessions Judge. No statement should be recorded or no chemical examination be made of such Judicial officer, other than in the presence of his legal adviser or another Judicial officer of equal or higher rank, if available. No handcuffing. No judicial officer must visit the Police Station on his own for his official duties without intimating the District and Sessions Judge. The Supreme Court also quashed the criminal proceedings pending against the CJM. Other Provisions referred to in the Judgement Article 136 of the Constitution: Supreme Court’s appellate power under this provision is plenary. (absolute) Even though the practice of the Court is that all other remedies must be exhausted before the matter reaches the SC, this does not divest it of its wide powers of judicial superintendence. This jurisdiction is unaffected by Articles 132, 133, 134 and 134A. The HC has powers to correct the order of subordinate Courts under Article 227. Article 136 is of much wider amplitude. Supreme Court has concurrent jurisdiction with the High Courts, in the matter of contempt of subordinate Courts. Superior Courts of Record are not similar to Courts created by virtue of statute. They have the power to determine their own jurisdiction, and no matter is beyond their jurisdiction unless it is shown to be so under the Constitution.
33
Section 15 and Section 19, Contempt of Courts Act: The procedural aspects with regard to the High Court having original jurisdiction and the SC having appellate jurisdiction in cases of contempt of subordinate Courts does not curtail the inherent power of the Court, but are only intended to save the time of the Court from hearing frivolous contempt cases. Entry 77, List I read with Article 246 of the Constitution: Parliament may enact law, which can prescribe procedure to be followed by the SC in punishing for contempt of itself, and the maximum punishment. However, it cannot abridge the wide powers under Article 129. Therefore, Contempt of Courts Act, 1971 does not impinge upon the powers of the SC under Article 129. Article 142(1) r/w Articles 32 and 136: With regard to the quashing of Criminal Proceedings pending against the CJM, it was held that the power to “do complete justice”, along with the plenary and residuary powers under Articles 32 and 136 justify quashing of criminal proceedings even though there is no provision like Section 482 of the CrPC, which authorizes the SC to quash criminal proceedings to prevent the abuse of the Court. (Section 482 authorizes the HC to do so and not the SC.) The power under Article 142 (1) stands on an entirely different footing and cannot be limited by any Act of Parliament.
Article 20(3): With regard to the contention that the facts found by the Commission could not be taken into account as the facts were found after cross examination of the police officers against whom contempt petitions were pending, it was held that offences of contempt are not like any other ordinary offence, and therefore, it was not hit by Article 20(3). Three conditions must all exist together for the application of Article 20(3): Person must be accused of an offence. He should be compelled to be a witness. Against himself. Contempt proceedings were distinguished on the following 2 grounds: Contemnor is not in the same position as an ordinary “accused.” Even if contemnor is found guilty, Court may not punish him if he tenders an unqualified apology. This is no defence in an ordinary criminal proceeding. The Court is both the accuser and the Judge in contempt cases. Therefore, the accused do not qualify as “persons accused of an offence”, as under Article 20(3) and their testimony could be recorded. Article 374(2): Though Federal Court and Privy Council decisions are entitled to great respect, they are not binding on the Supreme Court. 34
E.M. SHANKARAN NAMBOODRIPAD v. T. NARAYANAN NAMBIAR CITATION - (1970) 2 SCC 325 BEFORE - M. HIDAYATHULLAH, C.J, G.K. MITTER AND A.N. RAY, JJ. (15 page case) Facts: This is an appeal from the conviction for the contempt of court of Rs 1000 fine or simple imprisonment for one month by the by the majority opinion (Mathew, J., dissenting) of the Kerala High Court, certified as fit for appeal under Article 134(1) C of the Constitution. The conviction is based on certain utterances of the appellant, when he was Chief Minister, at a Press Conference held by him at Trivandrum, on November 9, 1967. The report of the Press Conference was published the following day in some Indian newspapers. The offending passages of the news report of the Press Conference stated inter alia “Marx and Engels considered the Judiciary as an instrument of oppression and even today when the State set up his (sic), not undergone any change it continues to be so. The Judges are guided and dominated by class hatred, class interests and class prejudices and where the evidence is balanced between a well-dressed pot-bellied rich man and a poor ill-dressed and illiterate person; the judge instinctively favours the former. Election of Judges would be a better arrangement, but unless the basic state set up is changed it cannot solve the problem”. The Chief Minister added even where the judiciary is separated from the executive it is still subject to the influence and pressure of the executive. The Judiciary he argued was only an institution like the President or Parliament or the Public Service Commission and even the President is subject to impeachment, after all, sovereignty rested not with any one of them but with the people. He also said that he did not subscribe to the view that it was an aspersion on integrity when he said that Judges are guided and dominated by class hatred and class prejudices and “The High Court and the Supreme Court can haul me up, if they want”. 35
In his affidavit before the High Court the Chief Minister explaining his Press Conference stated that it did not offend the majesty of law, it contained only a fair criticism of the system of judicial administration and he considered that it was not only his right but also his duty to educate public opinion and that it could not be construed as contempt of court. Issues: 1. Is the concept of scandalizing the judges and scandalizing whole judicial system contempt? Has these concepts gone into desuetude? 2. Is the law of contempt encroaching upon the guaranteed freedom of speech and expression in Article 19 (1) (a) of the Constitution? 3. What is the import of the teachings of Marx, Engels and Lenin — Is Appellant guilty distortion of these teachings? 4. Whether imputing class bias and attack on good faith of the judges by the appellant contempt? Issue 1 – Held (i) Scandalising the judge is a chief form of contempt. Scandalising the Judges or the courts occurs, when the conduct of a person tends to bring the authority and administration of the law into disrespect or disregard and included all acts which offend its dignity, affront its majesty or challenge its authority. Such contempt may be committed in respect of a Single Judge or a single court but may, in certain circumstances, be committed in respect of the whole of the judiciary or judicial system. (ii) It is not correct to say that the species of contempt called “scandalising the court has gone into desuetude”. Issue 2 – Held (i) The right to freedom of speech in Article 19(1)(a) is subject to the restriction Article 19(2) which makes an exception in terms of contempt of court. These provisions are to be read with Articles 129 and 215 which specially confer on this Court and the High Courts the power to punish for contempt of themselves. While the right of freedom speech and expression is essential to a free society, the Constitution as itself imposed restrictions in relation to contempt of court
36
and it cannot therefore be said that the right abolishes the law of contempt or that attacks upon Judges and courts will be condoned. (ii) Freedom of speech and expression will always prevail except where contempt is manifest mischievous or substantial. Issue 3 & 4– Held (i) The statement of the appellant is based on the teachings of Marx, Engels and Lenin. The teachings of Marx, Engels and Lenin are different. Marx, Engels and Lenin thought in terms of “withering away of the state”. In all their writings there is no direct attack on the judiciary selected as the target of people’s wrath, nor are the judges condemned personally. Engels regarded courts as are of the means adopted by the law for effectuating itself. He only said that judicial functionaries must be divested of “sham independence” which marked their subservience to succeeding governments; he was not charging the judiciary with taking sides but only as an evil adjunct of the administration of class legislation. He said the fault was with the State and the laws, and not with the judiciary. Either the appellant does not know the teachings of Marx, Lenin and Engels or has deliberately distorted their writings for his own purpose. (ii) The Courts in India are not sui generis. They function under the Constitution which alone is supreme. The power of interpretation by courts has never been used with bias in favour of government or the rich class. If the Constitution and the law are defective the path of reform is open. The courts cannot be maligned if these is a defect in law. (iii) To charge the judiciary as an instrument of oppression, the Judges as guided and dominated by class hatred, class interests and class prejudice, instinctively favouring the rich against the poor is to draw a very distorted and poor picture of the judiciary. It is clear that it is an attack upon Judges which is calculated to raise in the minds of the people a general dissatisfaction with and distrust of all judicial decisions. It weakens the authority of law and law courts. (iv) Judged from the angle of courts and administration of justice there is not a semblance of doubt that the appellant was guilty of contempt of court. Whether he misunderstood the teachings of Marx, and Engels or deliberately distorted them is not to much purpose. The likely effect of illwords must be seen and they have clearly the effect of lowering the prestige of Judges and 37
courts in the eyes of the people. That he did not intend any such result may be a matter for consideration in the sentence to be imposed on him but cannot serve as a justification. (v) The ends of justice are amply served by (a) exposing the appellant’s error about the true teachings of Marx and Engels (b) and sentencing him to a nominal fee. Fine is reduced from Rs1000 to Rs 50. In default of payment simple imprisonment for one week will follow. With this modification the appeal is dismissed.
E.S. Reddi v. Chief Secretary, Government of A.P. and Anr. Citation: AIR 1987 SC 1550 ; (1987) 3 SCC 258 Coram: A.P. Sen and B.C. Ray, JJ.
Pages: 8
Facts: This is an application made by one T.V. Choudhary, a Member of the IAS, under suspension, for recalling the Court's orders dated May 5, 1986 and August, 11, 1986 passed in Special Leave Petition No. 14045 of 1985, on the ground that they prejudicially affect the applicants. Background: The matter relates to defalcation of a huge amount of Rs.1.50 crores, by certain officers of the State Government whose services were placed on deputation with the Andhra Pradesh Mining Corporation. E.S. Reddy, member of IAS, Andhra Pradesh cadre, who worked as the Vice-Chairman-cum-Managing Director of the Corporation was suspended under Rule 13(1) of the A.P. Civil Services (Classification, Control & Appeal) Rules, 1963. The main grievance of the petitioner in the SLP was that the impugned order of suspension was wholly mala fide, arbitrary and irrational and violative of Article 14 of the Constitution as there was no justification for the differential treatment meted out to him while the applicant T.V. Choudhary, also a member of the IAS, who worked in various capacities viz. as Central Manager, Functional Director, Member, Board of Directors and Vice-Chairman-cum-Managing Director and was involved in the commission of the alleged irregularities, had merely 38
been transferred from the Corporation and posted as Managing Director, A.P. State Textile Development Corporation. The SLP was dismissed on it becoming infructuous, as the State Government on September 6, 1986, based on the directions of the SC, passed orders for suspension of R. Parthasarthy and T.V. Choudhary under Rule 13(1) of the Rules. In the C.M.P. No.25533/86, T.V. Choudhary, a member of the IAS and working as Managing Director of the A.P. State Textile Development Corporation, had made reckless allegations and cast aspersions on the Court. He asserts that: “The order of this Hon’ble Court directing the Government to suspend the other delinquent officers is made without affording an opportunity to the Applicant and presumably without considering the relevant provisions of law, case law and the parameters of judicial power and the necessity to observe the principles of natural justice. It is submitted that the Order of this Hon'ble Court dated 11th August 1986 is illegal, insofar as it directed the Government to suspend the applicant and others, in view of the fact that the Government has exercised its discretion and transferred the applicant taking into consideration the recommendation of the Anti-corruption Bureau. It is well settled that a Court of law cannot compel a statutory authority to exercise its statutory discretion in a particular manner. The legislative will in conferring discretion in an essentially administrative function cannot be interfered with by Courts.” Issue: Responsibility of Senior Advocate in settling pleadings. Held: The court deprecated the conduct of the applicant and stated that the averments are highly objectionable. It was expected that the applicant, who is a very senior member of the Indian Administrative Service, should have shown greater responsibility before making such unfounded allegations and uncalled for aspersions. On drawing the attention of the learned Counsel Shri P.P.Rao, to the improper and objectionable averments made by the applicant, we were given the
39
impression that the application had been settled by the learned Counsel without noticing the offending averments. The court expressed its disapproval of the manner in which the arguments were advanced before it on behalf of the applicant T.V. Choudhary. The court opined that, by virtue of the pre-eminence which senior counsel enjoy in the profession, they not only carry greater responsibilities but they also act as a model to the junior members of the profession. A senior counsel more or less occupies a position akin to a Queen’s Counsel in England next after the Attorney General and the Solicitor General. It is an honour and privilege conferred on advocates of standing and experience by the Chief Justice and the Judges of the Supreme Court. They thus become leading counsel and take precedence on all counsel not having that rank. They should, therefore, act in full realisation of their duty to the Court alongside their duty to their clients and have the grace to reconcile themselves when their pleas and arguments do not find acceptance with the Court. A senior counsel though he cannot draw up pleadings of the party, can nevertheless be engaged “to settle” i.e. to put the pleadings into “proper and satisfactory form” and hence a senior counsel settling pleadings has a more onerous responsibility as otherwise the blame for improper pleadings will be laid at his doors. They should maintain a sense of detachment and nonidentification with the causes espoused by them. In the present case not only were the arguments advanced with undue vehemence and unwarranted passion, reflecting identification of interests beyond established conventions but were of degrees not usual of enlightened senior counsel to adopt. The majesty of law and the dignity of courts cannot be maintained unless there is mutual respect between the Bench and the Bar and the counsel. The application was dismissed for being clearly misconceived, penal cost of Rs.5000 was directed to be paid by the petitioner to the Government. Cases Referred: Conflicting nature of the duties a counsel has to perform: (Roundel v. Worsley (1967) 3 All ER 993, Lord Reid) “Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client's case. As an 40
officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict which may and often does lead to a conflict with his client's wishes or with what the client thinks are his personal interests. Counsel must not mislead the court, he must not lend himself to casting aspersions on the other party by witnesses for which there is no sufficient basis in the information in his possession, he must not withhold authorities or documents which may tell against his clients but which the law or the standards of his profession require him to produce. By so acting he may well incur the displeasure or worse of his client so that if the case is lost, his client would or might seek legal redress if that were open to him.” Counsel’s duty to his client and his duty to the Court: (Roundel v. W (1966) 3 All ER 657, Lord Denning, M.R.) “It is a mistake to suppose that he is the mouthpiece of his client to say what he wants. He must disregard the most specific instructions of his client, if they conflict with his duty to the court. The code which requires a barrister to do all this is not a code of law. It is a code of honour. If he breaks it, he is offending against the rules of the profession and is subject to its discipline.”
Gobind Ram v. State of Maharshtra AIR 1972 SC 989 Coram: 5 Judge bench, Judgement by J. AN Grover FACTS: Recovery suit was filed against the appellant ("A" hereinafter). A made certain allegations against the plaintiff's advocate ("C" hereinafter) in the written statement and stated that he was responsible for the suit. C filed a criminal defamation complaint against A. A filed a transfer application in the defamation case stating that the magistrate is on friendly relations with C and enjoys C's hospitality. The application was dismissed by the Addl. Sessions Judge who also recorded that a report was to be submitted to the HC to take action for contempt of court against A under S. 3(2) of the Contempt of Courts Act. HC convicted A sentencing him to 4 weeks simple imprisonment and 1000 Rs. fine. A filed SLP in SC.
41
Issue: Whether a mere libel or defamation of a Judge amounts to Contempt of Court? Held: The test when deciding each case would be whether the impugned publication is a mere defamatory attack on the Judge or whether it is calculated to interfere with due course of justice by the Court. Only in the latter case it will be punishable as contempt. It is unfortunate that A made allegations about social intimacy of judicial officers which may or may not be defaming the Judges but those allegations did not amount to contempt of court. HC Conviction quashed.
Ex. Captain Harish Uppal Vs. Union of India (UOI) and Anr. [ (2003) 2 SCC 45 ] Coram : G.B. Patnaik, C.J., Doraiswamy Raju, S.N. Variava, D.M. Dharmadhikari and M.B. Shah, JJ. Background : In light of the growing phenomenon of lawyers going on strike at the slightest provocation, writ petitions were filed that raised the question as to whether lawyers have a right to strike and/or give a call for boycotts of Court/s. Also, An interim Order was passed by the Supreme Court in Writ Petition (C) No. 821 of 1990 which directed lawyers to exercise self restraint in situations where they were called on to participate in strikes and boycotts. In spite of the directions, the Bar Council of India had not incorporated them in the Bar Council of India (Conduct & Disciplinary) Rules. The petitioners sought a declaration that such strikes and/or calls for boycott are illegal. Issue : Whether lawyers have a right to strike and/or give a call for boycotts of Court/s. Held : 1. Strikes by Advocates are Illegal and unjustified. They may only protest in a peaceful manner outside Court premises. The High Courts were directed to frame rules under Section 34 of Advocates Act to regulate conduct of lawyers in Courts. 2. There is no fundamental right, either under Article 19 or under Article 21 of the Constitution, which permits or authorises a lawyer to abstain from appearing in Court in a 42
case in which he holds the vakalat for a party in that case. The protest, if any as required, can only be by giving press statements, T.V. interviews, carrying out-of-Court premises banners and/or placards, wearing black or white or any colour arm bands, peaceful protest marches outside and away from Court premises ; going on dharnas or relay fasts, etc. 3. The lawyers holding vakalats on behalf of their clients cannot refuse to attend Courts in pursuance to a call for strike or boycott. All lawyers must boldly refuse to abide by any call for strike or boycott. No lawyer can be visited with any adverse consequences by the Bar Association or the Bar Council and no threat or coercion of any nature including that of expulsion can be held out. No Bar Council or Bar Association can permit calling of a meeting for purposes of considering a call for strike or boycott and requisition, if any, for such meeting must be ignored. Only in the rarest of rare cases where the dignity, integrity and independence of the Bar and/or the Bench are at stake, Courts may ignore (turn a blind eye) to a protest abstention from work for not more than one day. However, it will be for the Court to decide whether or not the issue involves dignity or integrity or independence of the Bar and/or the Bench. Therefore, in such cases, the President of the Bar must first consult the Chief Justice or the District Judge before advocates decide to absent themselves from Court. The decision of the Chief Justice or the District Judge would be final and have to be abided by the bar. If a lawyer, holding a vakalat of a client, abstains from attending Court due to a strike call, he shall be personally liable to pay costs which shall be in addition to damages which he might have to pay his client for loss suffered by him. 4. Grievances redressal committees at taluk level, district level, High Court level and Supreme Court level should be established so that grievances of the advocates at all levels could be resolved. If action is required to be taken on the grievances made by the advocates, it should be immediately taken. If grievances are found not to be genuine, then it should be made clear so that there may not be any further misunderstanding. 5. It was directed that all the Bar Associations in the country shall implement the resolution dated 29th September, 2002, passed by the Bar Council of India, and under Section 34 of the Advocates Act, 1961, the High Courts would frame necessary rules so that appropriate action can be taken against defaulting advocate/advocates.
43
6. Advocates being Officers of the Court are a part and parcel of the judicial system and cannot engage in strikes because strikes interfere with administration of justice. They owe a duty to their client and cannot disrupt Court proceedings and put the interest of their clients in jeopardy Ratio Decidendi: For just or unjust cause strike cannot be justified, as sufferer is society-public at large.
Harishankar Rastogi v. Girihari Sharma and Ors., 19782 SCC 165 Bench – V.R. Krishna Iyer Brief Facts- The petitioner appeared in person and sought permission to be represented by another person who is not an Advocate, in place of an Advocate Amicus Curiae appointed by the Court bringing this case into the ambit of the meaning of S.2(a) of the Advocate,Act1961 Issues and Decision- The court looked into the aspect of right to practice in a court under S30(1) of the Advocates Act subject to reasonable restriction. Not allowing a person to be represented by a non-advocate for any reason will be a denial of justice in a country where illiteracy still prevails. A person who is a party to a proceeding can get himself represented by a non-advocate in a particular instance or case. Practicing a profession means something very different from representing some friend or relation in one case. The court stated the Article 19 does guaranty right to freely practice any profession but the reasonable restriction in this scenario is the Advocates act which entitles the only class of persons eligible to practice the profession of law shall be advocates. Depending on the facts of a case Permission may be granted by the Court taking the justice of the situation and several other factors into consideration for nonprofessional representation. But most important consideration for the court would still be dispensation of justice and the overview that any person with no knowledge of law may not be good enough for a case which deals with a lot of intricate matters.
44
A private person who is not an Advocate, has no right to come to Court and claim to argue for a party. He must get the prior permission of the Court for which the motion must come from the party himself. Even then the court can withdraw the request if it feels that the non-advocate party is reprehensible. Decision – In this case the petitioner showed no confidence in the advocate assigned to him and thus the court considered the assignment of the case to the friend, who seemed to be familiar with the law to proceed with the same. Thus the petition was allowed.
(Appellants) vs. (Respondents) Hikmat Ali Khan
Ishwar Prasad Arya & Ors.
