PROFESSIONAL ETHICS
No |
Particulars |
|
UNIT - I |
1 |
The Legal Professional and its responsibilities |
2 |
The equipment of the Lawyer |
3 |
Conduct in court |
4 |
Professional conduct in general |
5 |
Privileges of a lawyer |
6 |
Salient features of the Advocates Act 1961 |
|
UNIT - II |
1 |
Duty to the court |
2 |
Duty to the Profession |
3 |
Duty to the opponent |
4 |
Duty to the client |
5 |
Duty to the slf |
6 |
Duty to the public and the state |
|
UNIT - III |
7 |
Contempt of court Act - 1972 |
8 |
NB Mirzan V/s the disciplinary committee of Bar Council of Maharashtra and another AIR 1972 SC 46 |
9 |
Bar council of Maharashtra Vs Mv Dabholkar etc AIR 1976 SC 242 |
10 |
VC Rangadurai v D Gopalan and other AIR 1979 SC 201 |
11 |
Chandrashekar soni V Bar Council of Rajasthan and other AIR 1983 SC 1012 |
12 |
In Re Vinay Chandra Mishra 1995 (vol-I) IBR 118 |
13 |
Supreme court Bar Association VS union of India, AIR 1998 SC 1895 |
|
UNIT - IV |
1 |
D C. Appeal No : 16/93, 1998, (vol-1) IBR 135 |
2 |
BCI Tr Case No; 40 / 91, 1998, (vol-1) IBR 139 |
3 |
D C. Appeal No : 8/94, 1998, (vol-1) IBR 153 |
4 |
D C. Appeal No : 20/94, 1997, (vol-3 & 4) IBR 193 |
5 |
BCI Tr Case No 76/95, 1997, (vol 3 & 4) IBR 201 |
6 |
D.C. Appeal No : 43/96, 1997, (vol 3 & 4) IBR 207 |
7 |
D C Appeal No : 18/91, 1997, (vol - 1 & 2) IBR 271 |
8 |
D C Appeal No ; 24 / 90, 1996 (vol-1) IBR 135 |
9 |
D C Appeal No : 19/93, 1996 (vol-1) IBR 152 |
10 |
BCI Tr case No; 104/90, 1996 (vol-1) IBR 155 |
|
UNIT - V |
1 |
Need for maintenance of accounts |
2 |
Books of A/c's that need to be maintain |
3 |
Cash Book |
4 |
Journal and Ledger |
5 |
Elementary aspects of book keeping meaning |
6 |
Object |
7 |
Journal |
8 |
Double entry system |
9 |
Closing of Accounts |
10 |
The cash and bulk transaction |
11 |
The cash Book |
12 |
Journal proper especially with reference to Client's accounts |
13 |
Ledger |
14 |
Trial balance and final accounts |
15 |
Commercial mathematics |
UNIT-I
1.1 THE LEGAL PROFESSION AND ITS RESPONSIBILITIES
The legal profession plays an important role in the administration of justice. The lawyer assists the Court in arriving at a correct judgment. The lawyer collects legal materials relating to the case and thereby helps the Court or Judge to arrive at a correct judgment. Without the assistance of the lawyer it would be a superhuman task for the Judge to arrive at a satisfactory judgment.
Actually the law is very complicated. The language of Acts and Regulations is often found to be very complicated and confusing and not easy to be understood. The citizens of the country require the advice of the advocate to understand the exact meaning of the provisions of the Act and Regulations.
The lawyers are not puppets compelled to obey the dictate of their clients, where matters of good faith and honourable conduct are concerned. They are responsible to the Court for the fair and honest conduct of a case. They are agents, not of man who pays them but are acting in the administration of justice.
It has rightly been observed that a sound system of the administration of justice should possess three ingredients, namely a well-planned body of laws based on wise concepts of social justice, a judicial hierarchy comprised of the Bench and the Bar, learned in the law and inspired by high principles of professional conduct and existence of suitable generation to ensure fair trial.
The lawyers play important role in the maintenance of peace and order in the society. The peace and order, on doubt, are necessary for the very existence of the society. Advocates are every day defending rights and liberties of citizens against all violators of the law.
The lawyers play important role in the law reform also. "By reason of the experience gained in the daily application and interpretation of laws, lawyers are best aware of the imperfection, of the legal system and constitute the most competent class of men to advise on law reform and to promote popular enthusiasm and support for it. The most difficult part of the process of legislation in the drafting of its provisions and no one is better fitted to give guidance on this than the lawyers".
Thus, the legal profession is a profession of great honour. It has been created not for private gain but for public good. It is not a money-making occupation but a branch of administration of justice. Since it is not a business, a lawyer cannot solicit work or advertise either directly or indirectly. An advocate is an officer of the Court and required to maintain towards the Court a respectful attitude bearing in mind that the dignity of the judicial office is essential for the survival of the society. The Supreme Court has rightly observed that the legal profession is a partner with the judiciary in the administration of justice.
1.2 THE EQUIPMENT OF THE LAWYERS
Justice Abbot Parry has mentioned seven lamps of advocacy - honesty, courage, industry, wit, eloquence, judgment and fellowship. An advocate should be honest and a man of integrity and character. An advocate who is straightforward and possesses these three jewels is appreciated by the Court and the client alike. Mannerism also plays important role in getting success in the legal profession. He should be respectful to the court and try to win the confidence of the judge. He should not interrupt the judge when he speaks. He should take time to consider the question put by the judge to him in all aspects and then give reply. Dealing with the client also plays important role in getting success in the legal profession. Soft, decent and fair dealings with the clients make a lawyer popular amongst the clients.
The preparation and presentation of a case is an art which is attained by practice. In the preparation on of the case the most important facts should be selected and they should be remembered with accuracy. The events should be arranged and noted down in the order of dates. The grounds or arguments in favour of the opponent should also be carefully studied and the counter-arguments should be prepared systematically. The relevant documents should also be studied carefully. After study of the facts of the case and relevant documents there should be research on the law on the matter. Actually precedent plays important role in winning the case but it should be cited after stating and explaining the relevant statutory provisions. It is better to state the relevant statutory provisions and thereafter give reasons including the judicial decisions in support of the interpretation adopted.
For success in legal profession an advocate must be fully aware of drafting the plaint and written statements and of cross-examining the witnesses and arguing the case. For this purpose the provisions of the C.P.C., Cr.P.C. and Evidence Act should be studied thoroughly and carefully. For the preparation of arguments the advocate is required to have full knowledge of the pleadings of the parties and also of the contents of the documents produced by the parties. He should also be conversant with the admissions and denial of the facts and the evidence given by the witnesses. In arguing a case strongest points should be emphasized and the weak point, as far as possible, should not be raised in such a way as to attract the court. The strongest point should be argued till the court appears to have grasped them. Even the strong points of the opponent should be gathered and he should prepare the argument in such a way as to meet them a prove them as insignificant in relation to the decision under appeal. The weak points in the opponent case should be emphasized much so as to prove that the weakness is of such a nature that in spite of everything else the judgment under appeal cannot be sustained.
The maintenance of library, good staff and knowledge of the use of computer, etc. are also helpful for the success in the advocacy profession. An advocate should maintain good chamber and office so that he may have reasonable contact with his clients. He should be very quick in communicating relevant informations to his clients.
1.3 ADVOCATE ACT 1961
1) Senior Advocates and other advocates
Section 16 provides that there shall be two classes of advocates, namely, senior advocates and other advocates. An advocate may, with his consent, be designated as senior advocate if the Supreme Court or a High Court is of opinion that by virtue of his ability, standing at the Bar or special knowledge or experience in law, he is deserving of such distinction. Senior advocates shall, in the matter of their practice, be subject to such restrictions as the Bar Council of India may, in the interest of legal profession, prescribe. An advocate of the Supreme Court who was a senior advocate of that Court immediately before the appointed day shall, for this purpose be deemed to be a senior advocate:
Chapter I of Part VI of the Rules of Bar Council of India makes provisions in relation to the senior advocates. The provisions of these rules may be summed up as follows:
In the matter of their practice, a senior advocate shall not file a Vakalatnama or act in any court or Tribunal or before any person or authority mentioned in Section 30 of the Advocates Act.
The rule provides further that a senior advocate shall not appear without an advocate on record in the Supreme Court or without an advocate in Part II of the State Roll in any Court or Tribunal or before any person or other authorities mentioned in Section 30 of the Act.
A senior advocate shall not accept instructions to draft pleading or affidavits, advise on evidence or to do any drafting work of an analogous kind in any Court or Tribunal or before any person or other authority mentioned in Section 30 of the Act or undertake conveyancing work of any kind wharsoever.
This restriction shall not extend to settle any such matter as aforeside in consultation with an advocate in Part II of the State Roll.
The Rule provides further that a senior advocate be free to make concessions or give undertaking in the course arguments on behalf of his clients on instructions from the junior advocates. A senior advocate may in recognition of the services rendered by an advocate in Part II of the State Roll appearing in any matter pay him a fee which he considers reasonable.
The rule provides that a senior advocate who had acted as an advocate (junior) in a case cannot, after he has been designated as a senior advocate, advise on grounds of appeal in a court of appeal or in the Supreme Court, except with an advocate as aforesaid.
It has also been provided that a senior advocate shall not accept directly from a client any brief or instructions to appear in any Court or Tribunal or before any person or other authority in India.
2) ADMISSION AND ENROLMENT
a) Persons who may be admitted as advocate on a State roll (Section 24)
Section 24 of the Advocates Act makes provisions in respect of the persons who may be admitted as advocate on a State roll. Sub-section (1) of Section 24 provides that subject to the provisions of the Advocates Act and the rules made thereunder, a person shall be qualified to be admitted as an advocate on a State roll, if he fulfils the following conditions, namely
(i) he is a citizen of India:
Provided that subject to the other provisions contained in this Act a national of any other country may be admitted as an advocate on a State roll, if citizens of India, duty qualified, are permitted to practise law in that other country:
(ii) he has completed the age of twenty-one years;
(iii) he has obtained a degree of law.
b) Disqualification for enrolment (Section 24)
Section 24-A(1) makes provision in respect of the disqualification for enrolment as an advocate it provides that no person shall be admitted as on advocate on a state roll.
a) if he is convicted of an offence involving moral turpitude;
b) if he is convicted of an offence under the provisions of the Untouchability (Offences) Act, 1955 (now Protection of Civil Rights Act, 1955):
Provided that the disqualification for enrolment as aforesaid shall cease to have effect after a period of two years has elapsed since his release or dismissed or, as the case may be, removed.
Section 24-A(2) makes it clear that nothing contained in sub-section (1) of this section shall apply to a person who having been found guilty is dealt with under the provisions of the Probation of Offenders Act, 1958.
c) Section 25, 26, 26-A,22,23
(i) Authority to whom application for enrolment may be made (Section 25)
Section 25 of the Advocates Act provides that an application of admission as an advocate shall be made in the prescribed from to the State Bar Council within whose jurisdiction the applicant proposes to practice.
(ii) Disposal of applications for admission as an advocate (Section 26)
Section 26 of the Advocates Act provides that a State Bar Council shall refer every application for admission as an advocate to its enrolment committee and subject to any direction that may be gives in writing by the State Bar Council in this behalf, such committee shall dispose of the application in the prescribed manner.
(iii) Removal of names from roll (Section 26-A)
According to section 26-A of the Advocates Act, a State Bar Council may remove, from the State roll, the name of any advocate who is dead or from whom a request has been received to that effect.
(iv) Certificate of enrolment (Section 22)
Section 22 of the Advocate Act provides that there shall be issued a certificate of enrolment in the prescribed form by the State Bar Council to every person whose name is entered in the roll of advocates maintained by it under this Act.
(v) Rights of pre-audience (Section 23)
Section 23 of the Act makes provision in respect of pre-audience.
1) The Attorney-General of India shall have pre-audience over all object advocates.
2) Subject to the provisions of Sub-section (1) stated above the Solicitor-General of India shall have pre-audience over all other advocates.
3) Subject to the Provisions of sub-section (1) and (2), the Additional Solicitor- General of India shall have pre-audience over all other advocates.
(3-A) Subject to the provisions of sub-section (1), (2) and (3), the second Additional Solicitor- General of India shall have pre-audience over all other advocates.
4) Subject to the provisions of sub-section (1), (2), (3)and (3-A), (stated above the Advocate General of the State shall have pre-audience over all other advocates and the right of pre-audience among Advocate-General inter se shall be determined by their respective seniority.
5) Subject as aforesaid
i) Senior advocates shall have pre-audience over other advocates, and
ii) the right of pre-audience of senior advocates inter se and other advocates inter se shall be determined by their respective seniority.
3) Privileges of a lawyer
Rights of advocates
Section 29 of the Advocates Act, 1961, makes it clear that advocates are the only recognized class of persons who are entitled to practise law. According to Section 29 subject to the provisions of the Advocates Act and rules made thereunder, there shall, as from the appointed day, by only one class of persons entitled to practice the profession of law, namely advocates.
Section 30 of the Advocates Act provides that subject to the provisions of this Act, every advocate whose name is entered in the State roll shall be entitled as of right to practice throughout the territory to which this Act extends
i) in all Courts including the Supreme Court;
ii) before any Tribunal or person legally authorised to take evidence; and
iii) before any other authority of person before whom such advocate is by or under any law for the time being in force entitled to practice.
Section 33 of the Advocates Act provides that except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practice in any Court or before any authority or person unless he is enrolled as an advocate under this Act;
However, section 32 of the Advocates Act make it clear that notwithstanding anything contained in this Chapter (Sections 29 to 34) any Court authority or person may permit any person, not enrolled as an advocate under this Act to appear before it or him in any particular case.
Section 34 of the Advocates Act empowers the High Court to make rules laying down the conditions subject to which an advocate shall be permitted to practice in the High Court and the Courts subordinate thereto.
4) State Bar Councils
The Advocates Act provides for the constitution of two types of Bar Council - State Bar Councils and Bar Council of India. Section 3 of the Act provides for the establishment of State Bar Councils and Section 4 of the Act provides for the establishment of a Bar Council of India. The organization, powers and functions of the Bar Councils may be discussed under the following headings:
1) Establishment and Organisation
Section 3 of the Advocates Act provides that there shall be a Bar Council -
I. for each of the States of Andhra Pradesh, Bihar, Gujarat, Jammu and Kashmir, Madhya Pradesh, Karnataka, Orissa, Rajasthan and Uttar Pradesh to be Known as the Bar Council of that State.
II. for the States of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura to be known as the Bar Council of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh;
III. for the States of Kerala and the Union territory of Laccadive, Minicoy and Amindivi Islands, to be known as the Bar Council of Kerala;
IV. for the State of Tamil Nadu and the Union Territory of Pondicherry to be known as the Bar Council of Madras;
V. for the States of Maharashtra and Goa and the Union Territories of Dadra and Nagar Haveli and Daman and Diu to be known as the Bar Council of Maharashtra and Goa;
VI. for the State of Punjab and Haryana and the Union Territory of Chandigarh to be known as the Bar Council of Punjab and Haryana;
VII. for the State of Himachal Pradesh, to be known as the bar council of Himachal Pradesh;
VIII. for the state of West Bengal and Union Territories of Andaman and Nicobar Islands, to be known as the Bar Council of West Bengal, and
IX. for the Union Territory of Delhi, to be known as the Bar Council of Delhi.
Section 3 of the Act makes provisions in respect of the organization of the bar Council. It provides that a State Bar Council shall consist of the following members, namely-
a) in the case of the State Bar Council of Delhi, the Additional Solicitor-General of India, ex officio, in the case of the State Bar Council of Assam, Nagaland, Meghalaya, Manipur and Tripura, the Advocate-General of each of the States of Assam, Manipur, Meghalaya, Nagaland and Tripura, ex officio, in the case of the State Bar Council of Punjab and Haryana the Advocate-General of each of the State of Punjab and Haryana, ex officio and in the case of any other State Bar Council, the Advocate-General of the State, ex officio;
b) in the case of a State Bar Council with an electorate not exceeding five thousand, fifteen members in the case of State Bar Council with an electorate exceeding five thousand but not exceeding ten thousand, twenty members and in the case of a State Bar Council with an electorate exceeding ten thousand, twenty-five members, elected in accordance with the system of proportional representation by means of the single transferable vote from amongst advocates on the electoral roll of the State Bar Council.