Civil Appeal No. 4240 of 1986, decided on Jan 28, 1997 Judges:
S.C.
Agrawal,
J.
TOPIC: Professional Misconduct & Moral Turpitude Brief Facts: Ishwar Prasad Arya, advocate registered with the BC of UP practicing at Budaun where during lunch interval on (18-5-1971), he assaulted his opponent Radhey Shyam in the courtroom of the Munsif/Magistrate with a knife after which a shot was fired by him with no casualties. After the investigation, he was prosecuted for offences under § 307 IPC (Attempt to Murder) & § 25 of the Arms Act and was convicted by the 1st Temporary Civil and Sessions Judge for 3 years and 9 months respectively for the offences, which was further maintain by the High Court. Before he could be arrested to undergo the punishment, a copy of a letter purporting to have been sent by Shri. L.R. Singh Deputy Sec, Ministry of Home, U.P, Lucknow was received in the Court of the 3rd Additional District & Sessions Judge, Budaun who was responsible for the earlier order executed, on its abolition. In the letter it was stated that the Governor has been pleased to suspend the conviction of the Respondent under Article 161 of the Constitution (Power of Governor to grant Pardon) and until further orders were to remain free. The proceedings 45
were stayed despite repeated enquiries and the sentence awarded suspended till, when on receipt of a crash radiogram message from the Home Ministry, it was found that the mentioned letter was fraudulent and thereupon a warrant for the Respondent's arrest was immediately issued by the court and sent to Budaun Jail. Shri. G.S. Sharma, 3rd Addtl. District and Sessions Judge, sent a complaint containing the above facts to the Chairman, Bar Council of U.P for taking action against Respondent I under § 35 (Punishment for Misconduct) Advocates Act, 1961. On the basis of the said complaint, disciplinary committee (DC) proceedings were initiated against Respondent 1, and found him guilty of gross professional misconduct by taking the benefit of a forged and fabricated document prepared at his behest and directed he be barred from practice as an Advocate for a period of 2 years. He filed an appeal against the BC & DC order and the said appeal was allowed and thus the previous order was set aside on the basis of a lack of material evidence which could reasonable hold Respondent 1 prepared the said Document. The Appellant, Hikmat Ali Khan, submitted a complaint against him to the Secretary of the BC of U.P reminding him of the previous instances of trouble caused by the Respondent which has resulted in this outcome of him remaining scot-free. It was also mentioned in the complaint that the Respondent 1 is noted as a 'Bad Character' in Register No. 8 of the Police Station, Budaun and that a number of criminal cases have been registered against him. It was prayed for that a fresh enquiry in the matter may be made upon him as he is a blot on all other Advocates and thus his registration to Advocacy be cancelled. In the said proceedings, Respondent 1 appeared and filed his written statement after which he did not appear nor participate hence leading to ex-parte proceedings against him. The DC with regard to all the circumstances held that it is unbecoming of an Advocate to earn such a bad reputation and was liable to be punished and be debarred from practice for 3 years. Appeals were filed by both the Respondent & Appellant against the order to be set aside & on the other hand to be enhanced and his to be removed from the roll of Advocates. Both the appeals were disposed of by the DC. Held: In view of the provisions of § 35(b)(reprimand), (c)(suspend) & (d)(remove from rolls) and § 24-A(Moral Turpitude) of the Advocates Act, 1961 , the conduct involving 46
conviction of an offence involving moral turpitude which could disqualify a person from being enrolled as an advocate has to be considered a serious misconduct when found to have been committed by a person who is enrolled as an Advocate and it would call for the imposition of the punishment of removal of the name of the advocate from all the rolls of Advocates. The gravity of misconduct committed by him is such as to show that he is unworthy of remaining in the profession. In the instant case Respondent 1 has been convicted of the offence of attempting to commit murder under § 307 of the IPC and requires him to be directly removed from the Rolls of Advocates. Thus, the appellants appeal is allowed and the order passed by the DC is upheld with the slight modification that instead of his being debarred from practicing for 3 years, His name shall be removed from the Rolls of Advocates. No orders as to costs.
Himalayan Cooperative Group Housing Society v Balwan Singh [2015 SCC OnLine SC 537]
Coram: H.L Dattu, S.A. Bobde and Arun Mishra Background: The appellant is a co-operative society under which the respondents were enrolled for allotment of apartments. The respondents failed to comply with demand for payment and in view of this default a resolution was passed to expel the respondents from membership. The Registrar of Co-operative Societies under Rule 36 of Delhi Co-operative Society Rules confirmed this. A revision petition was preferred before the Financial Commissioner, Government of NCT who reaffirmed the order. The respondents then appeared before the Writ Court. The court observed that the Registrar and revisional authority have not committed any error. However on the request of the respondents seeking additional allotment of apartments to them, the Court issued certain direction for construction of the additional apartments and their allotment to the respondents. The appellant authority had not authorized the learned counsel who had appeared for them to make any concession in favour of the respondents. The preferred a
47
Review Petition which was dismissed and aggrieved by this an appeal was preferred before the Supreme Court.
Issue: Whether counsel appearing on behalf of the appellant makes concession on behalf of the appellant and would such a concession bind the appellant? Held: 1. Lawyer’s are perceived to be their client’s agents. Lawyer’s are also fiduciaries and therefore their duties will sometimes be more demanding than those imposed on agents. Lawyer’s assume all traditional duties that agents owe their principals and this they have to respect their client’s autonomy to make decision at a minimum, as to the objective of the representation and there lawyer’s should follow the client’s instruction rather than substituting his own judgment for that of the client. 2. Rule 15 of the BCI rules mandates that the advocate shall uphold the interest of his clients by fair and honorable means without regard to any unpleasant consequences to himself or any other. Rule 19 prescribes that an advocate shall only act on the instructions of his client or his authorized agent. 3. In Periyar & Pareekanni Rubber Ltd v State of Kerala, it was held that any concession made by the government pleader cannot bind the government. 4. Therefore it is the duty of the advocate to not transgress the authority conferred on him by the client. It is better to seek appropriate instruction from the client. The advocates represents the client before the count and conducts proceedings on his behalf and there is the link between the Court and client. His responsibility is onerous. 5. In the view of the above, the direction issued by the Writ Court and order passed by High Court in review Petition was set aside.
In Re A an advocate SINHA, BHUVNESHWAR P.(CJ) SUBBARAO, K.SHAH, J.C.DAYAL, RAGHUBAR MUDHOLKAR, J.R.
48
CITATION: 1962 AIR 1337 1962 SCR Supl. (1) 288 The advocate on record had sent the Minister of Law of the state of Maharashtra a post card along with a letter advertising and soliciting for work. The same was forwarded by the secretary to the govt. of Maharashtra to the Registrar of this court (SC). When this was placed before the CJ, he directed the registrar to informally enquire whether this letter had in fact been written by him. He admitted to having sent it, but was unaware of committing any breach of etiquette. The CJ constituted a committee and on their recommendation, a tribunal of 3 members of the Bar and notice was served to the advocate to explain his alleged conduct. In reply, he denied having written the letter and claimed the allegations were false and mala fide. He went on to say that even if it were proved that it was written by him, there was nothing unprofessional or objectionable and is not solicitation if one enquires from another whether he wishes to have services of another advocate. When the Tribunal questioned him about whether the post card was sent by him or from his office, he completely denied everything. The tribunal also made him write and sign to compare the handwritings which matched. He was confronted about the admissions made to the Registrar he claimed to not remember details or making certain statements. The Registrar, on being called, affirmed his previous statements. After recording the evidence, the Tribunal was satisfied that it had been written by him and that he was not aware that it amounted to breach of professional etiquette. Supreme Court: When the advocate was to be heard, he denied everything initially, but on being pressed to make a true statement, with his hand writing and the Registrar’s statements, he gave in and admitted to writing it. Held: The advocate has condemned himself a liar and is either ignorant of the rules of the profession or has no regard for its ethics. If he is ignorant, there is inadequacy in his training befitting a member of this profession. If he knew such conduct was improper, he is unworthy of being a member of this profession. Suspension for 5 years.
49
IN THE SUPREME COURT OF INDIA
In Re: S. Mulgaokar Decided On: 21.02.1978Appellants: In Re: S. Mulgaokar Equivalent Citation: AIR1978SC727, (1978)3SCC339, (1978)SCC(Cri)402, [1978]3SCR162 Hon'ble Judges/Coram: M. Hameedullah Beg, C.J., P.S. Kailasam and V.R. Krishna Iyer, JJ.
A news item was published in the Indian Express which was termed to be a milder publication. The erring sentence in the publication was, "So adverse has been the criticism that the Supreme Court Judges, some of whom had prepared the draft code, have disowned it". It was found that the judges of court were not even aware of the contents of the letter before it was sent by the Chief Justice of India to the Chief Justices of various High Courts suggesting, inter alia, that Chief Justices could meet and draft a code of ethics themselves or through a Committee of Chief Justices so as to prevent possible lapses from the path of rectitude and propriety on the part of Judges. The error was pointed out to the Editor of the Indian Express in a letter sent by the Registrar of this Court.
In reply, the Registrar received a letter from the Editor showing that the contents
of the letter, which were confidential, were known to the Editor. Instead of publishing any correction of the mis-statement about the conduct of Judges of this Court, the Editor offered to publish the whole material in his possession, as though there was an issue to be tried between the Editor of the newspaper and this Court and the readers were there to try it and decide it. It was pointed out that the writer of an article of a responsible newspaper on legal matters is expected to know that there is no constitutional safeguard or provision relating to the independence of the judiciary which could possibly prevent Judges themselves meeting to formulate a code of judicial ethics or to constitute a committee to formulate a code of judicial ethics and etiquette. The article proceeded on the assumption that there was already a formulated code of ethics sent to the Chief Justice which in fact was not correct. The counsel appearing for the alleged contemnor to whom the notice was issued tried to convince the court that there was no intention 50
on the part of the writer of the article or the Editor to injure the dignity or position of the court but the intention was only to direct public attention to matters of extreme importance to the nation. Beg, CJ observed that the judiciary is not immune from criticism but when that criticism is based on obvious distortion or gross mis-statement and made in a manner which is designed to lower the respect of the judiciary and destroy public confidence in it, it cannot be ignored. This Court is armed, by Article 129 of the Constitution, with very wide and special powers, as a Court of Record, to punish its contempts. Articles 121 and 211 of our Constitution, prohibiting discussion of the conduct of a Supreme Court or a High Court Judge in the discharge of his duties even by Parliament or a State Legislature, except upon a motion for his removal by the constitutionally prescribed procedure of addresses presented by each House of Parliament after proved misconduct or incapacity of a Judge and resolutions by 2/3 majorities of each House present and voting, are there in our Constitution to ensure this (He relied on the case of Bennet Coleman while delivering his judgement).In fact, nothing more than some suggestions or examples of the kind of conduct which a possible code could deal with were sent to the Chief Justices. If there was anything inappropriate which could be found in those suggestions that could be criticized and set right or discarded. Better suggestions could be made and incorporated in a proper code of judicial ethics and etiquette, if that could be framed. The question whether an attack is malicious or ill-intentioned, may be often difficult to determine, yet, the language in which it is made, the fairness, the factual accuracy, the logical soundness of it, the care taken in justly and properly analyzing the materials before the maker of it, are important considerations. Moreover, in judging whether it constitutes a contempt of Court or not we are concerned more with the reasonable and probable effects of what is said or written than with the motives lying behind what is done. A decision on the question whether the discretion to take action for contempt of Court should be exercised in one way or the other must depend on the totality of facts and circumstances. It seems to me that it was also necessary for me to refer to the reasons why I consider codes of ethics, and, in particular, judicial ethics are necessary. That is a matter of conscience and of my understanding of what is right for a judge to do "without fear or favour, affection or ill
51
will". The Chief Justice made his statement clear and removed the mis-apprehensions, dropped the proceedings. Krishna Iyer, J. while concurring observed: "The contempt power, though jurisdictionally large, is discretionary in its unsheathed exercise. Contempt power is a wise economy to use by the Court of this branch of its jurisdiction. The court will act with seriousness and severity where justice is jeopardized by a gross and/or unfounded attack on the Judges, where the attack is calculated to obstruct or destroy the judicial process. He explained this position through the following principles; 1. The first rule in this branch of contempt power is a wise economy of use by the Court of this branch of its jurisdiction. 2. The second principle must be to harmonise the constitutional values of free criticism, the fourth estate included, and the need for a fearless curial process and its presiding functionary, the judge. Section 2(1)(c) of the Contempt of Courts Act, 1971 provides : Criminal contempt" means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which- (i) scandalises or tends to scandalise, or lowers or tends to lower the authority of any court. This is an extremely wide definition however, all laws related to contempt provisions would fall under Art 19(2)[Reasonable restrictions]. 3. The third principle is to avoid confusion between personal protection of a libeled judge and prevention of obstruction of public justice and the community's confidence in that great process. The former is not contempt, the latter is. 4. The Fourth principle is that the Fourth Estate should be given free play within responsible limits even when the focus of its critical attention is the court, including the highest Court. 5. The fifth normative guideline for the judges is to observe in this jurisdiction is not to be hypersensitive even where distortions and criticisms overstep the limits, but to deflate vulgar denunciation by dignified bearing, condescending indifference and repudiation: by judicial rectitude.
52
6. The sixth consideration is that, after evaluating the totality of factors, if the court considers the attack on the judge or judges scurrilous, offensive, intimidatory or malicious beyond condonable limits, the strong arm of the law must, in the name of public interest and public justice, strike, a blow on him who challenges the supremacy of the rule of law by fouling its source and stream. He relied on the case of Perspective Publications Ltd. v. State of, Maharashtra [1971] 2 S.C.R. 779 Grover, J., speaking on behalf of the Court, reviewed the entire case law and stated the result of the discussion of the cases on contempt as follows : (1) It will not be right to say that committals for contempt for scandalizing the court have become obsolete. (2) The summary jurisdiction by way of contempt must be exercised with great care and caution and only when its exercise is necessary for the proper administration of law and justice. (3) It is open to anyone to express fair, reasonable and legitimate criticism of any act or conduct of a judge in his judicial capacity or even to make a proper and fair comment on any decision given by him (4) A distinction must be made between a mere libel or defamation of a judge and what amounts to a contempt of the Court. The test in each case would be whether the impugned publication is a mere defamatory attack on the judge or whether it is calculated to interfere with the due course of justice or the proper administration of law by this Court. It is only in the latter case that it will be punishable as Contempt. (5) Alternatively the test will be whether the wrong is done to the judge personally or it is done to the public. Hidayatullah, C. J., in R. C. Cooper v. Union of India MANU/SC/0074/1970 : [1971] 1SCR512 observed : There is no doubt that the Court like any other institution does not enjoy immunity from fair criticism. P.S. Kailasam, J. 53
This is not a fit case to be proceeded with under the Contempt of Courts Act, 1971. The Judgment which he(KRISHNA IYER)himself characterises as obiter dicta may be left alone without any comments. Contempt, proceedings will stand dropped.(All three Judges concurred with this view.)
In the matter of Mr. D, an Advocate of the Supreme Court (In re D) Citation:AIR 1956 SC 102: (1955) 2 SCR 1006 Quorum:Bijan Kumar Mukherjea, CJ, SudhiRanjan Das, J (who delivered the judgment in this case), T.L. VenkataramaAyyar Brief Facts: Mr. D/respondent was an advocate of some standing in the Bombay High Court who was also enrolled in the Supreme Court. He was convicted of an offence under the Bombay Prohibition Act by Magistrate Mr.Sonavane which on appeal was upheld by the Bombay although it altered the quantum of punishment. Shortly after the conviction by Magistrate, the Magistrate Mr.Sonavane made a report to the Bombay High Court Registrar as to the conduct of Mr. D who appeared in person as the accused before him. A tribunal (Bar Council Tribunal) was constituted to enquire into the matter on two counts: 1. report of misconduct 2. judgement of High Court upholding Mr.D’s conviction for offence under the Bombay prohibition Act The proceedings before the Tribunal extended for around 1.5 years towards the end of which period Mr. D sent a letter to the Bar Council tribunal and the High Court requesting the tribunal to send a report to the high court in terms of his pleading guilty to the charges levelled against him. Thereupon the tribunal made a report to the high court holding the allegations to be proved on Mr. D’s own admission and recommended that a very serious notice should be taken of Mr D’s conduct. On the second count tribunal held that mere conviction of the respondent under the Prohibition Act did not amount to professional or other misconduct under Section 10 of the Indian Bar Councils Act. 54
After perusal of the report the High Court heard the respondent for final disposal. Counsel for Mr. D offered an unconditional and unqualified apology on behalf of Mr. D and pleaded that the ends of justice would be met if the Court administered only a warning to Mr. D. But the High Court found the misconduct to be so serious and so grave that it suspended Mr. D from practice for a period of one year. Mr.D’s application for certificate for fitness to appeal was refused. Mr. D’s Special Leave Application before SC was also dismissed. The Supreme Court however had to deal with matter as per Order 4 Rule 30 of the Rules of Supreme Court under which Rule Mr.D was required to show cause why in the matter adjudicated by Bombay High Court appropriate action, disciplinary or otherwise should not be taken by Supreme Court. In answer to the summons under the Rule Mr. D filed a petition, by way of showing cause, stating that the report of the Magistrate was an exaggerated and manifestly incorrect version of the incidents that occurred and that Mr.D was compelled to tender a humiliating apology and requested the Supreme Court to direct that a proper inquiry be held in the matter by the Supreme Court. The main contention of Mr D was that the Tribunal had no jurisdiction to enter upon the inquiry inasmuch as the misconduct complained of was not committed by him in his capacity as an Advocate for he appeared in person as the accused in the Prohibition case. Findings of the Supreme Court: The SC pointed out that as his special leave to appeal was dismissed the SC was not concerned with the proceedings before Bombay HC or the Tribunal. The respondent then asked for fresh inquiry to be conducted. The SC found that Mr. D had admitted the truth of everything contained in Mr.Sonavane’s report and that he was not referring to any particular statement to claim that the tribunal was manifestly incorrect. The court emphasised that a person holding the responsible position of an Advocate of a High Court and of SC cannot be permitted to play with the Court in this way. Mr. D had tendered an unconditional apology evidently in the hope that he would get away with it by merely tendering an apology. As that tactic did not work he is now asking for inquiry which he had himself avoided by means of his admission and apology.
55
The SC went through Mr.Sonavane’s report and agreed with the finding of the High Court. The SC found that the conduct of Mr. D in the criminal trial was indefensible by any standard as it discloses a continuous and persistent attempt by him to be rude and contemptuous of the Magistrate, to hold up the trial and to do everything in his power to bring the administration of justice into contempt. Such a conduct merits severe condemnation. The SC referred to the decision of the Bombay High Court in The Advocate-General of Bombay v. Three Advocates 1934 wherein it was held that the Indian Legislature by using the words “professional or other misconduct” in Section 10 of the Indian Bar Councils Act intended to confer on the Court disciplinary jurisdiction to take action in all cases of misconduct whether in professional or other capacity leaving it to the discretion of Court to take action only in suitable cases. The Court also referred to Calcutta HC’s decision in In the matter of an Advocate 1936 and In re a Pleader 1943 to support this interpretation. The SC thereby found Mr. D guilty of conduct unworthy of any member of legal profession although such conduct was not done in professional capacity. Held: The SC also suspended Mr.D from practice for the time fixed by Bombay High Court. This was in view of the fact that Mr. D being an advocate of the Supreme Court was entitled under the Supreme Court Advocates (Practice in High Courts) Act to exercise his profession in all Courts throughout India.(thus, sole judgment of suspension by Bombay HC would have been of no effect had SC not interfered)Hence any suspension for a period less than that fixed by Bombay HC would lead to serious anomaly and inconvenience.
In the matter of Summons under Order IV Rule 30 of the Supreme Court Rules 1950 (as amended), 1956 SCR 811 [Quorum: B. Jagannadhadas, T.L. Venkatarama Aiyyar, Bhuvneshwar P. Sinha] Facts: The complainant, Attar Singh, engaged Sardar Raghbir Singh, a Senior Advocate of the Supreme Court, who associated with himself with a Junior Advocate, Madan, and the respondent M, a
56
former Agent of the Supreme Court2 who had become an Advocate on Record under the 1954 Supreme Court Rules to file a criminal appeal. This appeal was filed by them under a Vakalatnama executed in favour of M. The complainant entrusted a bank draft of Rs. 750 to M for printing charges in respect of the appeal. This draft was deposited in the Punjab High Court, which had passed the judgment appealed against. A receipt for the amount was issued in M’s name, and the printed record was prepared and dispatched to the Supreme Court shortly thereafter. Subsequently, M applied to the High Court for refund of the unspent balance, and he received a sum of about Rs. 242. When the complainant later found out and demanded a refund, M first denied receipt, and afterwards refused to refund the amount. A complaint was filed against M, which was forwarded by the Supreme Court Chief Justice to a Chamber Judge. An elaborate enquiry was held by the Chamber Judge, and charges were framed by him against M. Subsequently, summons were issued to M to appear before the present Special Bench constituted under Order IV, Rule 30. M challenged the validity of the summons on the ground that summons must precede an enquiry under Order IV, Rule 30.3 The enquiry was also objected to as it was held in Chambers, thus the statements of witnesses were not on oath. The present Special Bench therefore directed the evidence to be taken afresh and that the procedure, substantially as in a warrant case, should be adopted as far as possible under Section 251A of the CrPC. The following 3 charges were framed by the Court (paraphrased): i.
M, having deposited Rs. 750 towards printing charges and received the receipt, applied for and obtained the balance of Rs. 242 without his client’s authority.
2 I believe an Advocate on Record was formerly known as an Agent. In terms of Order IV, Rule 12, of the former 1950 Supreme Court Rules that “no person shall appear as Advocate in any case unless he is instructed by an Agent.” The concept appears to be that of an AoR. 3 Rule 30 only provided, “…the Court shall issue, in the first instance, a summons returnable before the Court or before a Special Bench to be constituted by the Chief Justice to show cause against specified matters.” No specific procedure had been provided for. 57
ii.
After obtaining the said sum, M did not return any part to his client, even when called to do so, even though he is not entitled to recover anything beyond Rs. 72 from his
iii.
client as he had agreed to receive only a sum of Rs. 100 towards his fee. M retained the said sum without intimating his client or claiming any amount as due by way of fees or lodging a bill of taxation for over three years.
Parties’ Contentions: The complainant claimed that having lost his job, he was impecunious, and he had approached the Senior Advocate Raghbir Singh through a relative and requested him to conduct the appeal for a fee of Rs. 600 for himself, a junior advocate and an Agent together. Raghbir Singh agreed, and was paid the amount at the outset. The complainant was not privy to their arrangements regarding the fee, thus M was not entitled to any amount from him. [Raghbir Singh corroborated the complainant’s version and claimed that the sum was shared by them as Rs. 300 for himself, Rs. 200 for Madan, and Rs. 100 for M: the respective amounts had then been paid out. Madan, who had nominated M as the Agent, confirmed their arrangement to pay Rs. 100 only to M.] He alleged that after enquiring about the balance of the High Court Registrar, he had confronted M, who had initially denied receipt and then evaded payment of the money. M claimed he was not aware of the above arrangement, and that only Rs. 50 had been paid to him by the complainant himself, with the promise of a reasonable fee later on. To disprove the arrangement, he also purported to produce a copy of a bill for Rs. 320 allegedly sent to him by Madan, which he passed on to the complainant. [But Madan denied sending the bill and the complainant denied its receipt.] M also claimed that he had been authorized by the relative of the complainant to withdraw the balance amount. He claimed to have informed the complainant of the withdrawal and that his bill of work would come to Rs. 500, and alleged he had a lien over the withdrawn balance. Issues:
Charge 1: Whether, for withdrawing the unspent balance from the Punjab High Court, M had the requisite authority.
58
Charge 2: (i) Whether the Agent M came into this case on a definite arrangement that his entire fee for the case was to be Rs. 100, and (ii) Whether he was in fact paid the said
sum of Rs. 100 by Sardar Raghbir Singh at the outset. Charge 3: (i) Whether M intimated Attar Singh about the withdrawal of the unspent balance of printing charges; (ii) Whether M intimated Attar Singh that any fee remained due and made any demand in that behalf, and (iii) Whether M was justified in retaining the amount towards fees without lodging a bill for taxation against his client.
Overall, whether on the above facts M is guilty of professional misconduct. Held: Concerning the first charge, the Court did not accept that M had been authorized by the relative of the complainant to withdraw the unspent balance, as during the Chamber Judge’s enquiry he had been unable to specifically point out who had authorized him to do so; he only later claimed it was the relative. M had also initially alleged in his affidavit that he withdrew the balance with the permission of the complainant himself, though in cross-examination unsatisfactorily tried to explain that he had meant to refer to the relative. As for the second charge, it was held that the version of Madan, who was a witness to the arrangement, and Raghbir Singh, who was a witness to the payment, did not seem unreliable. However, since neither side’s evidence was decisive, the benefit of doubt was given to M considering that otherwise M would be open to prosecution for criminal misappropriation. The third charge was decided against M. He could not produce properly addressed copies of the alleged letters to the complainant claiming fees due, or satisfactorily explain why he had not applied to the court for taxation against the complainant. As regards professional misconduct, it was held that Rule 30 of Order IV of the Supreme Court Rules virtually made an Advocate a trustee for his client in respect of all his moneys which came into his hands except what was specifically ear-marked for fees. Any lien would not justify the appropriation of such money towards his fees without the express or implied consent of the client or an order of Court. Nor could an Advocate, in absence of a prior settlement of fees, constitute himself a judge in his own cause and determine what would be reasonable fees payable to him. It 59
might be that in certain circumstances he was entitled to exercise a lien, but he had to give reasonable intimation both of the fact of moneys having come into his hands and of the exercise of his lien over them until his account was settled. Surplus money meant for a specific purpose attracts the principle of trusteeship, there being no legal lien over the same. M was therefore suspended from practice for a period of 2 years.
JOHN D’DOUZA v. EDWARD ANI (1994) 2 SCC 64 Judges: Ratnavel Pandian and P.B. Sawant, JJ The case is under s.35 (1) of the Advocates’ Act. Facts: -
The appellant (i.e John D’Souza) is an advocate in Karnataka. Mrs. Mary Raymond and her husband are his clients. The appellant drafted her will, which she entrusted to him after execution. He made an entry into the Register of Wills which supports the fact that
-
the will has been entrusted to him. He also gave a receipt to Mrs. Mary. When Mary Raymond’s husband died, she changed her lawyer from the appellant to Mr. George DaCosta and engaged him as her advocate. George DaCosta asked the appellant to return his client’s will. But the appellant denied having it. So, Mary Raymond made
-
another will that was prepared by George DaCosta. The respondent (Mary Raymond’s son-in-law a.k.a Edward Ani) sent two letters to the appellant- one written on behalf of Mary Raymond and another written by him, asking
-
the appellant about the will. But the appellant did not reply to them. When Mary Raymond died, the second will was probated. The respondent is the legal
-
representative of Mary Raymond. Aggrieved by the appellant’s behavior, the respondent complained to the State Bar Council. Then he appealed to the Bar Council of India which held the appellant for professional misconduct and suspended him from practice for one year.
Issue: Does the appellant’s action of not returning the Will under his custody, after repeated demands for the same, result in breach of trust and amount to professional misconduct? Judgment: 60
-
The Counsel for the appellant (Jethmalani), contended that the respondent son-in law has not substantiated that George DaCosta had requested the appellant for the will which he allegedly denied having. On the other hand, George DaCosta had sent a letter to the State Bar Council Disciplinary Committee stating that he never requested the will nor had the
-
appellant denied having it. The Counsel also contended that the will had been revoked by Mary Raymond when she was alive and this was supported by an endorsement made by the appellant’s wife in the Register of Wills. So even if the will has not been returned, the appellant is not committing breach of trust as a revoked will has no value (res nullius) and has become a mere scrap of paper. He does not hence have any hidden agenda of pecuniary interest in
-
holding the will. It was also admitted that the second letter was received but not the first. The respondent contended that the will which was in the appellant’s custody was held by him in the nature of a trustee and he was obligated to return the will on demand. Further, neither Mary Raymond nor the respondent son-in law had abandoned the will which was their property and cannot be res nullius. The appellant must have deemed to have
-
received the letter. The State Bar Council held that the actions do not amount to professional misconduct as there was strained relationships and delay in complaint. BCI and Supreme Court did not take this into account. George DaCosta’s letter denying the demand made came into being only after proceedings began and hence cannot be taken in as valid evidence against respondent son-in law’s claim. The entry in the Register of Wills has been
-
manipulated. In a disciplinary proceeding, the charging party has the burden of proving the misconduct (the respondent). On overall evaluation of the evidence, the appellant has not returned the will after repeated demands. He initially denied having it and then said he returned it. He was duty bound to return the will. He is responsible for professional misconduct as he has blatantly violated lawyer attorney relationship created under law. BCI order of suspension of one year upheld.
L D Jaisinghani v. Naraindas N Punjabi (1976) 1 SCC 354 61
Before A. N. Ray, C.J and M H Beg, R S Sarkaria and P N Shinghal, JJ. \\ Issue: Professional Misconduct- Benefit of Doubt // Facts: Complaint about an Advocate not filing a suit on behalf of his client after taking monies for the same, but going to the length of committing and perpetuating a gross deception on his client by giving a false and fictitious number of a suit which has not been filed and leading on his client to believe that a suit has been filed. The appellant is an Advocate against whom a complaint was made before the Bar Council of Maharashtra by the Respondent Naraindas M. Punjabi. As the complaint was not disposed of within six months of its receipt by the State Bar Council it was transferred to the Disciplinary committee of the Bar Council of India under Section 36B of the Advocates Act, 1961 for disposal. The Disciplinary Committee had not only found the appellant guilty but had disbarred him permanently. Issue: Whether the Disciplinary Committee had been unduly swayed by the unsavoury background of the appellant so that it could not see its way to giving the appellant even the benefit of doubt ? Held: After going through the relevant evidence, the court doubt whether both sides have come out with full and true facts. It is more likely that there was some dispute over the payment of Rs. 350/- which the Advocate appellant claimed as his fee for work done, but, the complainant seems to have considered himself entitled to demand the payment back. The enquiries were made in an attempt to holster up a weak case and this could be the result of an attempt to give a semblance of truth to a coloured and exaggerated version.
62
It is also true that the appellant had been most unwise in not sending a Registered letter in reply to the registered notice received by him by the complainant. The court cannot help thinking that the Disciplinary Committee had been unduly swayed by the unsavoury background of the appellant so that it could not see its way to giving the appellant even the benefit of doubt in the instant case
Judgment: In the circumstances of this case, the court held that the appellant is entitled to the benefit of doubt. Allowed the appeal and set aside the order disbarring the appellant. Advised -appellant to conduct himself in a more satisfactory manner in his dealings with his clients.
Lalit Mohan Das v. AG, Orissa(6 Page case) Citation: AIR1957SC250, 1957()ALT411(SC), 1957(1)AnWR78, [1957]1SCR167 Judges: SudhiRanjan Das, C.J., N.H. Bhagwati, S.K. Das, B.P. Sinha and T.L. Venkatarama Aiyyar, JJ. Relevant Act & Section: Legal Practitioners Act, 1879 - Section 14 Brief Facts: Appellant, L.M.Das is a pleader in the courts at Anandpur, Orissa. The Munsif, Shri. L.B.N.S.Deo, drew up a proceeding against the appellant on a charge under s. 13 of the Legal Practitioners Act referring to three incidents as mentioned below. 1) On July 15 1953, before the munsif of Anandpur there were 3 cases pending of which the munsif took the oldest suit for hearing and postponed the case in which the appellant was appearing. When informed of this postponement appellant made a remark that, “If the Peshkar is gained over, he can do everything.” Munsif asked the appellant to explain his conduct and appellant denied such a conduct in very improper terms. 63
2) Appellant who was appearing on behalf of a defendant applied for time on the ground of illness of defendant without any medical certificate in support and thus it got rejected. When on a later date the case was called up for hearing the appellant remarked that the court is very unfair to him. 3) A preliminary point of jurisdiction and sufficiency of court fees was raised by the court in a case where the appellant was appearing. This case got decided against the appellant and a civil revision petition to HC subsequently got rejected. When an order was passed dismissing the preliminary objection, the appellant stood up and shouted that he challenges the order and that the court has no principles. As a reply to show cause notice issued to appellant, he denied all charges and took up the stand that the munsif is not competent to hold the enquiry as the munsif was in the position of the complainant. The proceeding against the appellant under the Legal Practitioners Act started, and munsif sent the record to the District Judge in connection with the plea of the appellant that the enquiry should be made by some other judicial officer. The District Judge, however, took the view that the enquiry should be made by the Munsif himself and the records were accordingly sent back. Thereafter, the appellant non-co-operated and did not appear at the enquiry though more than one communication was sent to him. The enquiry was concluded and munsif submitted his report to the HC though District Judge. At the same time appellant filed an application to the Additional District Judge for time to move the High Court to get an order to have the matter heard by some other judicial officer. One month's time was accordingly granted. The Additional District Judge, it appears, made an effort to settle the trouble, and there was some resolutions passed on this behalf. In January, appellant appeared in court and filed a written apology and thus order was passed to the effect that the proceeding against appellant was dropped. However, munsif expressed the view that this resolution passed did not fully carry out the terms of settlement suggested by the Additional District judge. Accordingly, the proceeding was re-opened and the record was resubmitted to the District Judge. The District Judge thereupon sent the report of the Munsif to the High Court accompanied by his opinion that the pleader should be suspended from practice for one year. HC held that the pleader was guilty of grave professional misconduct and suspended him from practice for a period of five years.
64
Appellant then obtained special leave from HC to appeal against the order and judgement of Orissa HC. The case now stands at SC. Issues: a) Whether there was any valid reason for reviving the proceeding against the appellant, after the dropping of proceedings and submission of apology and expression of regret? b) Quantum of punishment to be awarded? Held: a) The order passed by the learned Munsif on January did not have the effect of terminating and bringing to an end the proceeding against the appellant. It was asa result of the wellintentioned efforts taken by the Additional District Judge, but at the same stage Munsif had already made a report to HC and thus HC alone was competent to pass final orders in the matter. Even though it is true that the appellant did express his regret and to that extent the settlement was carried out, it cannot be said to have met with the terms of settlement suggested by the Additional District Judge. Resolutions passed were so worded as to give the impression that the misunderstanding between the Munsif and the appellant was all due to the bench clerk and that there was nothing in the resolution to show that the appellant was in any way at fault. Thus it is concluded that the appellant is guilty of grave professional misconduct. b) Munsif himself had recommended a one year suspension from practice which was increased to five years by HC. Also appellant did file an apology and expressed his regret. Considering these two circumstances as mitigating ones, punishment is reduced to two years of suspension. Ethics points discussed: ‘A member of the Bar undoubtedly owes a duty to his client and must place before the Court all that can fairly and reasonably be submitted on behalf of his client. He may even submit that a particular order is not correct and may ask for a review of that order. At the same time, a member of the Bar is an officer of the Court and owes a duty to the Court in which he is appearing. He
65
must uphold the dignity and decorum of the Court and must not do anything to bring the Court itself into disrepute. ‘ ‘The appellant before us grossly overstepped the limits of propriety when he made imputations of partiality and unfairness against the Munsif in open Court. In suggesting that the Munsif followed no principle in his orders, the appellant was adding insult to injury, because the Munsif had merely upheld an order of his predecessor on the preliminary point of jurisdiction and Court fees, which order had been upheld by the High Court in revision. Scandalising the Court in such manner is really polluting the very fount of justice; such conduct as the appellant indulged in was not a matter between an individual member of the Bar and a member of the judicial service: it brought into disrepute the whole administration of justice.’
Mahabir Prasad Singh vs.Jacks Aviation Pvt. Ltd In the case of Mahabir Prasad Singh vs. Jacks Aviation Pvt.Ltd , an application was made to the trial Court to suomoto transfer the case to some other Court as the Bar Association had passed a resolution to boycott that Court. Thus the lawyers could not appear before that Court. The trial Court rightly rejected the application. In a revision petition the High Court stayed the proceedings before the trial Court. It was later held that the High Court had committed grave error in entertaining the revision petition and passing an Order of stay. Every court is to bound to proceed with the judicial business during court hours, and the court is not obliged to adjourn a case because of strike. The court cannot shirk its obligation to hear cases on the ground that the advocates are on strike. A strike infringes the litigant’s fundamental right for speedy trial and the court cannot remain silent on such violation of the fundamental right. No lawyer has right to obstruct or prevent another lawyer from discharging his professional duty of appearing in court. If anyone does, then it is a criminal offence and commits contempt of court and he is liable to be proceeded against on all these courts.
The Bar Council of Maharashtra v M.V. Dabholkar & Ors (AIR 1976 SC 242) A.C. Gupta, R.S. Sarkaria, S. Murtaza Fazal Ali and V.R. Krishna Iyer, JJ. 66
\\ Issue: Professional Misconduct- Brief Snatching from Clients // Facts: Advocates in criminal courts of Bombay used to lie in wait and accost potential litigants. Bar Council of Maharashtra heard complaints against 16 advocates and referred same to disciplinary committee. Common judgment was passed by the committee that this amounted to conduct that lowers the reputation of the Bar and the advocates were suspended for 3 years. Appeal to National Disciplinary Committee reversed the order. Maharashtra Bar appealed to SC. Issue: Whether the act of snatching briefs amounted to misconduct under Rule 36 of the BCI Rules? Held: Rule 36 of BCI Rules states that an advocate shall not solicit work. To attract the section, 3 conditions are to be proved
Soliciting work, From a particular person and With respect to a case.
In the present case, insufficient evidence led to no action under Rule 36. Witnesses were not sure if they actually saw brief snatching. The court indicated that misconduct is “not restricted to technical interpretations of Rules of conduct” and went on to show that brief snatching amounted to misconduct in a broad sense of the term though it did not fall within Rule 36. It has been universally understood that wherever there is an organized bar assisting in administering justice, that an attorney, solicitor, barrister or advocate will be suspended or disbarred for soliciting legal business (Similar provision in Canon 27 of ABA Rules). The 'snatching' species of solicitation are more revolting than 'ambulance chasing', advertising and the like. The high moral tone and the considerable public service the bar is associated with has earned for it a monopoly to practice law and an autonomy to regulate own procedure. This heavy public
67
trust should not be forfeited by legalizing or licensing fights. Rule 36 is not the only nidus of professional ethics.4 The appellate disciplinary tribunal was wholly wrong in applying Rule 36 which was promulgated only in 1965 while the alleged misconduct took place earlier. Professional ethics were born with the organized bar, even as moral norms arose with civilized society. Snatching briefs by standing at the door of the court house and in-fighting for this purpose is too dishonorable, disgraceful and unbecoming to be approved even for other professions. The canons of ethics and propriety for the legal profession totally taboo conduct by way of soliciting, advertising, scrambling and other obnoxious practices, subtle or clumsy, for betterment of legal business. The Court also observed that the State tribunal erred in procedure. The consolidation of 16 cases and trying them all jointly although the charges were different episodes, were obviously violative of fair trial. The Court expressed hope that disciplinary proceedings would get more attention from the Bar Council. Judgment: Appeal heard on a case by case basis. Based on evidence and admissions of guilt, exonerated some advocates and reduced the punishment for the rest. The Court gave the judgment, hoping that that standards and sanctions befitting the national Bar will be maintained in such dignified and deterrent a manner that public confidence in this arm of the justice-system is neither shaken nor shocked.