2) Powers and Functions of the State bar Council
Section 6 of the Advocates Act makes provisions in respect of the functions of the State bar Council it provides that the functions of the State Bar Council shall be-
1. to admit persons as advocates on its rolls;
2. to prepare and maintain such roll;
3. to entertain and determine cases of misconduct against advocates on its roll;
4. to safeguard the rights, privileges and interests of advocates on its roll;
5. to promote and support law reform;
ee) to conduct seminars and organize talk on legal topics by eminent jurists
and publish journals and papers of legal interest;
eee) to organize legal aid to the poor in the prescribed manner;
6. to manage and invest the funds of the Bar Council;
7. to provide for the election of its members;
8. to perform all other functions conferred on it by or under this Act;
9. to do all other things necessary for discharging the aforesaid functions.
There shall be issued a certificate of enrolment in the prescribed form by the State Bar Council to every person whose name is entered in the roll of advocates maintained by it under this Act. Every person whose name is so entered in the State roll shall notify any change in the place of his permanent residence to the State Bar Council concerned within 90 days of such change.
In addition to above, as sub-section (2) of Section 6 provides, a State Bar Council may constitute one or more funds in the prescribed manner for the purpose of - (a) giving financial assistance to organise welfare schemes for the indigent, disabled or other advocates; (b) giving legal aid or advice in accordance with the rules made in this behalf. State Bar Council may receive any grants donations, gifts or benefactions for all or any of these purposes and it shall be credited to the appropriate fund constituted for this purpose under this sub-section.
Section 48 of the Advocates Act makes provision in respect of indemnity against the legal proceedings. It provides that no suit or other legal proceedings shall lie against any Bar Council or any committee thereof or a member of a Bar Council or any committee thereof for any act in good faith done or intended to be done in pursuance of the provisions of this Act or of any rules made thereunder.
5) Bar Council of India
1) Organisation
Section 4(1) of the Advocates Act provides that there shall be a Bar Council for the territories to which this Act extends to be known as the Bar Council of India which shall consist of the following members, namely-
a) the Attorney-General of India, ex officio;
b) the Solicitor-General of India, ex officio;
c) one member elected by each State bar Council from amongst its members.
2) Powers and Functions
Bar Council of India is a body corporate having perpetual seccession and a common seal with power to acquire and hold property both movable and immovable and to contract and may, by the name by which it is known, sue and be sued. Section 13 of the Act makes it clear that no act done by a Bar Council or Committee thereof shall be called in question on the ground merely of the existence of any vacancy in or any defect in the constitution of, the Council or Committee, as the case may be.
Section 7 of the Advocates Act provides that the function of the Bar Council of India shall be-
(i) to lay down standards of professional conduct and etiquette for advocates;
(ii) to lay down the procedure to be followed by its disciplinary committee and the disciplinary committee of each State Bar Council;
(iii) to safeguard the rights, privileges and interests of advocates;
(iv) to promote and support law reform;
(v) to deal with and dispose of any matter arising under this act which may be referred to it by a State Bar Council;
(vi) to exercise general supervision and control over State Bar Council;
(vii) to promote legal education and to lay down standards of such education a in consultation with the Universities in India imparting such education and the State Bar Council;
(viii) to recognize Universities whose degree in law shall be a qualification for enrolment as an advocate and for that purpose to visit and inspect Universities or cause the State Bar Councils of visit and inspect Universities in accordance with such directions as it may give in this behalf;
(ix) to conduct seminars and organize talk on legal topics by eminent jurists and publish journals and papers of legal interest;
(x) to organise legal aid to the poor in the prescribed manner;
(xi) to recognise on a reciprocal basis foreign qualifications in law obtained outside India for the purpose of admission as an advocate under this Act;
(xii) to manage and invest the funds of the Bar Council;
(xiii) to provide for the election of its members;
(xiv) to perform all other functions conferred on it by or under this Act;
(xv) to do all other things necessary for discharging the aforesaid functions.
Section 7-A of the Advocates Act makes it clear that the Bar Council of India may become a member of international legal bodies, such as, the International Bar Association or the International Legal Aid Association, contribute such sums as it thinks fit to such bodies by way of subscription or otherwise and authorize expenditure on the participation of its representatives in any international legal conference or seminar.
Section 7(2) of the Advocates Act provides that the Bar Council of India may constitute one or more funds in the prescribed manner for the purpose of -
a) giving financial assistance to organize welfare schemes for indigent, disabled or other advocates;
b) giving legal aid or advice in accordance with the rules made in this behalf;
c) establishing law libraries.
It may receive any grants, donations, gifts or benefactions for all or any of the purposes specified above such grants, donations, etc., shall be credited to the appropriate fund or funds constituted under this sub-section.
6) Punishment for professional or other misconduct
1. Professional or other Misconduct - Meaning and Ambit.
Section 35 of the Advocates Act provides in respect of punishment for professional or other misconduct. It provides that 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. Section 35 empowers the disciplinary committee to reprimand the advocate or suspend the advocate from practice for such period as it may deem fit or remove the name of the advocate from the State roll of advocates. However, an appeal against the order of the disciplinary committee may be preferred, to the Bar Councilof India and thereafter to the Supreme Court against the order of the bar Council of India. Section 35 of the Advocates Act makes it clear that an advocate may be punished not only for professional misconduct but also for other misconduct.
The term "misconduct" has been defined in Black's Dictionary as a transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, unlawful behavior, willful in character, improper of wrong behavior. Its synonyms are misdemeanor, impropriety, mismanagement, offence but not negligence or carelessness.
2. The body or authority empowered to punish for professional or other misconduct.
I. State Bar Council and its disciplinary committee
1) Organisation- Section 35 of the Advocates Act makes it clear that 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. It is one of the functions of the State bar Council to entertain and determine the cases of misconduct against the advocates on its roll. Section 9 of the Act requires the State Bar Council to constitute one or more disciplinary committees. Each of such committee is required to consist of three persons of whom two shall be persons elected by the Council from amongst its members and the other shall be a person co-opted by the Council from amongst advocates who possess the qualifications specified in the proviso to sub-section (2) of Section 3 and who are not members of the Council and the seniormost advocate amongst the members of a disciplinary committee shall be the chairman thereof.
2) Initiation and procedure-The disciplinary committee is required to make inquiries in the cases referred to it by the State bar Council. Section 35 provides that 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.
From this section it is clear that the Bar Council can register cases suomotu.
The State Bar Council has been empowered to 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. The State Bar Council can do so either on its own motion or on application made to it by any person interested.
Where a case is referred to the disciplinary committee for inquiry and disposal, the committee is required to fix a date for the hearing of the case and cause a notice thereof to be given to the advocate concerned and the Advocate-General of the State. Where such notice is issued to the Advocate-General, the Advocate-General may appear before the disciplinary committee of the State Bar Council either in person or through any advocate appearing on his behalf.
3) Powers- Section 35 provides that after giving the advocate concerned and the Advocate-General an opportunity of being heard, the disciplinary committee of a State Bar Council may make any of the following orders:-
a) dismiss the complaint or where the proceedings were initiated at the instance of the State 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. It is to be noted that where an advocate is suspended from practice under the aforesaid clause (c), he shall, during the period of suspension, be debarred from practicing in any Court or before any authority or person in India.