Mrs. Roma Banerjee vsUshapati Banerjee, Muktear, on 29 January, 1954
2 judge bench Mukhtear Ushapati Banerjee, an advocate was hired by Roma Banerjee for prosecution against two people for cheating. The case ended in conviction of the accused, at which
4 Nidus = A place or environment that favors the development of a thing 68
point they preferred an appeal to the Sessions judge. At this point the advocate informed his client that a senior advocate would have to be appointed and induced her to pay Rs 75
as the fee for the same. When the client didn’t hear anything for a long time, she made enquires and found out that the advocate had compromised the criminal appeal for a sum of Rs 1500. This sum had been paid to the advocate over the course of three dates and on the last of these dates,
the appeal was dismissed on account of the compromise. The compromise amount had not been handed over to the client and hence the client caused a pleaders notice to be served to the advocate. However the advocate still provided no restitution or explanation. The client then moved to the district judge for
appropriate action who forwarded this application to the additional sessions judge. The respondent was then furnished with a copy of the application under the Legal Practitioners Act and was asked to show cause why he should not be dealt with under that Act. By a petition, the respondent showed cause in which it was, inter alia, stated that the allegation as to the payment of Rs. 75/- as fee for engaging a senior lawyer was a myth, that the allegation of compounding the case without the knowledge of the petitioner and of misappropriating the amount of Rs. 1,500/- paid by the accused was totally false, and that the case sought to be made out against the respondent would be negatived by overwhelming evidence not only of very respectable witnesses but also of a documentary nature. On the respondent's application for time, the hearing of the petition under the Legal Practitioners Act was fixed for May 23, 1953. The respondent, however, chose not to appear on that occasion. Mrs. Banerjee, the complainant, and three persons, including Mr. Ramesh Chandra Rai, pleader, who had appeared for the accused persons in the said criminal appeal, were examined. Certain records or documents were proved and tendered as evidence. On three subsequent dates, namely, May 30, 1953, June 6, 1953, and June 13, 1953, the respondent asked for time to effect a compromise with Mrs. Banerjee as to the charge of misconduct. The Judge allowed time on two occasions, but disallowed the respondent's petition of 13th of June, The matter was finally fixed for 15th June for arguments. On 18th June, the reference was made to this Court recommending that the respondent be suitably punished under Section 13 of the Legal Practitioners Act.
69
The charge of misconduct was on three counts : (a) The respondent induced his client to pay Rs. 75/- to engage a senior lawyer. No such lawyer Was engaged and the money was retained by the respondent (b) The criminal appeal was compromised without the knowledge, and consequently without the consent, of the respondent's client and (c) The sum of Rs. 1,500/- being the consideration for the compromise, was retained by the respondent.
The respondent claimed that he had offered the compromise amount to the client who in
turn had refused to accept it with a view to blackmail the respondent. It was proven that in the initial case, the lawyer of the accused had asked the respondent lawyer to bring his client along for the compromise, but the respondent lawyer had failed
to do so. It was pointed out that after asking for time twice, the advocate had failed to appear in court and so the petition for more time was disallowed the third time and hence it could
not be said that the advocate did not get a fair chance to be heard and examined. The next point urged on behalf of the respondent was that the reference was incompetent because it had not been made through the District Judge, as required under Section 14 of the Legal Practitioners Act. Although this is a very technical point, we have given this matter our serious consideration and have come to the conclusion that the contention put forward by Mr. Basu is without substance. Mr. Basu's point is that the last paragraph of Section 14 requires that every report made to the High Court should be through one of the appropriate functionaries mentioned in Clauses (a) to (d) and that each such report shall be accompanied by the opinion of each Judge, Magistrate or Revenue authority as the case may be, through whom or which it is required to be made. In this case, according to Mr. Basu, the reference concerned was not made through the District Judge and consequently it was not accompanied by his opinion. Mr. Das, learned Government Pleader, appearing on behalf of the State, argued that as the Additional Sessions Judge had, except in administrative matters, concurrent jurisdiction with the Sessions Judge, the reference concerned must be deemed to be a reference by the Sessions Judge. This, according to Mr. Das, is clear by reason of the provisions of Section 8 (2) of Bengal, Agra and Assam Civil Courts Act, 1887. In our view, the requirement that every report made to the High Court under the section shall be made through one or other of the functionaries 70
mentioned in Clauses (a) to (d) applies in those cases only which are specified in those clauses. In our view, there is ample power under the first part of the section for an Additional Sessions Judge, to whom a matter under the Legal Practitioners Act has been transferred for disposal, to make a report direct to the High Court without any further
intervention on the part of either the District Judge or the Sessions Judge. The last point raised was that the case of misconduct should have been decided in a criminal court and this was refused on the grounds that not every misconduct would fall
under the mischief of the penal code. HELD- Advocate suspended for 6 months.
N.B Mirzan vs. The Disciplinary Council of Bar Council of Maharashtra & Ors Citation: AIR 1972 SC 46, Bench: S Sikri, D Palekar, A Ray Relevant provisions: Advocates Act, S. 35 (Professional misconduct), S. 39 (Appeal to SC). Facts: The appellant, N.B Mirzan (‘Advocate”) was an Advocate on the rolls of Bar Council of Maharashtra. Respondent No. 2 (“Respondent”) – was a previous client of the appellant in the case of an obstructionist notice served to him. The Advocate collected money from Respondent on various occasions – Rs. 190 for court fee stamps, then Rs. 975 on representation that the amount was required for deposit by way of rent and then again Rs. 250 on representation that the amount was necessary for payment to a judge for getting the rent bill transferred in the name of Respondent. The obstructionist notice was discharged in favour of the Respondent. Thereafter the landlord filed another suit against Respondent and his brother for ejectment and mesne profits. He gave a written statement admitting that no rent had been paid by Respondent. The Court directed to deposit such sum. Since some money was already deposited to the Advocate, the Respondent was under the impression that the Advocate will make the payment. He was surprised when the Advocate made a demand for the rent again. This started the current state of events. The Respondent understood that the appellant misappropriated the money and made a compliant in the State Bar Council against the Advocate. Later, there was an attempt for a settlement between them with a condition that the Advocate will pay the Respondent Rs. 1000 in instalments of Rs 150 every month. The Advocate did pay the first instalment but later denied the existence of any such settlement when the Disciplinary Proceedings started. 71
Issue: The respondent made several allegations of professional misconduct. The State Bar Council Disciplinary Committee, after detailed inquiry came in to conclusion that professional misconduct had been established on three counts including moral turpitude. The committee directed the appellant should be suspended permanently and should not be allowed to appear in any court in the country. An appeal was filed on this order to the Bar Council of India. The appeal was heard by the Disciplinary committee of BCI. The BCI Disciplinary Committee confirmed the findings of the State DC, but reduced the punishment for a period of 5 years suspension and to pay the Respondent, a sum of Rs. 850 in 2 months. Further, if the amount was not paid, the punishment of the State DC will stand. An appeal to the SC was made. Held: SC approved the findings of both the Disciplinary Committees. The findings of the Bar Council of India Disciplinary Committee upheld.
New India Assurance Co. Ltd vs. A.K. Saxena Bench: S.N. VARIAVA & DR. AR. LAKSHMANAN Facts Respondent was an advocate on panel of the appellants. As such a number of matters used to be assigned to him It appears that some dispute arose between the appellants and the respondent as a result of which the respondent was asked to return all papers. The respondent was willing to return the papers provided that all his fees were paid. When appeal was on the Board of the High Court, the respondent moved an application before the High Court saying that he has been asked to return the files and therefore he may be discharged on payment of his full fees. Held
72
The application of Sri A.K. Saxena is allowed and he is granted leave for being discharged as counsel for the appellant. However, the appellant New India Assurance Co. Ltd. shall pay his full fees. On payment of full fees, he will immediately return the files as required by the appellant company. It has been held that the right of the litigant to have the files returned to him is a corresponding counterpart of the professional duty of the advocate and that dispute regarding fees would be a lis to be decided in an appropriate proceeding in Court.
P. D. GUPTA v. RAM MURTY TOPIC: PROFESSIONAL MISCONDUCT CASE CITATION: (1997) 7 SCC 147 JUDGES: S.C. AGRAWAL AND D.P. WADHWA No. of pages: 5 The appellant is an advocate practicing in Delhi. He has filed this appeal before the Supreme Court of India, under section 38 of the Advocates Act, 1961 against the order of the Disciplinary Committee of the Bar Council of India holding him guilty of misconduct and suspending him from practice for a period of one year. This order by the Bar Council of India was passed as the Disciplinary Committee of the Bar Council of Delhi could not dispose of the complaint received by it within a period of one year and proceedings has thus been transferred to the Bar Council of India under Section 36-B of the Act. (Section 36-B enjoins upon the Disciplinary Committee of the State Bar Council to dispose of the complaint received by it under Section 35 of the Act expeditiously and in any case to conclude the proceedings within one year from the date of the receipt of a complaint or the date of initiation of the proceedings if at the instance of the State Bar Council.) So the case goes like this, One Srikishan Das died leaving behind extensive immovable properties. Claims to the said properties were made by one Vidyawati claiming to be the sister of the deceased, Mr. Ram Murti and two others who claimed themselves to be the heir of the
73
deceased. Later, the said properties were purchased by the advocate of Vidyawati knowing them to be disputed. The advocate thereafter sold the property to a third party and made profit. The Bar council of India was of the view that the conduct of P.D. Gupta in the circumstances was unbecoming of professional ethics and conduct. It observed that the lawyer conducting the case of his client has a commanding status and can exert influence on his client. “No doubt there is no bar for a lawyer to purchase property but on account of common prudence specially a law knowing person will never prefer to purchase the property, the title of which is under doubt.” For the purpose of the present complaint, having regard to all the facts and circumstances of the case, the Committee was of the opinion that the conduct of the respondent is patently unbecoming of a lawyer and against professional ethics. Therefore the Committee said that Mr. Gupta should be suspended from practice for a period on one year so that the other erring lawyers should learn a lesson and refrain themselves from indulging in such practice. The question which arises for consideration: In view of the aforementioned facts is P.D. Gupta guilty of professional or other misconduct and if so is the punishment awarded to him disproportionate to the professional or other misconduct of which he has been found guilty? Supreme Court upheld the Disciplinary committee’s (BCI) decision. Supreme Court’s observation The appellant- advocate’s contention that he was no longer concerned with the property as he had sol away the same and therefore he was not guilty of any misconduct, cannot be sustained since that is not the issue here. Court is concerned with the professional conduct of the appellant as a lawyer conducting the case of his client. Here the appellant in buying the property has in effect subverted the process of justice. His action has raised serious questions about his fairness in the conduct of the trial touching his professional conduct as an advocate. By his action he has brought the process of administration of justice into disrepute. In the present case the Bar Council of India, through its Disciplinary Committee, has considered all the relevant circumstances and has come to the conclusion that the appellant was guilty of misconduct and there is no reason to take a different view. There is no ground to interfere with
74
the punishment of debarring him from practicing for a period of one year awarded to the appellant in the circumstances of the case.
Perspective Publications (P) Ltd. and Anr.v.State of Maharashtra Citation: AIR1970SC221 Quorum: J.C. Shah, V. Ramaswami and A.N. Grover, JJ. Pages: 10 Decision: Appeal Dismissed. Decision of High Court was upheld. Facts: The appellants in this case had published an article in a weekly periodical called “Mainstream” titled “STORY OF A LOAN and Blitz Thackersey Libel Case” which was about the decision of the Libel Suit filed against the weekly newspaper “Blitz” and it’s Editor, by one Krishnaraj Thackersey. The suit was decided by Justice Tarkunde in favour of Thackersey and the sum of Rs. 3 Lacks was decreed. The impugned article, in this case, was a skilful attempt on the part of the writer to impute dishonesty and lack of integrity to Justice Tarkunde in the matter of Blitz-Thackersey suit. The writer says that the Khare-Tarkunde Private Limited of Nagpur, the partners of which included the father and two brothers of Justice Tarkunde, had received a loan of Rs. 10 Lacks from the Bank of India.It was pointed out, in the article, that the date on which Rs. 10 lacks loan facility was granted by the Bank of India was about five and a half months after the Thackersey-Blitz libel suit had begun and just over six weeks before Justice Tarkunde began delivering his "marathon judgment" on January 19, 1965. It was then said that for Rs. 10 lacks loan facility granted to Khare-Tarkunde, the New India Assurance Co. stood guarantee and that the two Directors of the Bank of India who voted in favour of the credit of Rs. 10 lacks being granted to Khare-Tarkunde were Thackersey and JaisinhVithaldas (believed to be a relative of Thackersey). Next the writer had stated that one of 75
the Directors of the New India Assurance that stood guarantee for the loan was N. K. Petigara, who was the Solicitor of Thackersey in the Blitz Thackersey Libel Case before Justice Tarkunde.The writer laid emphasis on the fact that Khare-Tarkunde had a capital of Rs. 5 lacks only and the balance sheet of the firm of June 1964 revealed indebtedness to various financiers to the tune of Rs. 14 lacks. Thus Khare-Tarkunde is stated to be "lucky to get against all this a handsome loan of Rs. 10 lacks from the Bank of India" A petition was filed before the Bombay High Court by the State of Maharashtra pointing out that the aforesaid article contained scandalous allegations and was calculated to obstruct the administration of justice and constituted gross contempt of court. The article purported to state certain facts relating to the transaction between Khare-Tarkunde and the Bank which were false and there were several misstatements and suppression of facts. ISSUE: Whether the appellant editor had committed contempt of court through misstatements and inaccurate scandalous allegations, calculated to obstruct administration of justice and wrongly implicate the Judge. The article, though cleverly worded, contains obvious implications and insinuations which create a strong prejudicial impact on the mind of the reader about the lack of integrity, honesty and impartiality on the part of Justice Tarkunde in deciding the suit. This case is an appeal from the judgement of the Bombay High Court in which the appellants(Appellant 1and 2 being Perspective Publications (P) Ltd and D.R. Goel, the Editor, Printer and Publisher of Perspective Publications, respectively) were held to be guilty of contempt of Mr. Justice Tarkunde in his judicial capacity. The High Court analyzed the implications of the facts stated in each paragraph of the impugned article in great detail and observed that reading the article as a whole, not reading into it anything more than its plain language, it is impossible to avoid the conclusions that this article exceeds the bounds of fair and reasonable criticism. In so far as it suggests that there is sort of casual connection between the granting of the loan to M/s. Khare Thackersey Pvt. Ltd and the judgment of Mr. Justice Tarkunde in the ‘Blitz-Thackersey’ case, it clearly attempts to lower the learned judge in his judicial capacity, shake the confidence of the public in the High Court and impair the due administration of justice in the court.
76
The Hon’ble Apex Court restated the result of the discussions of many cases which were referred to before the court on the head of contempt: (1) It will not be right to say that committals for contempt for scandalizing the court have become obsolete. (2) The summary jurisdiction by way of contempt must be exercised with great care and caution and only when its exercise is necessary for the proper administration of law and justice. (3) It is open to anyone to express fair, reasonable and legitimate criticism of any act or conduct of a judge in his judicial capacity or even to make a proper and fair comment on any decision given by him because "justice is not a cloistered virtue and she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men". (4) A distinction must be made between a mere libel or defamation of a judge and what amounts to a contempt of the court. The court observed that no attempt was made to substantiate the facts stated in the article to be true or founded on correct data. The contention of bias or existence of some sort of pecuniary interest in Khare-Tarkunde was held to be baseless as there was nothing to show that Justice Tarkunde was neither a shareholder nor did he have any interest in Khare-Tarkunde. The fact that his brother had some holding in it per se does not establish that Justice Tarkunde would also have some pecuniary interest therein. The appellant showed no contrition in the matter of publication of the impugned article. He never even tendered an unqualified apology. HELD: The Supreme Court ,held that, as in the impugned article there was a clear imputation of impropriety, lack of integrity and oblique motives to Justice Tarkunde in the matter of deciding the Thackersey-Blitz suit which, on the principles already stated, undoubtedly constituted contempt of court, the decision of the High Court, was fully justified in punishing him for contempt of court and in awarding the sentence of simple imprisonment for one month together with fine amounting to Rs. 1,000/-, in default of payment of fine he was to undergo further simple imprisonment for the same period.
77
Pralhad Saran Gupta v. Bar Council of India Citation: (1997) 3 SCC 585 Quorum: S.C. Agrawal and G.B. Pattanaik, JJ Relevant Law: Advocates Act, 1961 - Section 36B, Section 38; Code of Civil Procedure Section 80, Order 21 Rule 72 Pages: 09 Facts: Prahlad Saran Gupta (‘Appellant’) was a practising Advocate in Ghaziabad and was enrolled with the Bar Council of UP. He was appearing for the decree holder, M/s. Atma Ram Nanak Chand, in an Execution Case. The U.P. State Bar Council received a complaint from one, Rajendra Prasad (‘complainant’), a partner at M/s. Atma Ram. The allegations made were as follows: 1. The Appellant colluded with the judgment debtor and had realised Rs. 1,600 from him out of which Rs. 1,500 was withheld by the Appellant for a period of eight months inspite of repeated requests by the decree holder. The balance amount was taken by him as fee to get time from the High Court for procuring stay order in the execution proceedings. 2. The Appellant received Rs. 245 from the judgment debtor for getting some other counsel engaged to get the execution proceedings stayed and to see that the auction of judgment debtor's property was not approved by the court. 3. The Appellant had collected from the judgment debtor a further sum of Rs. 450 on account of fees and expenses for getting some counsel engaged at Allahabad to get the execution proceeding stayed and for the purpose. However, he had not referred the case to the advocate he had claimed to refer the case to. 4. The Appellant, as counsel for the complainant's firm, had filed the suit in the Court of Munsif (Judge, Small Causes Court, Ghaziabad) with utter carelessness thus their new
78
counsel had to take back the plaint and file it in the proper court, namely, the Court of Civil Judge, (Judge, Small Causes Court), Ghaziabad. 5. The Appellant was indulging in money lending business at very high rate of interest and thus misconducting himself as an advocate and had advanced loan to one Sunderlal of Ghaziabad. The State Bar Council on receiving the complaint referred the same to the Displinary Committee. The Committee did not complete the proceedings in the prescribed time (i.e. 1 year) and the matter was transferred to the Bar Council of India u/s. 36-B of the Advocates Act’1961. The Disciplinary Committee of Bar Council of India holding the Appellant guilty of serious professional misconduct, imposing punishment of suspension from practice for one year. The Appellant thus filed an appeal before the Supreme Court under section 38 of the Advocates Act. Decision: The action of the appellant in not returning the money i.e.Rs.1,500 either to the decree-holder or to the judgment debtor, and retaining of the amount with himself till it was deposited in the court, was not in consonance with moral standard of a senior member of the legal profession. The court held that the appellant had rightly been held guilty of professional misconduct for having retained Rs. 1,500 with him in connection with the execution proceedings. The court stated that the ends of justice would be met if the punishment for reprimand is imposed on the appellant for misconduct on his part.
Pravin C. Shah v. K.A.Mohd.Ali and Another, (2001) 8 SCC 650 (14 pages)
79
Coram : 2 judges – K.T. Thomas and S.N. Variava Facts: The Respondent in this case (An advocate) was practising mostly in the courts situated in Ernakulum district. He was hauled up for contempt of court on 2 successive occasions. The High court of Kerala however found him guilty of criminal contempt in both cases and convicted him under s. 12 of the contempt of courts Act, 1971 and sentenced him in with fine- Rs. 10,000 (1 st occasion) & Rs. 2000 (2nd Occasion). At this juncture he went on for an appeal to the Supreme Court challenging the conviction and sentence imposed upon him by the High Court, but he did not succeed in the Supreme Court except getting the fine of Rs. 2000 in one case deleted and the apology tendered by him in the court was not accepted by the court. But however this did not create any ripple in him and as a result, he continued to appear and conduct cases in the courts. At this point the Appellants in this case (Lalan Road Residents Association, Kochi) brought a notice to the Bar Council of Kerala that this Advocate was continuing practise and conducted cases in courts in cochin in spite of his conviction and sentence. The Bar council of Kerala thereupon initiated disciplinary proceedings against the respondent and finally imposed a punishment on him debarring him from “Acting or pleading in any court till he gets himself purged of the contempt of court by an order of the appropriate court.” The interdict was passed by the council by taking into account Rule 11 of the “Rules Framed by the High Court of Kerala under s. 34 (1) of the Advocates Act 1961 regarding conditions of practise of Advocates” Rule 11 : “No advocate who has been found guilty of contempt of court shall be permitted to appear, act or plead in any court unless he has purged himself of contempt.” Challenging this order of the State bar council, the respondent filed an appeal before the BCI and the BCI set aside the interdict imposed upon him. Against this order is the present appeal before the Supreme Court by the same person at whose instance the State bar council initiated action against the respondent Advocate. Other Important matters discussed:
80
Interpretation of Rule 11: Rule 11 is a self operating rule for which only one stipulation needs to be satisfied i.e. the advocate concerned should have been found guilty of contempt of court. And it will come to an end once the Advocate purges himself of the contempt. Rule 11 of the Rules is not a provision intended for the disciplinary committee of the Bar Council of the state or the Bar council of India. It is a matter entirely concerning the dignity and the orderly functioning of the courts. The Rights of the advocate to practise envelops a lot of acts to be performed by him in discharge of his professional duties. Rule 11 has nothing to do with all the acts done by the advocate during his practise except his performance inside the court. The right to appear and conduct cases in the court is a matter on which the court has major supervisory power. In the case of Prayag Das v. Civil Judge, Bulandshahr AIR 1974 All 133, it was said that: “ the High Courts have the power to regulate the appearance of advocates in courts.” Rule 11 of the Rules is a self-operating provision. When the advocate is found guilty of contempt of court, his authority to act or plead in any court stand snapped and if he does such things without the express permission of the court he would again be guilty of contempt of court. It will continue to be so, until he purges himself of the contempt. How to Purge? To purge means to get oneself cleared of the guilt. According to Disciplinary committee of BCI, it can be done by apologising to the court. (Criminal cases) and in civil cases by subsequent compliance with the orders or directions the contempt can be purged of. In the case of Madan Gopal Gupta v. Agra University, it was held that “Purging process would be complete only when the contemplator undergoes the penalty.”
81
A mere statement made by the contemnor before the court that he apologises is hardly enough to amount to purging himself of teh contempt. The court should also be satisfied of teh genuiness of the apology. If the court is satisfied, it has to pass an order stating that it is satisfied and hence the contemnor has purged himself of the contempt. Till such an order is passed by the court, the advocate shall be under the spell of the interdict under Rule 11 of the rules. Decision: The respondent still have the option to purge himself in the ways mentioned above to the court. But until then the advocate cannot plead or act in any court situated within the domain of the Kerala High Court. And it shall be the duty of the Registrar of the High Courts to inform all other courts coming within its purview against any such advocate who has been convicted by the courts. And appeal is disposed.
R.D. Saxena v. Balram Prasad Sharma 5- Justice
K.T. Thomas
and Justice R.P. Sethi Facts: The appellant, a septuagenarian was enrolled as an advocate with the State Bar Council of Madhya Pradesh. He was appointed as legal advisor to the Madhya Pradesh State Co-operative Bank Ltd. ('Bank', for short) in 1990 and the Bank continued to retain him in that capacity during the succeeding years. He was also engaged by the said Bank to conduct cases in which the Bank was a party. On 17.7.1993 the Bank terminated the retainership of the Appellant and requested him to return all the case files relating to the Bank. Instead of returning the files the Appellant forwarded a consolidated bill to the Bank showing an amount of Rs. 97,100/- as the balance payable by the Bank towards the legal remuneration to which he is entitled. He informed the Bank that the files would be returned only after settling his dues. Respondent Bank disclaimed any liability outstanding from them to the Appellant. The dispute remained unresolved and the case bundles never passed from Appellant's hands. As the cases were pending the Bank was anxious to have the files for continuing the proceedings before the Courts/Tribunals concerned. At the same time the Bank was not disposed to capitulate to the 52000 (41) ALR 1 82
terms dictated by the Appellant which they regarded as grossly unreasonable. A complaint was hence filed by the Managing Director of the Bank, before the State Bar Council (Madhya Pradesh) on 3.2.1994. It was alleged in the complaint that Appellant is guilty of professional misconduct by not returning the files to his client. It was alleged in the complaint that appellant is guilty of professional misconduct by not returning the files to his client.In the reply which the appellant submitted before the Bar Council he admitted that the files were not returned but claimed that he has a right to retain such files by exercising his right of lien and offered to return the files as soon as payment is made to him. The complaint was then forwarded to the Disciplinary Committee of the District Bar Council. The State Bar Council failed to dispose of the complaint even after the expiry of one year. So underSection 36-B of the Advocates Act the proceedings stood transferred to the Bar Council of India. After holding inquiry the Disciplinary Committee of the Bar Council of India reached the conclusion that appellant is guilty of professional misconduct. Issue: The issue is this: Does the advocate have a lien for his fees on the litigation papers entrusted to him by his client? In this case the Bar Council of India, without deciding the above crucial issue, has chosen to impose punishment on a delinquent advocate debarring him from practicing for a period of 18 months and a fine of Rs. 1000/-. The advocate concerned was further directed to return all the case bundles which he got from his client - Respondent - without any delay. This appeal is filed by the said advocate under Section 38 of the Advocates Act, 1961. Judgement: Justice Thomas in his judgment noted the position before independence, when there was a divergence of opinion on this position. However, with the enactment of the Advocates Act and the formation of the new Bar Council of India, rules were made to cover such situations. It contains provisions specifically prohibiting an advocate from adjusting the fees payable to him by a client against his own personal liability to the client. As a rule an Advocate shall not do anything whereby he abuses or takes advantage of the confidence reposed in him by his client (vide Rule 24) Rules 28 and 29 of the BCI Rules can be referred to in this context, which provides for a right of an advocate to deduct the fees out of any money of the client remaining in his hand at the termination of the proceeding for which the advocate was engaged. It is important to notice that 83
no lien is provided on the litigation files kept with him. In the conditions prevailing in India with lots of illiterate people among the litigant public it may not be advisable also to permit the Counsel to retain the case bundle for the fees claimed by him. Any such lien if permitted would become susceptible to great abuses and exploitation. The court dismissed the claim made by the appellant that the case files fall under ‘goods’ as contemplated under S.171 of the Contract Act. Goods to fall within the purview of Section 171 of the Contract Act should have marketability and the person to whom it is bailed should be in a position to dispose it of in consideration of money. In other words the goods referred to in Section 171 of the Contract Act are saleable goods. There is no scope for converting the case files into money, nor can they be sold to any third party. Hence, the reliance placed on Section 171 of the Contract Act has no merit. The court held that ‘misconduct’ as envisaged in Section 35 of the Advocates Act is not defined. The section uses the expression "misconduct, professional or otherwise". The word "misconduct" is a relative term. It has to be considered with reference to the subject matter and the context wherein such term occurs. It literally means wrong conduct or improper conduct. Citing Darling J’s exposition in In Re Solicitor Ex-Parte a Law Society the apex court felt it was also inclined to take the same wide canvass for understanding the import of the expression "misconduct" in the context in which it is referred to in Section 35 of the Advocates Act. Therefore, the refusal to return the files to the client when he demanded the same amounted to misconduct under Section 35 of the Act. Nobody would dispute the proposition that the cause in a court/tribunal is far more important for all concerned than the right of the legal practitioner for his remuneration in respect of the services rendered for espousing the cause on behalf of the litigant. If a need arises for the litigant to change his counsel pendentelite, that which is more important should have its even course flowed unimpeded. Retention of records for the unpaid remuneration of the advocate would impede such course and the cause pending judicial disposal would be badly impaired. Even if there is no lien on the litigation papers of his client an advocate is not without remedies to realise the fee which he is legitimately entitled, like suing the client for what is legitimately due to him.
84
The court converted the punishment pronounced by the BCI into a reprimand since the appellant would have bona fide believed, in the light of decisions of certain High Courts, that he did have a lien.
RajendraNagrath v. Col VNVohra and Ors AIR 2009 MP 131 Key question: Whether an Advocate can continue as a counsel in spite of having been cited as a witness Facts of the case: AS Usmani an advocate was engaged by the petitioner as counsel in a property dispute before XIIIth Addl District Judge Jabalpur. The declarations sought by the plaintiff were based on a will which was executed by Smt Vidyavathi Nagrath in favour of the petitioner. The will in question was reduced into writing by Shri AS Usmani and he was cited as a witness by the plaintiffs. The defendants in the suit filed objections seeking an order to direct Shri A S Usmani to not appear as a counsel as he was also stated as a witness and had knowledge about material facts related to the case. The trial court ordered in favour of the defendants. Aggrieved by this order, the Petitioners filed a writ petition before the Madhya Pradesh High Court Held: The High Court observed that the will in question was a material fact. Since the will was reduced into writing by AS Usmani, he may be aware of several facts. Consequently he may be aware of several facts and thus he should not continue as a counsel in the case. The High Court observed that higher standards of professional ethics are expected of a lawyer and what may be proper for others may not be proper for a lawyer. In the light of Rule 13 of Chapter II, Part VI of Bar Council of India Rules, an advocate cannot identify himself with the client and it was not proper for Mr AS Usmani to continue with the case.
85
The High Court also relied on Motilal v. Anandibai in which the Supreme Court held that it is not proper for a lawyer to appear for a party knowing that it is not proper for a lawyer to appear for a party in Court knowing that he was likely to be called as a witness in support of a will bearing his attestation A.S Usmani was directed to voluntarily retire from the case failing which the Trial Court was directed not to permit him to continue as a counsel Relevant legal provision Part VI Chapter II , Rule 13 : Duties to client An advocate should not accept a brief or appear in a case in which he has reason to believe that he will be a witness, and if being engaged in a case, it becomes apparent that he is a witness on a material question of fact, he should not continue to appear as an Advocate if he can retire without jeopardising his client’s interests.
RAJENDRA V. PAI V. ALEX FERNANDES AND OTHERS Bench : R.C.Lahoti and Venkataram Reddi ; JJ. FACTS: Appellant was an advocate of Bar Council of Maharashtra and Goa. Large scale acquisition of lands – lands of 150 villagers involved. The appellant being an advocate and also personally interested in defending the land belonging to relatives, played an important role in the land acquisition proceeding and also obtaining a feasible quantum of compensation. 3 claimants filed complaints against the appellant on the grounds that:
appellant solicited work from villagers he settled contingent fee on the basis of compensation awarded to claimant he identified certified certain claimants in opening bank account where cheque for awarded compensation was lodged and amount withdrawn – ( This identification was later found to be false) 86
Matter inquired by disciplinary Committee of State Bar Council Contentions of the appellant:
He did not solicit work. Villagers confided in him as he was an advocate and also he was
looking after litigation of the family property. Villagers voluntarily agreed to contribute to collective fund raised for covering the
expenses of litigation. With regard to false identification of bank account – he acted irresponsibly as he relied on
villagers who persuaded him to make such identification If he is debarred – appellant and his family will be ruined.
SUPREME COURT HELD: Debarring a person is an extreme punishment. High standards of ethics and morality to be maintained and thus situations of misconduct to be dealt with severely. However, in the present case, advocate seems not to have defaulted or committed misconduct. Thus the punishment seems to be disproportionate. Appellant should not have indulged in a prosecution in which he has personal interest. The fact that in a group litigation which involved 150 members, only 3 have found cause for grievance is a factor of relevance. Thus in totality of facts, decide that appellant should be suspended for a period of 7 years. This will also act as an example to others to prevent recurrence of such incidents.
C. Ravichandran Iyer vs Justice A.M. Bhattacharjee & Ors
Bench: Ramaswamy, K
Equivalent citations: 1995 SCC (5) 457
FACTS: The petitioner, a practising advocate, has initiated the public interest litigation under Article 32 of the Constitution seeking to issue an appropriate writ, order or direction restraining permanently 87
the Bar Council of Maharashtra and Goa [BCMG], Bombay Bar Association [BBA] and the Advocates'
Association
of
Western
India
[AAWI],
respectively,
coercing
Justice
A.M.Bhattacharjee. Chief Justice of Bombay High Court, to resign from the office as Judge. He also sought an investigation by the Central Bureau of investigation etc. [respondents 8 to 10] into the allegations made against the Justice Bhattacharjee and if the same are found true, to direct the Speaker Lok Sabha to initiate action for his removal under Article 124 (4) and (5) read with Article 218 of the Constitution of India and Judges (Inquiry) Act, 1968. Supreme court:
This Court on March 24, 1995 issued notice to respondents BCMG,BBA and AAWI only and rejected the prayer for interim direction to the President of India and the Union of India not to give effect to the resignation by the 1st respondent.
Court also issued notice to the Attorney General for India and the President of the Supreme Court Bar Association [SCBA].
The BBA filed a counter affidavit through its President, Sri Iqbal Mahomedali Chagla. Though respondents BCMG and AAWI are represented through counsel, they did not file any counter-affidavit. The SCBA informed the Court that its newly elected office bearers required time to take a decision on the stand to be taken and court directed them to file their written submissions
Contentions of the Petitioner:
The petitioner argued that the news published in various national newspapers do prove that respondents BCMG and AAWI had pressurised Justice Bhattacharjee to resign from the office as Judge for his alleged misbehaviour.
The Constitution provides for independence of the Judges of the higher courts, i.e., the Supreme Court and the High Courts. It also lays down in proviso [a] to clause (2) of Article 124; so too in Article 217 (1) proviso (a) and Article 124 (4), procedure for 88
voluntary resignation by a Judge, as well as for compulsory removal, respectively from office in the manner prescribed therein and in accordance with the Act and the Rules made there under.
The acts and actions of the respondents BCMG and AAWI are unknown to law, i.e., removal by forced resignation, which is not only unconstitutional but also deleterious to the independence of the judiciary.
Argued and requested the Court to adopt such procedure which would safeguard the independence of the judiciary and protect the judges from pressure through unconstitutional methods to demit the office.
BBA explained the circumstances that led the BBA to pass the resolution requesting Justice Bhattacharjee to demit his office as a Judge in the interest of the institution.
It was also rumoured that “the former Chief Justice of Bombay has been paid a large sum of money in foreign exchange purportedly as royalty for a book written by him, viz., “Muslim Law and the Constitution”. The amount of royalty appeared to be totally disproportionate to what a publisher abroad would be willing to pay for foreign publication of a book which might be of academic interest within India There was a growing suspicion at the Bar that the amount might have been paid for reasons other than the ostensible reason”.
Further stated that Justice Bhattacharjee himself had discussed with the Advocate General on February 14, 1995 impressing upon the latter that the Chief Justice “had decided to proceed on leave from the end of February and would resign in April 1995.
Suddenly on February 19, 1995, a press interview published in Times of India said to have been given by Justice Bhattacharjee stating that “he had not seriously checked the antecedents of the publishers and it was possible that he had made a mistake in accepting the offer”. He was not contemplating to resign from judgeship at that stage and was merely going on medical leave for which he had already applied for and was granted.
89
AFTERMATH:
The BCMG passed a resolution on February 19, 1995 seeking “resignation forthwith” of Justice. On February 21, 1995, the BBA received a requisition for holding its General Body meeting to discuss the financial dealings said to have been had by the Justice “for a purpose other than the ostensible purpose thereby raising a serious doubt as to the integrity of the Chief Justice”. At the desire of Chief Justice to meet, Shri Chagla and Shri Yande met him at his residence at 10.00 a.m.:
Justice Bhattacharjee informed that he had already agreed to resign and in fact called for and showed a letter dated 17th February, 1995 addressed to the Honourable the Chief Justice of India in which he proposed to go on medical leave for a month and that at the end of the leave or even earlier he proposed to tender his resignation”.
Justice Bhattacharjee assured Shri Chagla and Shri Yande that he would “resign within a week which resignation would be effective some 10 or 15 days thereafter and that in the meanwhile he would not do any judicial work including delivery of any judgment
On enquiry being made from the Principal Secretary to Justice Bhattacharjee whether he had tendered his resignation, it was replied in negative which showed that he had not kept his promise. Consequently, after full discussion, for and against, an overwhelming majority of 185 out of 207 permanent members resolved demanding his resignation.
Since the 1st respondent has already resigned, the question is whether a Bar Council or Bar Association is entitled to pass resolution demanding a judge to resign, what is its effect on the independence of the judiciary and whether it is constitutionally permissible. Shri Nariman – counsel for BBA contended that:
The Supreme Court and the High Court are two independent constitutional institutions. The Judges and the Chief Justice of a High Court are not subordinate to the Chief Justice of India. The constitutional process of removal of a Judge as provided in Article 124 (4) of the Constitution is only for proved misbehaviour or incapacity. 90
Impeachment proceedings against Justice V. Ramaswami indicate that the process of impeachment is cumbersome and the result uncertain. Bar being a collective voice of the court concerned has responsibility and owes duty to maintain independence of the judiciary.. Bar is not aware of any other procedure than the one under Article 124 (4) of the Constitution, and the Act.
Therefore, the BBA, instead of proceeding to the press, adopted democratic process to pass the resolution, in accordance with its bye-laws, when all attempts made by it proved abortive. The conduct of the Judge betrayed their confidence in his voluntary resignation. Consequently, the BBA was constrained to pass the said resolution. Thereby it had not transgressed its limits.
Shri Salve – Counsel for BCMG contended that:
Justice Bhatacharjee is its member, submitted that when the Bar believes that the Chief Justice has committed misconduct, as an elected body it is its duty to pass a resolution after full discussion demanding the Judge to act in defence of independence of the judiciary by demitting his office.
Independence of the judiciary is paramount. Such procedure which would be conducive to maintain independence of the judiciary and at the same time would nib the evil in the bud, needs to be adopted. Court to evolve a simple and effective procedure to meet the exigencies.
Attorney General contended:
Any resolution passed by any Bar Association tantamounts to scandalising the court entailing contempt of the court. It cannot coerce the Judge to resign.. The Chief Justice of India would adopt such procedure as is appropriate to the situation.
Cited the advice tendered by Lord Chancellor of England to Lord Denning, when the latter was involved in the controversy over his writing on the jury trial and the composition of the black members of the jury, to demit the office, which he did in grace. 91
Rule of Law and Judicial Independence – Why need to be preserved? Rule of law and judicial review are basic features of the Constitution. As its integral constitutional structure, independence of the judiciary is an essential attribute of rule of law. In S.P.Gupta vs. Union of India [(1981) Supp. SCC 87], this Court held that if there is one principle which runs through the entire fabric of the Constitution it is the principle of the rule of law, and under the Constitution it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the rule of law meaningful and effective. Judicial review is one of the most potent weapons in the armoury of law. The judiciary stands between the citizen and the State as a bulwark against executive excesses and misuse or abuse of power by the executive. It is, therefore, absolutely essential that the judiciary must be free from executive pressure or influence which has been secured by making elaborate provisions in the Constitution with details. Judicial individualism – whether needs protection? Independent judiciary is, therefore, most essential when liberty of citizen is in danger. The heart of judicial independence is judicial individualism. Justice Douglas in his dissenting opinion in Stephen S. Chandler v. Judicial Council of the Tenth Circuit of the United States [1970] USSC 160; [398 US 74:26 L.Ed. 2d 100] stated:“No matter how strong an individual judge's spine, the threat of punishment – the greatest peril to judicial independence – would project as dark a shadow whether cast by political strangers or by judicial colleagues. A federal judge must be independent of every other judge. Neither one alone nor any number banded together can act as censor and place sanctions on him. It is vital to preserve the opportunities for judicial individualism.”
Principles laid down in regard to Bar-Bench relations.
By passing a resolution for the removal of a sitting Judge of a High Court, the Bar Association has made a contempt of Court. This is not a proper manner of removal of a
92
Judge. Article 124 gives the power to the Parliament to remove a Judge of a High Court or a Supreme Court only after impeachment and by following proper procedure.
A Libel upon a judge in his judicial capacity is contempt.