Where an order is made reprimanding or suspending an advocate, a record of the punishment shall be entered against his name in the State roll and where an order is made removing an advocate from practice, his name shall be struck off the State roll. It has also been made clear that where any advocate is suspended or removed from practice, the certificate granted to him under Section 22 in respect of his enrolment shall be recalled.
Section 42 of the Advocates Act is an important section which deals with the power of the disciplinary committee. It provides that the disciplinary committee of a Bar Council shall have the same powers as are vested in a civil court under the code of Civil Procedure in respect of the following matters-
a) summoning and enforcing the attendance of any person and examining him on oath;
b) requiring discovery and production of any documents;
c) receiving evidence on affidavit;
d) requiring any public record or copies thereof from any court or office;
e) issuing commissions for the examination of witnesses or documents
f) any other matter which may be prescribed:
Provided that no such disciplinary committee shall have the right to require the attendance of -
(i) any presiding officer of a Court except with the previous sanction of the High Court to which such court is subordinate;
(ii) any officer of a revenue court except with the previous sanction of the State Government.
II. Bar Council of India - its disciplinary committee
(1) Organisation- Section 36 of the Advocates Act empowers the Bar Council of India to refer, in certain circumstances, the case for disposal to its disciplinary committee.
Section 9 provides that a Bar Council shall constitute one or more disciplinary committees, each of which shall consist of three persons of whom two shall be persons elected by the Council from amongst its members and the other shall be a person elected by the Council from amongst advocates who possess the qualifications specified in the proviso to sub-section (2) of Section 3 and who are not members of the Council and the seniormost advocate amongst the members of a disciplinary committee shall be the Chairman thereof.
(2) Initiation and Procedure- Sub- section (1) of the Section 36 provides that where on receipt of a complaint or otherwise the Bar Council of India has reason to believe that any advocate whose name is not entered on any State roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its Disciplinary Committee. Sub-section (2) of section 36 provides that the Disciplinary Committee of the Bar Council of India may either on its own motion or on a report by any State Bar Council or on an application made to it by any person interested, withdraw for inquiry before itself any proceedings for disciplinary action against any advocate pending before the disciplinary committee of any State Bar Council and dispose of the same.
(3) Powers- Section 42 deals with the powers of the disciplinary committee of a Bar Council. The provisions of Section 42 have already been stated in the Chapter in the context of the powers of the disciplinary committee of the State Bar Council. Section 42-A makes it clear that the provisions of section 42 shall, so far as may be, apply in relation to the disciplinary committee of the Bar Council of India.
From Section 43 it becomes clear that the disciplinary committee of the Bar Council of India may make such order as to the costs of any proceedings before it as it may drew fit and any such order shall be executable as if it were an order of the Supreme Court.
3. Remedies against the order of punishment
Section 35 empowers the disciplinary committee of the State Bar Council to punish an advocate for the professional or other misconduct. Section 36 empowers the disciplinary committee of the Bar Council of India to punish an advocate for the professional or other misconduct. The Advocate Act provides remedies against the order of punishment. These remedies may be explained under the following headings.
1. Review
Section 44 of the Advocates Act provides that the disciplinary committee of a bar Council may of its own motion or otherwise review any order, within 60 days of the date of order passed by it under this chapter. However, no such order of review of the disciplinary committee of a State Bar Council shall have effect, unless it has been approved by the Bar Council of India.
Section 48-AA makes it clear that the Bar Council of India or any of its committees, other than its disciplinary committee, may on its own motion or otherwise, review any order, within 60 days of the date of that order, passed by it under the Advocates Act.
2. Appeal
In case the order of punishment has been passed by the disciplinary committee of the State Bar Council, an appeal may be preferred to the Bar Council of India. Section 37 of the Advocates Act provides that any person aggrieved by an order of the disciplinary committee of a State Bar Council. If the Bar Council of India approves the order of the State Bar Council the disciplinary committees of the State Bar Council shall communicate the order to the parties. If the Bar Council of India does not approve it, the disciplinary committee of the State Bar Council shall make its order dismissing the application and inform the parties. The decision of the disciplinary committee of the Bar Council of India on an application for review of its order shall be communicated to the parties made under Section 35 or the Advocate-General of the States may, within 60 days of the date of the communication of the order to him, prefer an appeal of the Bar Council of India. Every such appeal shall be heard by the disciplinary committee of the Bar Council of India which may pass such order including as order varying the punishment awarded by the disciplinary committee of the State Bar Council thereon as it deems fit. It has been made clear 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.
a) Appeal to the Supreme Court- Section 38 of the Advocates Act provides that any person aggrieved by an order made by the disciplinary committee of the Bar Council of India under Section 36 or Section 37 or the Attorney-General of India or the Advocate-General of the State concerned, as the case may be, may within 60 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 including an order varying the punishment awarded by the disciplinary committee of the Bar Council of India shall there on as it deems fit. However, no order of the Bar Council of Incia be varied by the Supreme Court as so as to prejudicially affect the person aggrieved without giving him a reasonable opportunity of being heard.
Thus, an appeal against the order passed by the disciplinary committee may be preferred to the Bar Council of India and the appeal against the order of the Bar Council of India may be preferred to the Supreme Court.
UNIT - II
2.1 INTRODUCTION:-
An advocate shall, at all times, comfort himself in a manner befitting his status as an officer of the court, a privileged member of the community; and a gentleman, bearing in mind that what may be lawful and a moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be improper for an advocate. Without prejudice to the generality of the foregoing obligation, an advocate shall fearlessly uphold the interests of his client, and in his conduct conform to the rules hereinafter mentioned both in letter and in spirit. The rules hereinafter mentioned contain canons of conduct and etiquette adopted as general guides; yet the specific mention thereof shall not be construed as a denial of the existence of other equally imperative though not specifically mentioned.
2.2 Section I - Duty to the Court
1. An advocate shall, during the presentation of his case and while otherwise acting before a court, conduct himself with dignity and self-respect. He shall not be servile and whenever there is proper ground for serious complaint against a judicial officer, it shall be his right and duty to submit his grievance to proper authorities.
2. An advocate shall maintain towards the courts a respectful attitude, bearing in mind that the dignity of the judicial office is essential for the survival of a free community.
3. An advocate shall not influence the decision of a court by any illegal or improper means. Private communications with a judge relating to a pending case are forbidden.
4. An advocate shall use his best efforts to restrain and prevent his client from resorting to sharp or unfair practices or from doing anything in relation to the court, opposing counsel or parties which the Advocate himself ought not to do. An Advocate shall represent the client who persists in such improper conduct. He shall not consider himself a mere mouth - piece of the client and shall exercise his own judgment in the use of restrained language in correspondence, avoiding scurrilous attacks in pleadings, and using intemperate language during arguments in court.
5. An advocate shall appear in court at all times only in the prescribed dress, and his appearance shall always be presentable.
6. An advocate shall not enter appearance, act, plead or practice in any way before a court, tribunal or Authority mentioned in section 30 of the Act, if the sole of any member thereof is related to the Advocate as father, grandfather, son grandson, uncle, brother, nephew, first cousin, husband, wife, mother, daughter, sister, aunt, niece, father-in-law, mother-in-law, son-in-law, brother-in-law, daughter-in-law or sister-in-law.
For the purposes of this rule, court shall mean a court, Bench a tribunal in which above mentioned relation of the Advocate is a judge, member or the Presiding Officer.
7. An advocate shall not wear bands or gown in public places other than in Courts except on such ceremonial occasions and at such places as the Bar Council of India or the court may prescribe.
8. An advocate shall not appear in or before any court or tribunal or any other authority for or against an organisation or an institution, society or corporation, if he is a member of the Executive Committee of such organisation or institution or society or corporation. "Executive Committee", by whatever name it may be called, shall include any Committee or body of persons which, for the time being, is vested with the general management of the affairs of the organisation or institution, society or corporation:
Provided that this rule shall not apply to such a member appearing as amicus curiae or without a fee on behalf of a Bar Council, Incorporated Law Society or a Bar Association.