Sanjay R Kothari v. South Mumbai Consumer Disputes Redressal Forum. Questions raised The matter was decided by a 2 judge bench of the Bombay High Court. The questions raised in this case, which consisted of 2 writ petitions involving common issue, were whether parties before the Consumer Disputes Redressal Forum(CDRF) and Consumer Disputes Redressal Commission are entitled to be represented by authorised agents who are not enrolled under the Advocates Act, 1961 and such Authorised Agents have the right of audience. Brief Facts The petitioners in the first writ petition who are advocates by profession, filed complaint respondent Nos. 2 and 3 – tour operators before respondent - CDRF complaining deficiency in their service. The petitioners through this writ petition contests the order given by CDRF which held that Shri Jahangir Gai, the authorised agent of the petitioners, had no right to plead before the Consumer Forum since he is not enrolled as an Advocate under the Advocates Act, 1961. The second writ petition has been filed by original Complainant, petitioner No. 1 and his "authorised agent", petitioner No. 2 against the order of the CDRF restraining petitioner No 2 from appearing before it. CDRF also passed order preventing any agent other than advocates from appearing before it. Though in the aforesaid writ petitions, the issue involved is common, the difference is that in first writ petition "the consumer" is before the Court contending that he has a right to engage an "agent" to act, appear and plead before the Consumer Forum, while in the second writ petition, 93
the authorised agent himself is before the Court contending that he has every right to act, appear and plead before the Consumer Forum as authorised agent of the parties whenever parties so desire. Since the question of greater importance to the Bar was raised, the Bar Councils of Maharashtra and Goa and the Bar Council of India were impleaded into the petition. Relevant provisions of statutes discussed The Maharashtra Govt framed rules in exercise of its power under S 32 of the Consumer Protection Act of 1986. A party to a dispute before the Consumer Forum has a right to appoint an agent to represent it and the said right is conferred under the Rules of 2000 which are framed by the State of Maharashtra in exercise of the powers conferred on it under Section 30(2) of the Act of 1986(Rules 4(7) and 8(7)). Ss 29,32 and 33 of Advocates Act were also discussed in the case. The sum and substance of these provisions are - the right conferred on advocate under the provisions of the Advocates Act is a statutory right and not a fundamental right guaranteed under the Constitution. A person who is not an advocate cannot practise law. Any person other than party to the proceedings or advocate cannot claim right of audience before the Court, tribunal or authority unless it is provided by law or such person is specifically permitted by such court, tribunal or authority. Thus, a person who is not enrolled as advocate can appear before the authority or person if so provided by law. Decision of the Court A party to the proceeding before the District Forum/State Commission has right to authorise a person of his choice to represent him and appearance of such agent authorised by the party on the date of hearing before District Forum/State Commission is not restricted to physical appearance but includes in terms of Rule 4(7), 8(7) or 9(6) of Rules of 2000 to examine and cross examine the witnesses, address the court and take part in the proceedings as the case may be. The Act of 1986 is a special piece of legislation for the better protection of the interests of consumers. In District Fora, State Commission and the National Commission, extensive participation is given to non-legal or non-judicial persons to be members of the District Fora, 94
State Commission or National Commission. The Act has been enacted to give succour and relief to the affected or aggrieved consumers quickly with nil or no expense. Therefore taking a view which does not grant the authorised agent of the complainant, the right to appearance (which includes right to examine and cross examine witnesses, address the court and take part in the proceedings) and the right to audience by the Court would negate the objectives for which the Act of 1986 was enacted. By not accepting the writs, the complainant to the proceeding before District Forum/State Commission who cannot conduct the case himself shall be compelled to engage the services of legal practitioner when the law makers intended to provide remedy with nil or no expense. Therefore the Court accepted the writ and ruled in favour of the petitioners holding that authorised agent of complainant can appear before the Consumer Fora and this agent has the right to audience before the Fora. Relevant cases discussed HarishankarRastogi v. Girdhari Sharma.AIR 1978 SC 1019 The Supreme Court in this case held that a private person, who is not an advocate, has no right to barge into Court and claim to argue for a party. He must get the prior permission of the Court, for which the motion must come from the party himself. It is open to the Court to grant or withhold permission in its discretion. In fact, the Court may, even after grant of permission, withdraw it half-way through if the representative proves himself reprehensible. Observations and the ratio laid down in the case of Harishankar Rastogiwould not have any application in the present case. Firstly, the Apex Court was considering an application of a person who was seeking permission to be represented by another person who was not an advocate to represent him before the Apex Court and not before Consumer Fora. Secondly, case in hand arises out of social beneficial oriented legislation enacted for better protection of the interest of consumers. Thirdly, the Consumer Fora are quasi judicial authority and not a Court and fourthly the Code of Civil Procedure is not applicable except for a limited purpose reflected in Sub-section (4) of Section 13 of the Act of1986.Thus the Court held that the ratio of Harishankar Rastogi cannot be applied in the instant matter. Various other cases were also mentioned and discussed, however they are not relevant.
95
Shiv NarainJafa Vs. The Hon'ble Judges of the High Court of Judicature at Allahabad AIR1953SC368, (1953)IIMLJ238(SC) Brief Facts: The advocate (Mr. Jafa) appealed against a decision of the Full Bench of the Allahabad High Court, suspending him from practice for a period of 6 months under the provisions of the Indian Bar Councils Act. Mr. Jafa represented a man accused of attempting to rape a woman (Himman) of the lower caste at a trial before the Asst. Sessions Judge, u/s 376, IPC, r/w S. 511, IPC. Despite the defence put forth, by way of improbability of his committing the offence due to “physical defect” as well as by attributing false implication by his enemies, the accused was sentenced to rigorous imprisonment for 5 years, which was brought down to one year on appeal. Owing to the conduct of the advocate during the trial, the Asst. Sessions Judge complained to the High Court for taking disciplinary action against Mr. Jafa for professional misconduct. Issues: The HC directed the District Judge, u/s 10(2), Bar Councils Act to hold an inquiry into the matter, pursuant to which the Dist. Judge framed several charges and found that Mr. Jafa should not be allowed to continue as a member of the Bar. There were 3 main charges: The first charge mainly referenced Mr. Jafa’s conduct in the trial. The second charge (based on questions put to Himman, and a witness in another case) is to the effect that Mr. Jafa was in the habit of putting scandalous and obscene questions to women witnesses. The third charge is that he deliberately raised groundless personal issues (to pick up quarrels and bully the presiding officers of courts). The High Court acquitted Mr. Jafa of all charges, save 2 subsidiary charges, the content and reasons for which are explained below:
96
The action of Mr. Jafa in misleading the court by listing Himman’s husband in an application for a copy of his witness statement, even though u/s. 162, CrPC, he could not apply for and obtain a copy of the statement recorded by the Police as the husband was not called for the prosecution to give evidence in the Sessions trial. This action of the Advocate is characterised by the High Court as a “piece of sharp practice which was entirely unworthy of a member of the Bar and amounted to professional misconduct.” Mr. Jafa had put forth a very improper and irrelevant question to the Investigating Inspector (S.I.) in cross-examination in the trial, (whether he had been alone with Himman in her field till midnight or till a late hour in the night). The suggestion of misbehaviour by the S.I, was a scandalous allegation put forward in the form of a question without any real justification. The HC took the view that the Advocate's conduct was “reprehensible and that it amounted to professional misconduct which would justify disciplinary action against him.” Other questions put forth by Mr. Jafa in the trial, such as those put to Himman as to the “physical characteristics” of the accused, were held by the HC as reflecting in some measure upon the Advocate's capacity as a lawyer and containing no sufficient reason for holding that Mr. Jafa deliberately intended to put indecent questions to the witness merely to embarrass and annoy her. Held: The Supreme Court, in considering the matter on appeal, felt that the case did not deserve severe disciplinary action and held for the 2 subsidiary charges that: Mr. Jafa’s conduct in obtaining the copy as under the first subsidiary charge, cannot justify suspension from practise, as the Court itself failed to exercise its jurisdiction in not refusing the application in view of the express provisions of Section 162. The questions put by Mr. Jafa did carry a veiled insinuation about the S.I’s behaviour, but were not objected to by the S.I. or the Court, and were intended to impeach the S.I’s credit. However, the subject matter of the questions and the manner in which they were put were held by the Supreme Court to suggest that the advocate did exceed the legitimate bounds of his privilege to some extent. While the HC order was set aside, Mr. Jafa was issued a warning by the Court, so as to make him more careful in the future.
97
P.J. Ratnam v. D. Kanikaram and Ors., AIR 1964 SC 244 – 7 pages Bench – C.J. Bhuvaneshwar Prasad Sinha, J. JC Shah, J. N Rajagopala Ayyangar Brief Facts Respondents and one other were Pl. in O.S. 432 of 1951 before the District Munsiff, Guntur – claim for possession of certain lands; appellant was the advocate of the respondents. Suit dismissed by the Trial Court and appealed before the Sub – Judge, Guntur – pending disposal of appeal court directed sale of standing crops on suit - land and deposit of proceeds in the court; accordingly, sum of Rs. 1,600/- deposited in Court on 19th December, 1951. Appeal allowed by Sub – Judge and the unsuccessful defendants of that cases preferred a second appeal before the High Court – meanwhile, Pl. applied to withdraw the sum deposited in Court. interim order of high court granted liberty to Pl. to withdraw the money, pending disposal of second appeal, after furnishing security of immoveable property. Security furnished, withdrawal ordered – cheque petition EA 250 of 1952 filed and allowed – cheque issued to the Advocate (Appellant of this case) for a sum of Rs. 1,452.40/- which was left over after deduction of poundage etc. in favour of the Pl. (respondents of this case) Appellant advocate cashed the cheque on 23 April, 1953 and the allegation against him is that he did not pay the sum to the Respondents despite their repeated demands. Second Appeal before the High Court was allowed in August 1955 and the sum had to be refunded to those defendants. 8th February 1956, Pl.(Respondents) made a written demand on appellant(lawyer) claiming the unpaid proceeds from the cheque that was issued in their credit but which the Appellant allegedly did not hand over. April 14th 1956 appellant replied claiming to have paid over the said sum on their passing a receipt and that the receipt was in the bundle of case papers which had been returned to the Respondents.
98
Before receipt of reply, the respondents filed complaint u/s 12 and 13 of the Legal Practitioners act alleging non – payment of money and charging the advocate with professional misconduct and praying for an enquiry. As the Appellant was an advocate, the complaint was treated as one u/s 10(2) of the Bar Councils Act, 1926. Explanation of advocate called for; District Judge, Guntur directed to hold enquiry into the matter and submit report to the High Court. District Judge’s report held that Appellant’s (lawyer) case was not unbelievable and that he was entitled to the benefit of the doubt. High Court hearing of the same – alleged that material witnesses were not examined – agreeing with the same HC directed the Dist. Judge to summon and examine the witnesses, record and submit their evidence. Subsequently, matter was heard by a three judge bench of the HC and they held that the charge against the appellant i.e. that he did not pay over the money was clearly made out and held him guilty of professional misconduct and suspended him from practise. Appellant (lawyer) preferred a SLP under Article 136 challenging the decision. Issues and Decision Bar Council had not been consulted before the case was referred to the learned District Judge for inquiry and report and this vitiated the legality of the entire proceedings against the appellant. Section 10(2) of the Indian Bar Councils Act lays down that upon receipt of a complaint, by a court, or Bar Council or any person, as to the conduct of an Advocate, the HC (if it does not summarily reject such complaint) refer the case for inquiry to the Bar Council, or after consultation with the Bar Council to the Court of the District Judge. Held – matter is a question of fact; the matter was not agitated before the HC at the time of hearing or at the time of applying for certificate to appeal before the SC under Article 136. Thus Court declined to look into the factum of whether or not such a consultation had taken place, and if it did not then why it did not etc. even if the section was mandatory. Presumption of legality of judicial and official acts – absence of explicit statement in the order of reference u/s 10(2) to the Dist. Judge about consultation with Bar Council did not automatically prove that there was no consultation.
99
Complaint filed by respondents – not signed or properly verified per relevant HC rules – dissimilarity of signatures of respondents – the petition was not filed by the respondents but by someone inimical towards the Appellant. Held – objection considered frivolous and dismissed As the complaint against the lawyer was misappropriation of money, the court should have asked the complainants to prosecute the appellant for the same and not initiated action against the lawyer u/s 10. Held – without going into the substantive law presented, the court stated that the object of a proceeding in respect of professional misconduct differs from others – proceedings under the Bar Councils Act are taken to ensure that the highest standards of professional conduct are maintained at the Bar – such proceedings designed for the purpose of maintaining discipline and to ensure that a person does not continue in practice who by his conduct has shown that he is unfit to do so. Other proceedings for the purpose of enforce the law and punish the offender. Although court accepted that if ordinary proceedings were initiated against the erring lawyer and he was acquitted, there would be no scope for a charge of professional misconduct on the same facts. Discretion in deciding how to treat such complaints – not beyond the jurisdiction of the court to proceed with enquiry for professional misconduct when the charge against him is an offence under ordinary criminal law – misconduct in this case intimately connected with duty of lawyer to his client in his professional capacity. Stephens v. Hill - if the attorney has been guilty of something indictable in itself but not arising out of the cause (in which he is engaged professionally) the Court would not inquire into that with a view to striking him off the roll but would leave the party aggrieved to his remedy by a criminal prosecution. Procedural irregularity - mode in which the case against the appellant was conducted - evidence on behalf of the complainants was permitted to be led after the appellant had examined himself and it was urged that thereby the complainants had been afforded an opportunity of filling up any lacuna in their case. Held – dismissed Pl. No. 4 (Kagga Veeraiah) had admitted that he and the other Pl.’s had received the proceeds of the cheque and the HC was wrong in finding against the appellant Held – case of the complainants that 4th Pl. (Kagga) died in 1957 – man produced as Court Witness No. 7(CW 7) claiming to be Kagga and stating that the money had been paid was an impersonator – death certificate of Kagga produced – cross examination of 100
the CW 7 was unsatisfactory; either CW 7 was an impersonator or being the real Kagga he was lying – SC did not interfere with the HC’s appreciation of this fact. Punishment of 5 years too harsh Held – punishment given too lenient in view of misappropriation of client’s money and bringing false evidence - refused to change the punishment.
SUPREME COURT BAR ASSOCIATION v. UNION OF INDIA (1998) 4 SCC 409 CORAM: HON'BLE JUSTICE S. C. AGRAWAL, HON'BLE JUSTICE G. N. RAY, HON'BLE JUSTICE DR. A. S. ANAND, HON'BLE JUSTICE S. P. BHARUCHA& HON'BLE JUSTICE S. R. BABU FACTS In Supreme Court bar Association case, the Supreme Court revisited its earlier decision in Vinay Chandra Mishra, Re. In Vinay Chandra Mishra case, the Supreme Court punished a lawyer for contempt. While meting out the punishment, apart from sentencing for imprisonment, the lawyer was suspended from practice for a period of 3 years. Aggrieved by the decision of the Court to suspend the lawyer for 3 years under contempt jurisdiction, the Supreme Court Bar Association, through its Honorary Secretary, approached the Supreme Court under Art.32 of the constitution. ISSUES Whether the Supreme Court has powers to enquire into or debar / suspend a lawyer for professional misconduct, which is an exclusive jurisdiction of Disciplinary Committee of BCI, arising out of contempt of court? HELD Supreme Court has been vested with all the powers of a Court of Record under Art. 129 of the Constitution. A court of record is a court, the records of which are admitted to be of evidentiary 101
value and are not to be questioned when produced before any court. The power of the courts of records to punish for their contempt is part of their inherent jurisdiction and is essential for the proper administration of justice. The powers of the Supreme Court to punish for contempt is also governed by Art.142 of the Constitution. Art.142(2) allows the Parliament to create a statute for regulating the contempt powers of the apex court. However, no such law has been enacted by the Parliament. The Contempt of Courts Act does not have provisions which deal with the Supreme Court’s powers to enquire and inflict punishment for contempt. Jurisdiction of the Supreme Court to punish an advocate for contempt is different from the jurisdiction of the Supreme Court to punish an advocate for professional misconduct. In Vinay Chandra Mishra case, the Supreme Court had held that since, the apex court had appellate jurisdiction under S.38 of the Advocates Act over the punishment imposed by the Disciplinary Committee, it also had powers to suspend or debar a lawyer from practicing under contempt jurisdiction. The Court held that Punishment for professional misconduct is the exclusive jurisdiction of the State bar Councils or Bar Council of India. Supreme Court while punishing an advocate for contempt cannot punish him by suspending his license for practice or removing his name from the rolls of the State Bar. Such punishments cannot be imposed by the Supreme Court even while exercising its appellate jurisdiction under S.38 of the Advocates Act,1961. When the Court finds an advocate for contempt of court, the Bar Councils should act in aid of the Court and initiate proceedings for professional misconduct as per the relevant provisions of the Advocates Act and Rules. To that extent, the Court overruled the decision in Vinay Chandra Mishra Case. This decision has been approved in Bar Council of India v. High Court of Kerala.
TC Mathai and Anr V. District, Sessions Judge Thiruvananthapuram ,Kerala Division bench- K T THOMAS & M B SHAH Facts-The appellant claims to be power of attorney holder of the respondants , a couple in Kuwait-asked permission at Session Court Tvm to represent them in criminal revision petition where they are arrayed as respondants- court denied as such request didn’t emanate from respondant couple-moved to HC Kerala under A-226 for issuance of direction to the session 102
judge to grant permission sought- single judge HC dismissed original petition against the appellant filed a writ appeal which was also dismissed by Division bench of HC- Appellant moved to Supreme Court –appeared in person to argue in this matter. His contentions –as he having the power of attorney he should be allowed to plead on behalf of the respondant couple Sec 303 of CrPc entitles a person to right of being defended by a pleader of his choice. The term pleader defined 2(q) “Pleader”, when used with reference to any proceeding in any court, means a person authorized by or under any law for the time being in force, to practice in such court, and includes any other appointed with the permission of the court to act in such proceeding. The definition include two people: 1) legal practitioner 2) any other person- here the permission of the Court must be obtained in order to appear in the Court ,in tune with sec 32 of the adv act which empowers the Court to permit anyone who is not enrolled as an advocate to appear before it in any particular case. But if he is to plead for another person in a criminal Court such permission must be sought for by that person. It is not necessary that pleader should be the power of attorney holder of the party in the case, the necessity is the permission of the Court must be obtained. The work in a Court of law is a serious function. The primary duty of the criminal court is to administer criminal justice .Any mistake can cause serious consequences to the parties concerned. It is not just somebody representing the party in the criminal court who becomes the pleader of the party. An advocate is entitled to represent but in the matter of other proposed person if he is not such a qualified person the Court has to first satisfy itself whether the person would be able to assist the Court as expected. The reason for Parliament for fixing such a filter in the def clause 2(q), that prior permission must be secured before a non –advocate is appointed by the party to plead his cause in Court , is to enable the Court to verify the level of equipment of such person for pleading on behalf of the party. 103
The appellant submitted that he is the duly appointed attorney of the respondent-couple by virtue of an instrument of power of attorney executed by them and on its strength he contended that his right to represent the respondent-couple in the court would be governed by the said authority in the instrument. Section 2 of the Power of Attorney Act 1882 empowers the donee of a power of attorney to do anything in and with his own name and signature” by the authority of the donor of the power. Once such authority is granted, the said Act recognises that everything done by the donee “shall be as effectual in law as if it had been done by the donee of the power in the name and with the signature ..... of the donor thereof’. Section 2 of the Power of Attorney Act Cannot override the specific provision of a statute which requires that a particular act should be done by a party-in-person. When the Code requires the appearance of an accused in a court it is no compliance with it if a power-of-attorney holder appears for him. It is a different thing that a party can he permitted to appear through counsel. Chapter XVI of the Code empowers the Magistrate to issue summons or warrant for the appearance of the accused. Section 205 of the Code empowers the Magistrate to dispense with “the personal attendance of the accused, and permit him to appear by his pleader” if he sees reasons to do so. Section 273 of the Code speaks of the powers of the court to record evidence in the presence of the pleader of the accused, in cases when personal attendance of the accused is dispensed with. But in no case can the appearance of the accused be made through a power-ofattorney holder. So the contention of the appellant based on the instrument of power of attorney is of no avail in this case. Appeal dismissed.
Thomas P C v. Bar Council of Kerala & Ors 69 Coram: K. Balakrishnan Nair, J. Facts; 104
AIR 2006 Ker
This Writ Petition is filed by a Priest. He submitted the application for enrolment, before the Kerala Bar Council. However, he was called upon to submit certain particulars and also to furnish an affidavit, stating that, he is not holding any post or rendering any service or doing any business or profession in any society or institution. He submitted the documents and also produced a certificate, which stated that he is working as a Parish Priest of a Church, for which, there was no remuneration. The Petitioner was called for a hearing, by the Enrolment Committee but he was not permitted to participate in the enrolment. According to the Bar Council, the petitioner has entered the profession of divinity which has got all the trappings of an employment or a profession. He is employed as a parish priest and therefore, is not eligible to be enrolled as an advocate, as per the rules (Rule 2(h) of the Bar Council of Kerala Rules & Rules 47 to 49 of the Bar Council of India Rules). Question raised: Whether priests and nuns are eligible to be enrolled as advocates? Held: Going by the dictionary meaning of profession, religion/divinity is treated as a profession. So, nuns and priests are members of that profession. But, the profession mentioned in Rule 2(h) of the Bar Council of Kerala Rules, is a profession, which is analogous to trade or business, which generates income and not the profession of religion. The contention of the Respondents that priests, nuns etc., are not eligible to join the profession of lawyering, is not supported by any statutory provision. The entry of such persons, will only add luster to the profession. The profession needs selfless dedicated persons to take up the causes of the downtrodden without being concerned with the fee paid. Being a Parish priest, also need not be necessarily a disqualification, as the same will depend upon the time required to discharge his duties as a Parish priest. If those duties, are rendered as a part-time voluntary service to the parishioners and the same will not affect his functioning as a full-time lawyer, he can be allowed to be enrolled. Otherwise, he can be asked to quit the post of Parish priest, to enable him to get enrolled as an Advocate.