9. An Advocate should not act or plead in any manner in which he is himself peculiarly interested.
2.3 Section II - Duty to the Client
1. 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.
2. An advocate shall not ordinarily withdraw from engagements, once accepted, without sufficient cause and unless reasonable and sufficient notice is given to the client. Upon his withdrawal from a case, he shall refund such part of the fee as has not been earned.
3. 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.
4. An advocate shall, at the commencement of his engagement and during the continuance thereof, make all such full and frank disclosures to his client relating to his connection with the parties and any interest in or about the controversy as are likely to affect his client's judgment in either engaging him or continuing the engagement.
5. It shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and honourable means without regard to any unpleasant consequences to himself or any other. He shall defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused, bearing in mind that his loyalty is to the law which requires that no man should be convicted without adequate evidence.
6. An advocate appearing for the prosecution of a criminal trial shall so conduct the prosecution that it does not lead to conviction of the innocent. The suppression of material capable of establishing the innocence of the accused shall be scrupulously avoided.
7. An advocate shall not, directly or indirectly, commit a breach of the obligations imposed by section 126 of the Indian Evidence Act.
8. An advocate shall not, at any time, be a party to fomenting litigation.
9. An advocate shall not act on the instructions of any person other than his client or his authorised agent.
10. An advocate shall not stipulate for a fee contingent on the results of litigation or agree to share the proceeds thereof.
11. An advocate shall not, buy or traffic in or stipulate for or agree to receive any share or interest in any actionable claim. Nothing in this rule shall apply to stock, shares and debentures or government securities, or to any instruments which are, for the time being, by law or custom, negotiable or to any mercantile document of title to goods.
12. An advocate shall not, directly or indirectly, bid for or purchase, either in his own name or in any other name, for his own benefit or for the benefit of any other person, any property sold in the executing of decree or order in any suit, appeal or other proceeding in which he was in any way professionally engaged. This prohibition, however, does not prevent an advocate from bidding for or purchasing for his client any property which his client may himself legally bid for or purchase, provided the advocate is expressly authorized in writing in this behalf.
13. An advocate shall not adjust fee payable to him by his client against his own personal liability to the client, which liability does not arise in the course of his employment as an advocate.
14. An advocate shall not do anything whereby he abuses or takes advantage of the confidence reposed in him by his client.
15. An advocate should keep accounts of the client's money entrusted to him, and the accounts should show the amounts received from the client or on his behalf, the expenses incurred for him and the debits made on account of fees with respective dates and all other necessary particulars.
16. Where moneys are received from or on account of a client, the entries in the accounts should contain a reference as to whether the amounts have been received for fees or expenses, and during the course of the proceedings, no advocate shall, except with the consent in writing of the client concerned, be at liberty to divert any portion of the expenses towards fees.
17. Where any amount is received or given to him on behalf of his client, the fact of such receipt must be intimated to the client, as early as possible.
18. After the termination of the proceeding, the advocate shall be at liberty to appropriate towards the settled fee due to him, any sum remaining unexpended out of the amount paid or sent to him for expenses, or any amount that has come into his hands in that proceeding.
19. Where the fee has been left unsettled, the advocate shall be entitled to deduct, out of any moneys of the client remaining in his hands, at the termination of the proceeding for which he had been engaged, the fee payable under the rules of the Court, in force for the time being, or by then settled and the balance, if any, shall be refunded to the client.
20. A copy of the client's account shall be furnished to him on demand provided the necessary copying charge is paid.
21. An advocate shall not enter into arrangements whereby funds in his hands are converted into loans.
22. An advocate shall not lend money to his client for the purpose of any action or legal proceedings in which he is engaged by such client.
Explanation - An advocate shall not be held guilty for a breach of this rule, if in the course a pending suit or proceeding, and without any arrangement with the client in respect of the same, the advocate feels compelled by reason of the rule of the court to make a payment to the court on account of the client for the progress of the suit or proceeding.
23. An advocate who has, at any time, advised in connection with the institution of a suit, appeal or other matter or has drawn pleadings, or acted for a party, shall not act, appear or plead for the opposite party.
2.4 Duty to Opponent
1. An advocate shall not in any way communicate or negotiate upon the subject-matter of controversy with any party represented by an advocate except through that advocate.
2. An advocate shall do his best to carry out all legitimate promises made to the opposite party even though not reduced to writing or enforceable under the rules of the court.
2.5 Section IV - Duty to Colleagues
1. An advocate shall not solicit work or advertise, either directly or indirectly, whether by circulars, advertisements, touts, personal communications, interviews not warranted by personal relations, furnishing or inspiring newspaper comments or producing his photograph to be published in connection with cases in which he has been engaged or concerned. His sign-board or nameplate should be reasonable size. The sign-board or nameplate or stationery should not indicate that he is or has been associated with any person or organization or with any particular cause or matter or that he specializes in any particular type of work or that he has been a judge or an Advocate General.
2. An advocate shall not permit his professional services or his name to be used in aid, or to make possible, the unauthorised practice of law by any agency.
3. An advocate shall not accept a fee less than the fee taxable under the rules when the client is able to pay the same.
4. An advocate shall not enter appearance by any case in which there is already a vakalat or memo of appearance field by an advocate engaged for a party except with his consent; in case such consent is not produced he shall apply to the court stating reasons why the said consent should not be produced and he shall appear only after obtaining the permission of the court.
Section V-Duty in imparting training
1. It is improper for an Advocate to demand or accept fees or any premium from any person as a consideration for imparting training in law under the rules prescribed by a State Bar Council to enable such person to qualify for enrolment under the Advocates Act, 1961.
Section VI - Duty to render Legal Aid
1. Every Advocate shall in the practice of the profession of law bear in mind that any one genuinely in need of a lawyer is entitled to legal assistance even though he cannot pay for it fully or adequately and that within the limits of an Advocate's economic condition, free legal assistance to the indigent and oppressed is one of the highest obligations an advocate owes to society.
2.6 Duty to the public and state (other Employments)
1. An advocate shall not personally engage in any business; but he may be a sleeping partner in a firm doing business provided that, in the opinion of the appropriate State Bar Council, the nature of the business is not inconsistent with the dignity of the profession.
2. An advocate may be Director of Chairman of the Board of Directors of a company with or without any ordinary sitting fee, provided none of his duties are of an executive character. An advocate shall not be a Managing Director or a Secretary of any company.
3. An advocate shall not be a full-time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practice, and shall, on taking up any employment, intimate the fact to the Bar Council on whose roll his name appears, and shall thereupon cease to practise as an advocate so long as he continues in such employment.
Nothing in this rule shall apply to a Law Officer of the Central Government of a State or of any Public Corporation or baby constituted by statute who is entitled to be enrolled under the rules of his State Bar Council made under section 28(2) (d) read with section 24(1)(e) of the Act despite his being a full time salaried employee.
Law Officer for the purpose of this rule means a person who is so designated by the terms appointment and who, by the said terms, is required to act and/or plead in courts on behalf of his employer.
4. An advocate who has inherited, or succeeded by survivorship to, a family business may continue it, but may not personally participate in the management thereof. He may continue to hold a share with others in any business which has descended to him by survivorship or inheritance or by will, provided he does not personally participate in the management thereof.
5. An advocate may review Parliamentary Bills for a remuneration, edit legal text books at a salary, do press-vetting for newspapers, coach pupils for legal examination, set and examine question papers; and, subject to the rules against advertising and full time employment, engage in broadcasting journalism, lecturing and teaching subjects, both legal and non-legal.
6. Nothing in these rules shall prevent an advocate from accepting, after obtaining the consent of the State bar Council part-time employment provided that in the opinion of the State Bar Council the nature of the employment does not conflict with the professional work and is not inconsistent with the dignity of the profession. This rule shall be subject to such directives if any as may be issued by the Bar Council of India from time to time.
UNIT III
3.1 CONTEMPT OF COURTS 1971
a) Meaning and kinds of Contempt of Court
According to Section 2(a) of the Contempt of Courts Act, 1971 'contempt of Court' means civil contempt or criminal contempt. Section 2(b) of the Act provides that "civil contempt" means willful disobedience to any judgment, decree, direction, order, writ or other process of a Court or willful breach of an undertaking given to a Court. Section 2(c) of the Act provides that "Criminal contempt" means the publication (whether by words, spoken or written or by signs or by visible representations or otherwise) of any matter of the doing of any other act whatsoever which -
i) scandalizes or tends to scandalize or lowers or tends to lower, the authority of, any Court, or
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.
The about definition contained in the Contempt of Court Act, 1971 is not exhaustive. It merely indicates that the contempt may be civil contempt or criminal contempt.
I. Cognizance and Procedure in case of contempt in face of the Court.
The issues relating to cognizance and procedure in such type of Contempt may be discussed under the following headings:-
a) Contempt in the face of the Supreme Court or High Court
Section 14 of the Contempt of Courts Act, 1971 deals with the contempt in the face of the Supreme Court or the High Court.
Section 14 deals with the contempt in the face of the Supreme Court or the High Court. In the case of contempt in the face of the High Court or Supreme Court, the provisions of Section 14 of the Contempt of Courts Act, 1971 apply. As sub-section (1) of Section 14 provides, when it is alleged or appear to the Supreme Court or the High Court upon its own view, that a person has been guilty of contempt committed in its presence or hearing, the Court may cause such person to be detained in custody and, at any time before the rising of the Court, on the same day or, as early as possible thereafter, shall-
a) cause him to be informed in writing of the contempt with which he is charged;
b) afford him an opportunity to make his defence to the charge;
c) after taking such evidence as may be necessary as may be offered by such person and after hearing him, proceeding, either forthwith or after adjournment, to determine the matter of the charge; and
d) make such order for the punishment or discharge of such as may be just.
Sub-section (1) of Section 14, thus, requires the compliance with the principle of natural justice that no one should be condemned or punished unheard. The rule of fair hearing requires that before starting the proceeding, the authority concerned should give to the affected person the notice of the case against him so that he may be able to defend himself.
As regards the opportunity to consult a counsel, the Court has made it clear that the law does not required that the person charged with contempt in the face of the Court shall necessarily be given the opportunity of consulting the solicitors or counsel before he is deal with.
Sub-section (2) of Section 14 provides in respect of the principle of natural justice that no man shall be a judge in his own case. It provides that where a person charged with contempt applies whether orally or in writing to have the charge against him tried by some judge other than the Judge or Judges in whose presence or hearing the offence is alleged to have been committed and the Court is of opinion that it is practicable to do so and that in the interest of proper administration of justice, the application should be allowed, it shall cause the matter to be placed, together with a statement of the facts of the case before the Chief Justice for such directions as he may think fit to issue as respects the trial thereof.
If trial of a person charged with contempt is held by a Judge other than the Judge or Judges in whose presence or hearing the offence is alleged to have been committed, it is not necessary for the Judge or Judges in whose presence or hearing the offence is alleged to have been committed to appear as a witness and the statement placed before the Chief Justice under sub-section (2) of Section 14 shall be treated as evidence in the case.
Sub-section (4) of Section 14 makes it clear that the pending determination of the charge, the Court may direct that a person charged with contempt under this Section shall be detained in such custody as it may specify, provided that he shall be released on bail, if a bond for such sum of money as the Court thinks sufficient is executed with or without sureties conditioned that the person charged shall attend at the time and place mentioned in the bond and shall continue to so attend until otherwise directed by the Court. The second proviso to sub-section (4) provides that the Court may, if it thinks fit, instead of taking bail from such person, discharge him on his executing a bond without sureties for his attendance as aforesaid.
b) Contempt outside the Court
Section 15 of the Act deals with the criminal contempt other than those covered by Section 14.
Section 15 of the Contempt of Court Act, 1991 run as under:
Sec. 15."Cognizance of criminal contempt in other cases. - (1) in the case of a criminal contempt, other than a contempt referred to in Section 14, the Supreme Court or the High Court may take action on its own motion or on a motion made by,
a) the Advocate-General, or
b) any other person with the consent in writing of the Advocate-General, or
c) in relation to the High Court for the Union Territory of Delhi, such Law Officer as the Central Government may, by notification in the official Gazette, specify in this behalf, or any other person, with the consent in writing of such law officer.
(2) In the case of any criminal contempt of a subordinate court, the High Court may take action on a reference made to it by the subordinate court or on a motion made by the Advocate General or, in relation to a Union Territory, by such Law Officer as the Central Government may, by notification in the official Gazette, specify in this behalf.
(3) Every motion or reference made under this section shall specify the contempt of which the person charged is alleged to be guilty.
Explanation-In this section, the expression "Advocate-General" means,
a) in relation to the Supreme Court, the Attorney-General or the Solicitor-General;
b) in relation to the High Court, the Advocate-General of the Sate or any of the State or any of the States for which the High Court has been established;
c) in relation to the Court of Judicial Commissioner, such law officer as the Central Government may, by notification in the official Gazette, specify in this behalf."
Sub-section (1) if Section 15 of the Act provides that in the case of criminal contempt other than a contempt referred to in Section 14, the Supreme Court or the High Court may take action on its own motion or on a motion made by-
a) the Advocate-General, or
b) any other person with the consent in writing of the Advocate-General, or
c) in relation to the High Court for the Union Territory of Delhi, such Law Officer as the Central Government may, by notification in the official Gazette, specify in this behalf, or any other person, with the consent in writing of such Law Officer. For this purpose the expression Advocate-General Means-
a) in relation to the Supreme Court, the Attorney-General or the Solicitor-General;
b) in relation to the High Court, the Advocate-General of the Sate or any of the State or any of the States for which the High Court has been established;
c) in relation to the Court of Judicial Commissioner, such law officer as the Central Government may, by notification in the official Gazette, specify in this behalf.
According to this section, thus, cognizance for criminal contempt of the Supreme Court or of the High Court can be taken by the Court by three methods, namely, on its own motion or on the motion of the Advocate-General or on motion by any other person with the consent in writing of the Advocate-General.
Section 17 makes provisions in respect of the procedure after taking cognizance of the contempt under Section 15.
Provisions of Section 17 of the Contempt of Courts Act, 1971 are as follows:
Sec.17. "Procedure after Cognizance.-(1) Notice of every proceeding under Section 15 shall be served personally on the person charged, unless the court for reasons to be recorded directs otherwise.
(2) the notice shall be accompanied,
a) in the case of proceedings commenced on a motion, by a copy of the motion as also copies of the affidavits, if any, on which such motion is founded, and
b) in the case of proceedings commenced on a reference by a subordinate court, by a copy of the reference.
3) The Court may, if it is satisfied that a person charged under Section 15 is likely to abscond or keep out of the way to avoid service of the notice, order the attachment of his property of such value or amount as it may deem reasonable.
4) Every attachment under sub-section (3) shall be effected in the manner provided in Code of Civil Procedure, 1908, for the attachment of property in execution of a decree for payment of money, and if, after such attachment, the person charged appears and shows to the satisfaction of the court that he did not abscond or keep out of the way to avoid service of the notice, the Court shall order the release of his property from attachment upon such terms as to costs or otherwise as it may think fit.
5) Any person charged with contempt under Section 15 may file an affidavit in support of his defence, and the Court may determine the matter of the charge either on the affidavits filed or after taking such further evidence as may be necessary, and pass such order as the justice of the case requires."
II. Defences open to Contemner
a) Defences in Criminal Contempt:
1) The defence mentioned in Section 3 of the Act may be discussed under the Following Hedings :-
a) No reasonable ground for believing that the proceedings was pending.
b) Proceeding not pending at the time of publication.
c) Innocent Distribution of publication.