105
U.P. Sales Tax Service Association v. Taxation Bar Association, Agra and Others Citation: (1995) 5 SCC 716 Quorum: K. Ramaswamy and B.L. Hansaria Relevant Law: Advocates Act, 1961 - Section 35, Contempt of Courts Act, 1971 – Section 2(c) Pages: 14 Facts: Pursuant to a resolution passed by the Taxation Bar Association, one Ramesh Chander Gupta, Advocate and President of that Association along with two others met Respondent 3, Satti Din [Deputy Commissioner (Appeals), Sales Tax] in his chamber and accused him of “demanding illegal gratification in the discharge of his duties as appellate authority and dissatisfaction widely prevailing amongst the advocates and litigants”. Allegations and abuses were made by both sides resulting in widespread violence. The advocates then went on strike. Later, the first respondent made a representation to the District Magistrate, Agra, who asked Satti Din to go on leave on the conditionthat advocates would withdraw the strike. Though Satti Din initially went on leave, the advocates continued the strike. On his superior officer’s instructions, Satti Din rejoined duty. The advocates called an emergency meeting of the Associations and resolved to boycott all courts and observe total strike. Furthermore, they made representations to the Governor, Attorney-General and all concerned. The Attorney-General also initiated contempt proceedings against Satti Din and issued a show-cause notice under Section 15 of the Contempt of Courts Act. As the strike did not evoke the desired response, Respondent 1 filed a writ petition under Article 226 in the High Court. The High Court passed an order restraining Respondent 3 from discharging his functions until further orders and making it open to the Commissioner to transfer his cases to another court. This appeal reached the Supreme Court by special leave under Article 136 of the Constitution.
106
To satisfy whether there is some substance to the allegations of corruption against the officer, the Government was sent a notice to produce all his confidential service records and the Secretary filed an affidavit. The Court could not find any adverse remarks or any imputation with regard to corruption. The Court concluded that these allegations were made by Respondent 1 as they had been irked by Satti Din disposing of all matters on merits and not conceding to their demands for adjournments. Issues: The crucial question before the Court was whether the High Court could issue a writ or direction prohibiting a statutory authority from discharging quasi-judicial functions; direction to the State Government to withdraw all powers from it and transferring the pending cases before the officer to any other authority? Whether advocates would be justified to go on strike as a pressure group in that behalf? Decision: The Court after considering several decisions and authorities came to the conclusion that the High Court does not have the aforesaid power. Exercise of such power generates its rippling effect on the subordinate judiciary and statutory functionaries. On the slightest pretext by the aggrieved members or displeased members of the Bar, by their concerted action they would browbeat the judicial officers or authorities, who would always be deterred from discharging their duties according to law without fear or favour or ill-will. If the rule of law is to have any meaning, the confidence of the public in the authority of a court or statutory authority should not be allowed to be shaken, diluted or undermined. Casting defamatory aspersions upon the character, ability or integrity of the judge/judicial officer/authority undermines the dignity of the court/authority and tends to create distrust in the minds of the public and impede their confidence. Therefore, making wild allegations of corruption against the presiding officer amounts to scandalising the court/statutory authority. With regard to the strike by the advocates, the Court observed that advocates strike work and boycott courts at the slightest provocation overlooking the harm caused to the judicial system. 107
An advocate is an officer of the court and enjoys a special status in the society. After analysing several precedents on this subject, it was concluded that the advocates in this case were not justified in calling for a strike and boycott. Moreover, the Court observed that the advocate in this case in arming himself with a licensed revolver and attending the court with the same was acting in a manner that was regrettable and not befitting the dignity of the legal profession.
V.C. RANGADURAI v. D. GOPALAN AND OTHERS AIR 1979 SC 201; (1979) 1 SCC 308 Judges: V.R. Krishna Iyer, D. A. Desai, and A.P. Sen No. of pages: 14 The appeal files under section 38 of the advocates act, 1961 by V C Rangadurai, an advocate against the order of the disciplinary committee of the bar council of India upholding the order of the disciplinary committee II of the state bar council, Tamil Nadu. In the instant case advocate received a money suite from brief his client who is 70 year old deaf man (Deivasenapathy) and his aged wife (Smt. Kamalammal) and the power of attorney agent of the complainants (D. Gopalan) for the suit that the money advanced by the client under two promissory notes for Rs.15,000/- and Rs. 5000/- were not repaid by the debtor. The client handed over the case before the expiry of the limitation period to the advocate. They also paid the fee as fully demanded by an advocate. The advocate failed to file the suite with in the limitation period and even after the considerable time. In spite of this, the advocate made false representations to the complainants that the suits had been filed and were pending, gave them various dates as fixed in the two suits and later on falsely told them that the court had passed the decrees for recovery on the basis of two promissory notes. On the faith of such representations, the complainants issued a lawyer’s notice on the debtor (Smt. Maragathammal) to pay the amount due under decrees. Actually no such had in fact been filed nor any decree passed. On a complaint being made to the State Bar council, Tamil Nadu the appellant denied having received the two promissory notes or any amount for court-fees or his fees. He also pleaded that though he had drafted the plaints, he handed over the case to another advocate (K. S. Lakshmi 108
Kumaran), a junior who was the complainants choice, as he felt that since the debtor had consulted him in another matter, he as should not be engaged by the complainants. The other advocate pleaded that he had never met the complainants nor he had been instructed by them to file the suits, but had in fact signed the vakalat as junior counsel, as a matter of courtesy at the appellant’s behest. He also said that the appellant later told him that the plaint together with all the documents had been returned to the complainants as per a receipt. The receipt was found by the bar council to be forged by the appellant. The state bar council observed that in a case of such grave professional misconduct the appellant deserved the punishment of disbarment but in view of his young age, suspended him from practice for six years under section 35(4) of the act. He failed an appeal to the bar council of India. The disciplinary committee of the Bar Council of India upheld the decision, however reduced the period of suspension of the appellant from practice to one year. Further failed an appeal in the Supreme Court under section 38 of the Advocates Act, 1961, the appellant contended that the finding of professional misconduct was nit based on legal evidence but proceeded on mere conjectures and that the finding could not be sustained as there were discrepancies in the evidence. The apex court dismissed the appeal with a modification in the punishment that the appellant will do only free legal aid for one year under the State Legal aid Board and produces a certificate in that behalf from the board and shall not accept any private engagement during this period. And also pay Rs.2, 500 to the victim of the misconduct. The Court also has stated and outlined the duties and responsibilities of a counsel. In paragraph 30 of the said judgment this Court has held that counsel’s paramount duty is to the client and accordingly where he forms an opinion that a conflict of interest exists, his duty is to advise the client that he should engage some other lawyer. It was further held that it is unprofessional to represent conflicting interests, except by express consent given by all concerned after a full disclosure of the facts. The Court further went on to hold that the relation between a lawyer and his client is highly fiduciary in its nature and of a very delicate, exacting, and confidential character requiring a high degree of fidelity and good faith and that it is purely a personal relationship, involving the highest personal trust and confidence which cannot be delegated without consent. This Court also held that when a lawyer is entrusted with a brief, he is expected
109
to follow the norms of professional ethics and try to protect the interests of his clients, in relation to whom he occupies a position of trust. Sections Section 35 Punishment of advocates for misconduct.— (1) Where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee. 1[(1A) The State Bar Council may, either of its own motion or on application made to it by any person interested, withdraw a proceeding pending before its disciplinary committee and direct the inquiry to be made by any other disciplinary committee of that State Bar Council.] (2) The disciplinary committee of a State Bar Council 2[***] shall fix a date for the hearing of the case and shall cause a notice thereof to be given to the advocate concerned and to the Advocate-General of the State. (3) The disciplinary committee of a State Bar Council after giving the advocate concerned and the Advocate-General an opportunity of being heard, may make any of the following orders, namely:— (a) dismiss the complaint or, where the proceedings were initiated at the instance of the State Bar Council, direct that the proceedings be filed; (b) reprimand the advocate; (c) suspend the advocate from practice for such period as it may deem fit; (d) remove the name of the advocate from the State roll of advocates. (4) Where an advocate is suspended from practice under clause (c) of sub-section (3), he shall, during the period of suspension, be debarred from practising in any court or before any authority or person in India. (5) Where any notice is issued to the Advocate-General under sub-section (2), the AdvocateGeneral may appear before the disciplinary committee of the State Bar Council either in person 110
or through any advocate appearing on his behalf. 3[Explanation.—In this section, 4[section 37 and section 38], the expressions “Advocate-General” and Advocate-General of the State” shall, in relation to the Union territory of Delhi, mean the Additional Solicitor General of India.] Section 37 Appeal to the Bar Council of India.— (1) Any person aggrieved by an order of the disciplinary committee of a State Bar Council made 1[under section 35] 2[or the Advocate General of the State] may, within sixty days of the date of the communication of the order to him, prefer an appeal to the Bar Council of India. (2) Every such appeal shall be heard by the disciplinary committee of the Bar Council of India which may pass such order 2[(including an order varying the punishment awarded by the disciplinary committee of the State Bar Council)] thereon as it deems fit: 2[Provided that no order of the disciplinary committee of the State Bar Council shall be varied by the disciplinary committee of the Bar Council of India so as to prejudicially affect the person aggrieved without giving him reasonable opportunity of being heard.] Section 38 Appeal to the Supreme Court. Any person aggrieved by an order made by the disciplinary committee of the Bar Council of India under section 36 or section 37 1[or the Attorney-General of India or the Advocate-General of the State concerned, as the case may be,] may within sixty days of the date on which the order is communicated to him, prefer an appeal to the Supreme Court and the Supreme Court may pass such order 1[(including an order varying the punishment awarded by the disciplinary committee of the Bar Council of India)] thereon as it deems fit: 1[Provided that no order of the disciplinary committee of the Bar Council of India shall be varied by the Supreme Court so as to prejudicially affect the person aggrieved without giving him a reasonable opportunity of being heard.]
V.P.Kumaraveluv Bar Council of India &Ors. (6 Page Case) (1997) 4 SCC 266
111
Judges: S.C.Agrawal& Sujata V. Manohar JJ. Civil Appeals arose from a common order passed by the disciplinary committee of the Bar Council of India. Facts: V.P.Kumaravelu(Appellant) was appointed as City GovernmentPleader in all the civil courts constituted in Madras other than the High Court of Madras. He was also allowed the assistance of Office Staff.During the term of his office as a Government Pleader, two Complaints were filed against him before the Bar Council of Tamil Nadu regarding his omission to prosecute two cases resulting in ex-parte decrees being passed against the state and alleging that as a result of gross negligenceon the part of the appellant the Govt. of Tamil Nadu had suffered substantial loss. These complaints were later transferred to the Bar Council of India as the State Bar council could not dispose of the cases within the prescribed time period.6 The first complaint was in respect of asuit7on the file of the city civil court at Madras in which the Govt.Pleader was instructed to appear on behalf of the state Government.Memo of appearance had been filed by the earlier Govt. Pleader. The appellant took charge during the pendency of the suit. Fresh memo of appearance had not been filed by the appellant when he took charge as Govt. Pleader.The suit was decreed ex-parte against the state. An application was thereafter moved by the appellant to set aside the ex parte order. Court set aside the ex parte order on the condition that the Govt. should pay some amount as to costs. However, the cost was not deposited, and consequently the suit was decreed ex parte with costs. 6Section 36B(1) Advocates Act, 1961 : The disciplinary committee of a State Bar Council shall dispose of the complaint received by it under section 35 expeditiously and in each case the proceedings shall be concluded within a period of one year from the date of the receipt of the complaint or the date of initiation of the proceedings at the instance of the State bar Council, as the case may be, failing which such proceedings shall stand transferred to the Bar Council of India which may dispose of the same as if it were a proceeding withdrawn for inquiry under sub-section (2) of section 36. 7The suit was filed by Travancore textiles pvt. Ltd. Against the state of Tamil Nadu relating to a lease of land admeasuring 1240 sq. ft. forming part of a channel. The plaintiff had prayed for a declaration that the annual rent and municipal taxes levied were illegal. There was also a prayer for refund and a declaration that he need not pay any rent. 112
The Second Complaint was in respect of a suit filed by an employee of the Department of Education of Tamil Nadu challenging his Date of Birth. Summons and letters were forwarded to and received by the office of the Govt. Pleader regarding the suit. However, memo of appearance was not filed on behalf of the State. Ex-parte decree was passed in this suit as well. The Appellant failed to attend to two cases and the client had to suffer ex parte decrees. Contention of the appellant in both these complaints was that papers were not placed before him by his office staff. Accepting his contention BCI held office staff also responsible for misleading the appellant and not informing him. Government also did not depute a responsible officer to attend the office of the Govt. Pleader. However, appellant’s failure to attend to two cases cannot solely be the responsibility of his office staff as the appellant being the head of the office has a responsibility to make sure that the work is being properly and diligently done by the staff. Appellant has been held guilty of “constructive negligence” by the Bar Council of India. BCI has reprimanded him.The appeal before the Supreme Courtarose out of the common order passed by the BCI in both these complaints. Issue: Whether Negligence of the appellant amount to professional misconduct? Held: “Whether negligence will amount to professional misconduct or not will depend upon the facts of each case. Gross negligence in the discharge of duties partakes of shades of delinquency and would undoubtedly amount to professional misconduct. Similarly,conduct which amounts to dereliction of duty by an advocate towards his client or towards his case would amount to professional misconduct. But negligence without moral turpitude or delinquency may not amount to professional misconduct8.”
8In the case of In re A vakil (1926 ILR 49 Mad. 523), "negligence by itself is not professional misconduct; into that offence there must enter the element of moral delinquency.” 113
“In the present case, there is failure on the part of the appellant to discharge his dutiestowards his client. This failure, however, is not deliberate. It is on account of heavy pressure of workcoupled with lack of diligence on the part of his staff as well as on the part of his client in notsending a responsible person with papers tothe officeof the Government pleader.However, whilethe appellant cannot be held responsible for his client's failure to attend theoffice, the appellant cannot shift the blame entirelyon hisstaff. It was hisresponsibility as the head of the office to make surethat the work is properly attended to and the staff performs its functions properly and diligently. Theappellant has, therefore, rightly been held guilty of negligence. However, inthe absence of any moral turpitude or delinquency on his part, thefinding of the Bar council of India that his conduct in the facts and circumstances of this case amounts to professional misconduct cannot be sustained. The negligence on the part of the appellant in these circumstances cannot be construed as professional misconduct.”
Vijaya Singh v. Murarilal AIR 1979 SC 1719: (1979) 4 SCC 758 The appellant in the case was charged for improperly certifying, the solvency of a surety for an accused person, his client in a bailable offence. Rule 10, chapter 2 part six of the Rules of Bar Council of India for Professional Misconduct was violated by the appellant. Suspension from practice for one month was by trial tribunal and in appeal. Appeal was therefore preferred before the Supreme Court for an admonitory sentence by the Court ex-misericordium. The court on consideration pointed out that S.35 of the Advocates Act does permits reprimand provided the ends of public justice are met by this leniency. In the case of Moti Ram and Ors. v. State of M.P. [1969] 1 SCR 335, the Supreme Court taking cognizance of the harassment9flowing from sureties being insisted upon before a person is enlarged or bailed out, that the Court has the jurisdiction to release on his own bond without the necessity of a surety. 9The court pointed out that there are some magistrates who are never satisfied about the solvency of sureties except when the property of the surety is within their jurisdiction and Revenue Officers have attested their worth. This harasses the poor and leads to corruption.
114
The Rule with which we are concerned is a wholesome one in the sense that lawyers should not misuse their role for making extra perquisites by standing surety for their clients or certifying the solvency of such sureties. That is a bolt on the bar, an exploitative stain on the profession. At the same time, the punishment is flexible in the sense that where the situation cries for the help of the lawyer in favour of a client who is languishing in jail because his surety is being unreasonably rejected, we may not frown upon a lawyer who helps out the person, not by false pretences, but on the strength of factual certitude and proven inability to substantiate solvency. The culpability of the advocate in the instant case is therefore to be decided on whether the circumstances of the offence and offender are venal or venial. The court noted that the lawyer is young, the offence is not tainted with turpitude and the surety whose solvency be certified was found to be good. In the present case, the circumstances are amelioratory and hardly warrant condign punishment. It held that public admonition was an appropriate sentence in the present case and administered it in open court to Appellant. Court reprimanded Appellant directed that Appellant should not violate the norms of professional conduct and should uphold the purity and probity of the profession generally, and, in particular, as spelt out in the rules framed by the Bar Council of India.
Vikas Deshpande v. Bar council of India and others. (2003) 1 SCC 384 Judges: V.N Khare, Ashok Bhan No: of pages: 7 Facts: Ramrao chandobha jadav, vidhyadar ram rao, chandrakanth ramdeo jadhav were prosecuted for committing murder of 6 persons. They requested the sessions court for Some sympathetic lawyer who appears for an indigent accused may commiserate and enquire whether the surety is solvent. If he is satisfied, on sure basis, that the surety is sufficiently solvent, then he may salvage the freedom of the accused by certifying the solvency of which he has satisfied himself. This would be a violation of Rule 10, chapter 2 part six of the Rules of Bar Council of India for Professional Misconduct. But it has to be noted that the degree of "Culpability in a lawyer violating Rule 10, chapter 2, part six depends on the total circumstances and the social milieu.
115
appointment of an advocate as amicus curiae to defend them. The court appointed S.V Ardhapurkar, advocate as amicus curiae to defend them. Sessions court after trial found complainants guilty of offence and awarded them death penalty. On the same day advocate contacted them in prison and obtained their thumb impression & signatures on vakalatnama to prefer an appeal in high court of Bombay. The advocate told he would not be charging any fees as he is doing this to make a name for himself. Some days after advocate meet the complainants again and obtained their signatures on some stamp pares. The deed was not read to them and the contents were not known to them. They signed and put their thumb impression in good faith. The high court dismissed the appeal and confirmed the death sentence. The advocate later met complainants in prison and told that he had sold their land on the basis of power of attorney executed in hid favour by them authorizing him to sell the land. That he had appropriated that the money received by him towards his fees. There after the complainant filed a complaint to the state bar council on effect that the advocate has committed an act which amounts to professional misconduct under section 35 of advocates act and for taking disciplinary action. State bar council took suo motu cognizance and issued notice to advocate who filed reply that he had also engaged some other lawyers and he was trying his level best to pay their fees of the said advocates by selling the land of complainants. He further stated that on the request of complainants he accepted vakalatnama on behalf of the complainants on an oral agreement that complainants would pay an amount of rs.50000 as fees and authorize him to dispose their land to recover and appropriate the money received from sale towards his fees. The complainant 2 was examined on oath. He stated that he and his two other associates hadn’t executed any power of attorney in favor of advocate authorizing him to sell their land and appropriate the sale consideration towards fees. He obtained their signatures on blank papers by misrepresenting the facts in order to defraud them. As state bar council couldn’t complete the proceedings in 1 year the complaint was transferred to bar council of India under s.36 (b) of advocates act. Repeated notices were send to advocate but he didn’t appeared. He was proceeded ex parte the BCI found advocate guilty of professional misconduct. It was found that the advocate failed to prove that the complainants had executed the power of attorney in his favor. the disciplinary committee of BCI found advocate guilty of gross professional misconduct under section 35 of advocates act and directed the state bar council of Goa and Maharashtra to remove the name of advocate from the roll of bar council of Maharashtra under section s.35 (3)(d) of act. Cost of 25,000 was imposed 116
and made payable to heirs of complainants because by that time complainants had already been put to death in execution of sentence imposed on them. A lien was created in property of advocate to recovery of cost. The advocate filed an appeal to Supreme Court against this decision. Dismissing the appeal SC held: the appellant took advantage of the situation and obtained power of attorney on misrepresentation & sold the property of complainants. He has committed a grave professional misconduct. The court further said the relationship between an advocate and his client is of trust and therefore sacred. Preservation of mutual trust between advocate and client is a must otherwise prevalent judicial system in the country would collapse and fail.