2) Fair and accurate report of judicial Proceedings.-Section 4 of the Contempt of Courts Act, 1971 provides that a person shall not be guilty of contempt of Court for publishing a fair and accurate report of a judicial proceeding or any stage thereof.
3) Fair criticism of Judicial act.-Section 5 of the Contempt of Courts Act, 1971 provides that a person shall not be guilty of contempt of Court for publishing any fair comment on the merits of any cases which has been and finally decided.
4) Bona Fide complaint against the presiding officers of the subordinate Court.- Bona fide complaint against the presiding officer of the subordinate Court can be made under Section 6 of the Act. It provides that a person shall not be guilty of contempt of Court in respect of any statement made by him in good faith concerning the presiding officer of any subordinate Court to-
a) Any other subordinate Court, or
b) The High Court,
to which it is subordinate.
The protection of Section 6 is available only when it is proved that the complaint has been made in good faith.
5) No substantial interference with due course of justice and truth as defenece.-Section 13 of the Contempt of Courts Act, 1971 provides that notwithstanding anything contained in any law for the time being in force, no Court shall impose a sentence under this Act for a contempt of Court, unless it is satisfied that the contempt is of such a nature that it substantially interferes or tends substantially to interfere with the due course of justice.
6) Defamation of the judge personally.-If the publication of other act is merely a defamatory attack on the Judge and is not calculated to interfere with the due administration of justice, it will not be taken as contempt of Court.
7) The Statement complained of open to different interpretations.- In the case of contempt proceedings the charge is required to be established beyond any reasonable doubt. If the words complained of may be interpreted in two different manners and one of them indicates contempt while the other does not, the commission of contempt cannot be taken to have been proved and the contemner cannot be punished therefore.
8) The Statement complained of has no nexus with the judicial function of a Judge.-The publication or other act amounts to contempt of Court only when it has nexus with the functioning of a Judge. The statement complained of may amount to contempt of Court only when it is made against the Judge in his judicial capacity in the exercise of his judicial functions.
9) No imminent danger of interference with administration of justice.-
In order to constitute contempt it is not necessary that there should in fact be an actual interference with the administration of justice. It is sufficient if the publication or act complained of its likely to interfere with the administration of justice. The offence of contempt is taken as complete by the attempt and does not depend on actual deflection of justice and purity of the motive of the contemner. However, in the case of charge of contempt based on the allegation of likely interference with the administration of justice, the contemner can show that there was no imminent danger of such interference.
b) Defence in Civil Contempt
Important defences open to a contemner in Civil contempt may be discussed under the headings, stated below:
1) Disobedience or Breach was not willful
For civil contempt the disobedience of the order, decree, etc. of the Court or breach of undertaking given to the Court must be willful. Consequently, it would be a defence in the contempt proceedings that the disobedience or breach has not been willful.
2) The order has been passed without jurisdiction
If the order disobeyed is proved to have been passed by the Court without jurisdiction or the undertaking violated is proved to have been given in a proceeding which was without jurisdiction, the disobedience or violation would not amount to contempt to court.
3) Order disobeyed is vague or ambiguous
It would be a defence in the contempt proceedings that the order is vague or ambiguous.
4) Order involves more than one reasonable interpretation
If the Court's order involves more than one reasonable and rational interpretation and the respondent adopts one of them and acts in accordance with such interpretation, he cannot be held liable for contempt of Court.
5) Compliance with the order is impossible
In the contempt proceeding, it would be a valid defence to say that compliance with the order of the Court was impossible. Where the implication of the order was to saddle the Government with unforeseen and disruptive financial implications this defence was allowed.
6) No knowledge of order
The general principle is that a person cannot be held guilty of contempt in infringing an order of the Court of which he knows nothing. Where an order of status quo is passed by the Court but the party continues the work prior to receiving the order and also he has no actual knowledge of the order, he will not be liable for contempt of court.
III. Nature and Extent of Punishment and Remedies Against the order of Punishment
I. Nature and extent of Punishment
Section 12 of the Contempt of Courts Act, 1971 makes provision in respect of punishment for contempt of court. The provisions of Section 12 are as follows:
Sub-section (1) of Section 12 of the Contempt of Courts Act, 1971 provides that save as otherwise expressly provided in this Act or in any other law, a contempt of Court may be punished with simple imprisonment for a term which may extend to 6 months or with fine which may extend to two thousand rupees or with both.
II. Remedies against the Order of Punishment
Remedies against the punishment of a civil contempt, the court, if it considers that a fine will not meet the ends of justice and that a sentence of imprisonment is necessary, shall, instead of sentencing him to simple imprisonment, direct that he be detained in a civil prison for such period not exceeding six months as it may think fit. Actually the civil contempt is considered less serious than the criminal contempt. Consequently, in the case of civil contempt the general rule is to impose a fine and imprisonment is an exception.
The remedies available to the contemner against the punishment may be discussed under the following headings:
1. Apology
The contemner may tender apology to the Court and if the Court is satisfied that it has been made with real feeling of repentance, it may remit the punishment awarded for the contempt.
2. Appeal
The Contempt of Courts Act, 1971, for the first time, provides for the statutory right of appeal from the orders or decisions of the High court passed in the exercise of its jurisdiction to punish for the contempt of Court.
Provisions of Section 19 of Contempt of Courts Act, 1971 are as follows:
"Sec. 19.Appeals. -
(1) An appeal shall lie as of right from any order or decision of High Court in the exercise of its jurisdiction to punish for contempt -
a) Where the order or decision is that of a single Judge, to a Bench of not less than two Judges of the Court;
b) Where the order or decision is that of a Bench, to the Supreme Court:
Provided that where the order or decision is that of the Court of the Judicial Commissioner in any Union Territory, such appeal shall lie to the Supreme Court.
(2) Pending any appeal, the appellate Court may order that,-
a) The execution of the punishment, or order appealed against be suspended;
b) If the appellant is in confinement, he be released on bail; and
c) The appeal be heard notwithstanding that the appellant has not purged his contempt.
(3) Where any person aggrieved by any order against which an appeal may be field, satisfies the high Court that he intends to prefer an appeal, the High Court may also exercise all or any of the powers conferred by sub-section (2)
(4) An appeal under sub-section (1)shall be filed:-
a) In the case of an appeal to a Bench of the High Court, within thirty days;
b) In the case of an appeal to the Supreme Court, within sixty-days, from the date of the order appealed against."
Sub-section (1) of Section 19 provides that an appeal shall lie as of right from any order or decision of the High Court in the exercise of its jurisdiction of punish for contempt-
a) Where the order or decision is that of a single Judge, to a Bench of not less than two Judges of the Court;
b) Where the order or decision is that of a Bench, to the Supreme Court:
Provided that where the order or decision is that of the Court of the Judicial Commissioner in any Union territory, such appeal shall lie to the Supreme Court.
3.2 SELECTED MAJOR JUDGMENTS OF THE SUPREME COURT:-
1) N B Nirzan V/s The disciplinary Committee of Bar Council of Maharashtra and Another
AIR 1972 SC. 46
Brief Facts:-
Mirza was an advocate-appellant. He demanded Rs. 975/- from the Client on a Pretext that the amount was necessary to deposit in the court, but he did not deposit that amount and misappropriated the amount. Disciplinary committee of the Bar Council of Maharashtra found him guilty and debarred him from profession for certain period.
Judgment:-
On appeal, the Supreme Court confirmed the order given by the Disciplinary committee of State Bar Council of Maharashtra.
2) Bar Council of Maharashtra V/s M.V Dabbolkar etc.,
AIR 1976 SC. 242
Brief Facts:-
M.V.Dhabokar was practicing as an Advocate at the presidency Magistrate's court, Esplanade, Fort Bombay. There were certain allegations against him that he was acting against the professional, viz., standing at the entrance of the court house at the presidency Magistrate's court and soliciting work and generally behaving at that place in an undignified manner. It was alleged that the earned more money by means of touting and other corrupt practices.