Vinay Chandra Misra, In Re
[(1995) 2 SCC 584]
JUDGES: Kuldip Singh, J.S. Verma, P.B. Sawant, Jj. Judgment delivered by Justice Sawant. FACTS OF THE CASE: A letter was addressed to acting Chief Justice by Justice S.K. Keshote of Allahabad HC complaining of misbehavior by one Shri. V.C. Mishra who was appearing in a case before him (M/s Bansal Forgings Ltd. v. U.P. Financial Corpn.). Brief facts of that bullshit case: [all part of the letter] M/s Bansal [B] took a loan from U.P. Fin. Corp. [UPFC] and defaulted in payment of installment. UPFC went against B. B filed civil suit against UPFC and also applied for grant of temporary injunction. UPFC’s counsel suo motu took this up with trial. Trial court passed orderUPFC to not take seize B’s factory and B has to pay installment amount and furnish security for disputed amt. by 31/1/94. Appeal has been filed against this order contending that court had no jurisdiction. When the judge asked V.C Misra [VCM] under which provision this order was passed, he went bat shit crazy and screamed at the judge saying he had no jurisdiction to ask that question before 117
threatening to get him impeached or transferred because of his influence and contacts. *Judge claims:*“In sum and substance it is a matter where except to abuse me of mother and sister, he insulted me like anything.” What VCM meant to convey was that admission and not arguments are heard at this stage. And the judge goes on to say that since this judge heard cases on the basis of merit and not admissions alone, he may have offended the lawyer. (also note that VCM was a senior advocate and questions were raised as to the example he’d set amongst the juniors). [letter over] Acting CJ forwarded letter to CJI who constituted a bench to hear the matter on 15/4/94, where court took the view of it to be criminal contempt of court by VCM and issued notice to him to show cause why contempt proceedings should not be initiated against him. VCM replied by an affidavit and also an application to discharge the show cause. Alternatively, hold an inquiry into this incident. He claims to deeply regret the remarks about the comments about all the contacts and connections he had, but also that the facts and circumstances are such which made him make such statements and that the judge was committing contempt of his own court. He then stated his version of that same bullshit case: B took a loan from UPFC. A controversy arose between them and B had to file a civil suit against UPFC so there is no judicial sale of their assets. Injunction was granted and B had to furnish security. B, being aggrieved by this order (which would require them t take out a mortgage), filed a complaint against the portion requiring them to furnish security where VCM argued for B. He goes on to state that the applicant (the judge in question) took charge of court proceedings not giving the senior judge opportunity to intervene. He then enquired under what law the order was passed to which VCM said O. 39 CPC. He then decided to set aside the entire order, and not just the portion he had appealed against, because he held the view that the Lower Court was not competent to pass such an order. To which VCM said that being the appellant, he had dominion over the case and it could not be made just because he appealed to HC. To this, the judge lost his temper and said he’d set aside the order in toto, to which he lost his temper since his “professional and institutional sensitivity was deeply wounded” and he said it isn’t the practice if the court to dismiss cases without hearing or upset judgments (or their part) not appealed against. He admits to the exchange getting heated, wherein he mentioned transferring the judge but not impeachment (in between a few witty remarks). He has gone on to say that the judge used 118
threatening remarks (about goondaism), lowering the authority of the court. He also denied the applicant’s claim of his reply about lack of jurisdiction to ask such a question, abusing him and said that such conduct would be foolish. He further contended that had he committed contempt, the senior judge or the applicant judge himself would have initiated proceedings under Art. 129 of the Constitution, instead of going to the acting CJI. He goes on to submit that “under the compulsion of” his “institutional and professional conscience” and upholding the standards as expected by the bench and bar, to order a thorough investigation into whether contempt was committed by him under Art 215 of the constitution or by the judge under sec 16 of contempt of courts act. He also made a complaint for not being given a copy of the letter given to the acting CJI and can’t gauge the rationale as to why the applicant did not initiate proceedings against him immediately, instead of writing a letter. The formal enquiry was not for vindication but to ensure that punishment is not meted out to outspoken lawyers, thus, keeping it a healthy democratic judicial system. He also stated that he is moving an independent petition against the judge under sec 16 of the contempt of courts act in the interest of fair play and justice. Court gave him 4 weeks time to file an additional affidavit giving more facts and details, which he did. The court heard VCM and his legal counsel, perused the counter and additional affidavit and decided to initiate proceedings of criminal contempt against VCM, dismissing his notice for discharge. Justice Keshote forwarded his comments on the affidavit denying all allegations against him following which MCV filed his unconditional written apology (where mainly, he boasts about the posts held by him and how lawyers need to learn to be good sporting losers. :/) following which he withdrew all his applications, counter affidavits and prayers made to the court. The court stated that it may not by inclined to accept the apology and adjourned the case to a later date so the counsels could argue the case on all points. ISSUES RAISED: 1. According to him, a court of record can only take cognizance for contempt to itself, (as worded in arts. 129 and 215 of the Cons.). hence, this action was not maintainable in the 119
Supreme court, as the alleged contempt was against the Allahabad High Court (also a court of record) which had vested in it power to punish for its contempt. 2. It was contended that it will be necessary to hold an inquiry into allegations made by the judge by summoning him for examination by VCM to verify his version of the incident as against that given by VCM. 3. Whether VCM is in fact guilty of contempt of court. HELD: 1. Article 129 vests in this court the power to punish for contempt of itself in the courts capacity as the highest court of record whose duty and responsibility it is to correct and protect lower courts i.e. superintendence over lower courts. As held in [Delhi Judicial Services Assn. v. State of Gujarat (1991) 4 SCC 406], the wordings of Article 129 and 215 are inclusive (including the power to punish for contempt of itself), which has been interpreted by the courts to give it a wide scope. High Courts have inherent power under Art. 215 to punish for a lower court’s contempt (even in the absence of express provision in the Act). The same should apply to the SC. Thus, it was held that SC had the power to initiate and entertain proceedings of contempt in subordinate courts. 2. There is nothing unusual in the course taken be the learned judge by writing a letter instead of initiating proceedings because he probably didn’t want to be a prosecutor, witness and judge in the same matter. The procedure adopted was summary and VCM’s interests were adequately safeguarded by issuing notice, allowing him to file a counter and supplementary affidavit and produce other material. But giving him the right to question the judge before whom contempt was committed destroys the jurisdiction of the court to adopt proceeding for this conduct. Section 14(3) of the Contempt of Courts Act, 1971 states that it is not necessary for the judge or judges, in the presence of whom the offence is committed, to appear as witness. His statement before CJI is enough evidence. 3. “Contempt of court” is defined as an act or omission calculated to interfere with the administration of justice. From the facts, it is evident that the allegation against VCM, if true, amounts to criminal contempt [ “criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which— (i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or 120
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;] Instead of filing evidence to back his story up, the advocate tendered a written apology. After hearing both sides, it is evident that the lawyer did try to insult the judge (in his manner, tone, demeanor and even in his version of the case by saying that the judge took charge of the proceedings), he admits to having lost his temper. Such conduct brings disrespect and disrepute to the entire judicial system and shakes the confidence of the people in the judiciary to deliver free and fair justice. If the judiciary is to perform its duty effectively, the dignity and authority of courts has to be respected and protected. Satisfied that VCM did indulge in the said acts, he had to undergo simple imprisonment for a period of 6 weeks and was suspended from practicing for a period of 3 years.
Srimathi And Others vs Union Of India And Others It was held that there is no provision to enable the bar council to deal with the dispute between the advocate and the client to compensate him for the damages and refund the money. Issue: to reconsider constitutionality of section 3 of Consumer Protection ACT; so as to excuse the service provided by advocates from the ambit of the act Facts:
The petitioner in these cases are practising advocates. Claims have been made against them by certain persons who are impleaded as respodents in the respective cases, before the Consumer Disputes Redressal Forum. In some cases it is before the District Forum and in some cases it is before the State Forum. The petitioner take the contention that advocates are governed only by advocates act, and they are not answerable for claims under consumer protection act They take the contention that no provision under the consumer protection act has the scope to include the services provided by an advocate. Also the definition of “consumer” would not include a client who has availed services from an advocate. According to the petitioners, an advocate in a particular case, can be made to defend a proceeding 1. under the Advocates Act before the Bar Council, 2. under the Criminal Law before the Criminal Courts, 3. before the Civil Court under the Civil Law, and 121
4. before the Consumer Redressal Forum under the Consumer Protection Act. It is argued that when there is a special enactment governing the advocates, viz., Advocates Act, he shall not be made to face claims under the different Acts, referred to above. It is stated that the provision contained in Section 3 of the Consumer Protection Act, by which, the provisions of the said Act are declared to be in addition to and not in derogation of the provisions of any other law for the time being runs counter to the objects of the Act. The prayer in these cases is to declare Section 3 of the Consumer Protection Act as unconstitutional, being opposed to the objects of the Act. Section 3 of the Act says is that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law. In other words, the Act does not have the effect of overriding other enactments with reference to matters dealt with in the Act. The section only provides that it will be open to any person to claim the benefits of this Act and also avail himself of the provisions of other enactments if there is no inconsistency or conflict and if he is not barred otherwise, by any other principle of law, like estoppel or election. Even if S 3 is made unconstitutional, the other sections remain intact and if the service provided by an advocate to the client falls under the purview of consumer act, the advocate can be taken to the consumer redressal forum. The writ was dismissed. The contentions of the petitioners were negatived. And further it was directed that in all petitions against whom proceedings have taken before the Consumer Redressal Forum, to raise all defences available to them in law excepting the question that the Advocates are not covered by the provisions of the Consumer Redressal Act.
Further, in the matter of Srimathi v. Union of India, the services performed by advocates were held to be services within the ambit of Section 2(1)(o) of the Consumer Protection Act, 1986, and it was laid down that it is open for aggrieved clients to institute proceedings against the advocates in the Consumer Redressal Forum. This would include actions for negligence. But this too, does not resolve the crisis of relitigation, giving rise to conflicting judgments by courts of competent jurisdiction.
Dinesh Chandra Pandey v. High Court of Madhya Pradesh and Anr. CITATION: (2010) 11 SCC 500Pages 14 Corum: B.S. Chauhan and Swatanter Kumar, JJ. Facts: Dinesh Chandra Pandey, the appellant herein, was appointed to the post of Civil Judge in the M.P. Judicial Service (Class II) on 27 th January, 1982 and in September, on completion of the training period, he joined as Civil Judge, Dhamtari. During his tenure as Civil Judge, certain irregularities were noticed by the competent authority and in 1988, a charge-sheet was served upon him, primarily, on the ground that he was possessed of disproportionate money/assets to his known sources of income. He was served with a charge sheet containing two articles of charges. The allegations were denied by him and he submitted that
122
it is out of this agricultural income(from lands he owns) that he has been depositing amounts in the bank and has not committed any violation of service regulations or other offence which would attract disciplinary action against him. Besides appointing an enquiry officer to conduct a regular departmental enquiry, the High Court also appointed an Addl. Judge as Presenting Officer. Meanwhile, the appellant made an application for permission to engage a legal practitioner to assist him in the departmental enquiry but the same was declined by the High Court. The appellant however, participated in the enquiry and the enquiry officer submitted his report which returned the finding of guilt against the appellant.Disciplinary authority, after receiving the said report, issued show cause notice to the appellant, to which the latter submitted a detailed reply. However, the authority decided that the stand taken by the appellant was not satisfactory and consequently, imposed the punishment of removal from service. The appeals preferred by the appellant against this order before the Governor and later, vide a Writ Petition in the High Court were both dismissed. Still dissatisfied with the judgment of the Court, a Letter Patent Appeal was filed which also met the same fate and was dismissed by the Division Bench of the Madhya Pradesh High Court. The legality and correctness of this order was again challenged by the appellant in the present appeal filed at the Supreme Court under Article136 of the Constitution. Contentions: The challenge to the impugned order is, primarily, on two grounds. Firstly, the appellant had asked for assistance of a legal practitioner which had been unfairly denied to him. Secondly, the enquiry officer as well as the High Court have not appreciated the evidence in its proper perspective and has failed to accept plausible defence raised by the appellant in regard to deposit of money in the bank. Held: No merit was found in the appeal and the case was dismissed with an order as to costs. To deal with each of the contentions: Contention 1: The request of the appellant has been rightly rejected by the disciplinary authority. The appellant could have asked for appointment of any colleague whose assistance he wanted to take and who would have been as well qualified and experienced as the presenting officer. It will be entirely uncalled for that an Additional Judge should be termed as a legal practitioner and, therefore, vesting in the appellant a right to engage a legal practitioner or an advocate for defending him in the departmental proceedings. Furthermore, the appellant took no steps whatsoever to challenge the order of the Disciplinary Authority declining assistance of an advocate and on the contrary, he participated without any further protest in the 123
entire departmental enquiry and raised no objections. The Enquiry Officer conducted the proceedings in a just, fair manner and in accordance with rules and there is no challenge to that aspect of the matter. In the application, the appellant had stated "that the complainant neither has necessary experience nor the required skill to handle his defence in such circumstances." This statement ex facie is not correct. Charge against the appellant was not of a very complicated nature, which a person having qualification and experience of the appellant would not be able to defend. In these circumstances, it was held that no prejudice whatsoever has been caused to the interest of the delinquent officer. Contention 2: Coming to the other aspect of the case, that there is perversity in appreciation of the evidence in the impugned judgment under appeal, it is to be noticed that the finding of facts arrived at by the enquiry officer was not interfered with by the learned single Judge as well as the Division Bench of the Madhya Pradesh High Court, it is hardly permissible for this Court to disturb such findings of fact in exercise of its jurisdiction under Article 136 of the Constitution of India. Infact the appellant could have produced witnesses and supplemented his case with documentary evidence during the enquiry and in his reply filed. Non-examination of witnesses and non-production of necessary documents must lead to draw an adverse inference against the appellant. Moreover, the conduct of the appellant during the stages of enquiry by itself shows that the appellant has not approached the Court with clean hands and has not disclosed true facts which were known to him alone. In the departmental proceedings, he took incorrect defence contrary to his return and failed to discharge the onus placed upon him. It was expected of the appellant to disclose all true and correct information and documents in his power and possession before the Enquiry Officer. It was not required of him to with-hold relevant material and take such a defence which could not be substantiated during the course of departmental enquiry. Having failed to produce relevant documentary evidence as well as examine the witnesses, the appellant cannot argue that the Disciplinary Authority or the Courts have not appreciated the evidence in its correct perspective.
ShrimatiJamilabai Abdul Kadar v ShankarlalGulabchand and others (1975) 2 SCC 609 Bench: Justice Krishna Iyer Headnote of sorts - this case was a civil appeal filed before the Supreme Court. The essential question to be decided by the court was whether a pleader could enter into a compromise without the consent of the client. In this regard, does the fact that the pleader in question has not chosen to enrol himself under the Advocates Act have any bearing on his duties to consult his client.
124
Summary of the actual judgement – In 1964 the landlords (Respondents) brought an action for eviction against the tenants (Appellants) under the rent control laws in Maharashtra. The case was finally decided by the Court in 1965 and recorded a compromise entered into by the pleaderof the tenants stating that the tenants would give vacant possession of the property within 18 months. The tenant however wished to avoid eviction completely and after a series of “miscellaneous” suits approached the SC stating that he was not bound by a compromise entered into by his pleader without his authority. The counsel for the Appellant stated that the pleader had no authority to agree to this compromise especially because he did obtain consent as an advocate and he was a mere pleader. At the time of the actual compromise it was not the tenant but his agent who was present. The trial Court and the District Court both decided that the tenant had not given any specific instructions “not to compromise” and therefore there was nothing held against the pleader in these Courts. The HC therefore dismissed the suit in the same manner. There is no statutory provision directly addressing this issue. Section 29 of the Advocates Act provides for categories of legal professionals including pleaders, advocates, etc. The pleader in question was not registered under the Advocates Act but was registered under the Bombay Pleaders Act, 1920. However, pleaders who chose not to enrol under the new Advocates Act of 1961 will continue to enjoy the same rights as under the Bombay leaders Act. The Court stated that there is merit in the suggestion that even if a pleader does not get himself enrolled, their very eligibility to be enrolled entails the same statutory responsibilities towards client and court. This was substantiated by a reference to CPC Order III Rule 1 and Rule 4(1) which essentially state that a pleader may practice in any court. Thus furthering the argument that different categories of legal practitioners cannot be treated differently as far as their duties to their clients are concerned. The Court after examining several English decisions stated that the counsel had the general power to settle the dispute on his client’s behalf in order to protect the client’s interest. After examining decisions from various Indian Courts, the Court stated that a legal practitioner was not a mere agent of the client. The legal skill that the lawyer is expected to exhibit may be beyond the understanding of the client and it is for this reason that the lawyer has a power to act. Therefore in the absence of speaking instructions an advocate has the power to settle the suit in the interest of the client only if this is done bona fide, therefore safeguarding their power to act. This power is exceeded if the matter is not settled in good faith or if the lawyer has agreed to compromise matters that are extraneous to the suit. Thus, it was finally held that: The pleader has actual, though implied authority to enter into a compromise even without specific instructions, subject to two conditions – that he does so in good faith to protect the interests of his client and that he has if he had time and 125
opportunity he consulted his client. Thus, in this case, the Court felt that the pleader had acted with the adequate knowledge and encouragement of his client and there is no liability on his part.
Ram Bharosey Agarwal v Harswarup Maheshwari(1976) 3 SCC 435 Appellant Adv. Ram Bharose was engaged by respondent Har Swarup Maheshwari on behalf of his daughter to pursue her application against her husband Jai Narain. Case was decided in her favour and maintenance allowance granted. When order was put into execution Harswarup appointed another advocate to prosecute the execution application. Jai Narayans property attached and his father claimed that it’s his property. Application to that effect was alleged to have been filed by Ram Bharose(this is the first charge against appellant). And also, meanwhile Jai Narayan filed an application for reconsideration of maintenance order and examined 3 witnesses. Har swarup instituted case of defamation against these witnesses and appellant Ram Bharosey was engaged in those proceedings also (second charge against appellant). The third allegation is that appellant wrote a letter to another advocate in Allahabad HC to get an appeal dismissed even though there was no instruction from the client and it was detrimental to the client. Bar council of UP framed 4 issues including the above mentioned 3 and a new issue of whether appellant was guilty of professional misconduct. Bar Council held that appellant is guilty of professional misconduct suspended him from practice for 2 years and awarded Rs. 100 as cost to complainant without giving any proper reason in support of its findings and also all issues were examined together even though they raised different questions. Appeal (by bharosey) went to BCI. BCI affirmed the findings of U.P Bar Council regarding the writing of letter but held that appellant is not guilty of misconduct with respect to other charges. Suspension got reduced to 3 months and cost of Rs. 100 to be paid to complainant. Appeal to SC. Arguments by appellant counsel Mr. Sen were; the letter was not conclusively proved to be written by appellant (expert did not compare the letter with his handwriting), no opportunity was given to cross examine a witness who was examined by disciplinary committee with respect to allegations against appellant (expert was supposed to compare the signature on the letter allegedly written by Barosey with the one written to this witness), and finally, he 126
contended that according to S. 9 of Advocates act the number of members of disciplinary committee is 3 and on the date on which appellants defence was closed and arguments were taken, the committee had only 2 members. The respondent’s council argued that according to S.13 of the act no act done by the Bar Council or committee could be called in question on the ground merely of the existence of vacancy in, or any defect in the constitution of the council or committees as the case maybe. SC Decision: Court looked into these contentions and said that there is justification for the argument of appellant’s counsel that serious illegality was committed by bar council of U.P. Regarding the third issue involving S.9 and S.13 court said that section 13 is inapplicable to present controversy, since it cannot be said that there was any vacancy. It is nobody’s case that any of the three members of the committee ceased to be members during the course of proceedings or that there was any defect in constitution of committee or that it was permissible to function with two members only. Court said that these illegalities seriously prejudiced the appellants defence and court observed that it is surprising that such illegalities have been committed and court also observed that it was difficult to overlook the contention of appellant’s council that this happened because of the reason that bar council was “hot bed of politic”. Appeal allowed.BCI order dismissed.
127