His misconducts were proved before the Disciplinary committee, which suspended for three years. He appealed to Bar Council of India, which too confirmed the same punishment. He preferred appeal to the Supreme Court.
Judgment:-
The Supreme Court also confirmed the punishment of three years Suspension from practice.
Principle:-
The Supreme Court held:
"Frankly speaking, if Dhabolkar was starving his professional misconduct could have been overlooked because between hunger and soliciting work, the latter is less pernicious. The vital role of the lawyer depends upon his probity and professional life style. The canons of ethics and property for the legal Profession totally bad conduct by way of soliciting advertising, scrambling and other obnoxious practices. Law is no trade briefs no merchandise".
3) VCRangadurai V/s D Gopalan and others
AIR 1979 SC. 281
Brief Facts:-
V C Rangadurai was an Advocate. T.Devasenapathy was an old deaf man, aged 70 years and Smt. D.Kamalamma was also aged. They had given two promissory notes to Rangadurai and also paid the fees as was asked to the advocate. Nevertheless, the advocate did not file the case in time.
The limitation ran over. After a long time after wandering around the office of the advocate, the old man came to know that the advocate deceived him by not filling the cases within the time even after receiving the fees. He filed a complaint before the Disciplinary committee of the Tamil Nadu State Bar Council, which after enquiry punished the advocate suspending him for six years. On appeal, it was confirmed by the Bar Council of India. The advocate appealed to the Supreme Court.
Judgment:-
The Supreme Court confirmed the decision of the Disciplinary Committee i.e., Suspension of the advocates for six years.
4) Chandra Shekharsoni V/s Bar Council of Rajasthan and others
AIR 1983 SC. 1012
Brief facts:-
Chandra Shekharsoni was an Advocate enrolled in the Bar Council of Rajasthan. He accepted a brief from the complainant-client. Later he induced the client to pay Rs. 300/- on the pretext that the amount shall be given to a Radiologist for obtaining an expert opinion in their favour showing that there was a fracture on the skull. The Bar Council of Rajasthan held that it was a grave professional misconduct and the Advocate was guilty of professional and reprehensible misconduct. It suspended him from practice. The Advocate appealed to Bar Council of India, which confirmed the decision of the Disciplinary Committee of the State Bar Council, Rajasthan. He appealed to the Supreme Court.
Judgment:-
The Supreme Court also confirmed the decision of the Disciplinary committee.
5) In Re VinayChandre Mishra 1995 (vol-I) IBR 118
(1995) 2 SC. 584
Brief facts:-
M/s Bansal Forgings company Ltd. took loan from U.P. Financial Corporation and defaulted. The corporation proceeded against the company. The trial court gave judgment on 31-1-1994 in favour of the corporation and directed the company to pay the loan and interest in installments, and to furnish security for the regular payment of installments.
Against the said order, an appeal was preferred to Allahabad High Court; Appeal was posted before JusticeAnshuman Singh. Vinay Chandra Mishra was the counsel for the company. He argued that the trial court had no jurisdiction to pass the orders for payment of installment of loan and contended that no security could have been ordered.
Justice Anshuman Singh questioned Shri Mishra under which Provision impuged order had been passed. On putting of question, mishra started to shout and said "that no question could have been put to him", that he would get the judge transferred or impeached and threatened by saying that he had "turned up many judges" and created a scene in the court and the counsel lost his temper and according to justice Anshuman Singh, "except to abuse him of mother and sister", the contemner abused and insulted him "like anything".
Justice Anshuman Singh reported the matter to the acting chief justice of the high Court, who forwarded it to the Supreme Court. The Supreme Court took cognizance suomotu and started criminal contempt proceedings against Shri Mishra. While the contempt proceedings were continued, ShriMishra submitted an apology.
Judgment:-
The Supreme Court Sentenced Vinay Chandra Mishra to undergo simple imprisonment for a period of 6 weeks, but suspended the sentence for a period of four years. During this four years period, sentence may be activated in case the contemner would be convicted for any other offence of contempt of court within the said period. Further he was suspended from practicing as an advocate for a period of three years from the date of judgment.
6) Supreme Court Bar Association V/s Union of India
AIR 1998 SC. 1895
In this case, the Supreme Court bar Association raise Question of law that when a Bar Council of India and its State Bodies are established under the Advocates Act, 1961 for the purpose of punishing the advocates for their 'Professional misconduct', then what is the necessity of invoking the provisions of the contempt of Courts Act, 1971 against the Advocates? Does the Supreme Court or High Court exceed the jurisdiction of the Bar Council?
Judgment:-
The Supreme Court discussed the question of law raised by the petitioner in detail, and gave judgment in 35 pages, and finally concluded that the Supreme Court and High Courts have jurisdiction to proceed against the Advocates under the contempt of Courts Act 1971.
UNIT - IV
SELECTED OPIONS OF THE BAR COUNCIL OF INDIA
Case No. 4.1
THE DISCIPLINARY COMMITTEE OF THE BAR COUNCIL OF INDIA
D.C. APPEAL NO. 16 OF 1993
"A" ... Appellant
V/s
"R" ... Respondent
PRESENT:
ShriC.L.Sachdeva ... Chairman
ShriO.P.Sharma ... Member
ShriT.P.Singh ... Member
JUDGMENT
DATED 5th October, 1996
On a complaint being filed by one R, son of late Shri Uddendu Saheb, the State Bar Council Prima facie felt satisfied taking cognizance under Section 35 of the Advocates Act, registered Case No. 46 of 1991. After providing sufficient opportunities to the parties for leading evidence and hearing the State Bar Council vide its judgment and order dated 14.3.1993 was pleased to debar the respondent-appellant Advocate from practice a period of one year under Section 35 (3) (c) of the Advocates Act, aggrieved against which the present appeal was preferred by the respondent Advocate. At the time of appeal the Bar Council was pleased to defer the sentence awarded by the State Bar Council which has continued till this date. The complainant-respondent came up with the case that he had executed a registered sale deed with an option to re-purchase the property situate in village Deeravalli in favour of one Lanka Sambe Siva Rao. However, he continued to remain in possession and enjoyment of the said house property. By taking advantage of the sale deed, the vendee, Lanka Samba Siva Rao made attempts to forcibly occupy the subject-matter in collusion with the Police and consequently the complainant decided to file a suit seeking injunction against the said Shri Rao and engaged the respondent-appellant in the said suit with was registered as 87 of 1985. As a counter blast the said Shri Raoalos filed a suit being O.S.No. 89 of 1985 in the Sub-Court, Gudivada, on the basis of the afore-mentioned sale deed shown the same to be a mortgage deed and for recovery f the mortgage amount thus foreclosure. In the said suit the respondent-complainant filed his written statement alleging the said document as sham and nominal. It is further alleged that in O.S.No. 87 of 1985 a cheque slip was issued by the Court under Section 24(b) of the A.P.C.F and S.V. Act.
The charge is that the respondent appellant did not prosecute his case diligently and neither informed him about the progress in the case nor made the deficiency good. While the suit was dismissed on 15.4.1986 for non-payment of deficit court fees, the fact was not disclosed to him. The stage of the suit was enquired on several occasions and also on 15.4.1986 on which date the written statement in O.S.No. 89 of 1985 was finalized and even consequent thereafter. He suddenly heard a rumour on 23.9.1991 that O.S.No. 87 of 1985 has been dismissed while O.S.No. 89 of 1985 has been allowed. On verification the said rumour was found to be correct and it revealed that O.S.No. 87 of 1985 was dismissed as long back as on 15.4.1986 itself. On 24.9.1991 the complainant asked for return of the files of both the cases and also consent of the charged Advocate for engaging different Advocate. On enquiry it further revealed on 25.9.1991 that on 20.9.1991 in O.S.No. 89 of 1985 two witnesses were examined and the suit was posted for 27.9.1991 for the examination of the third witness on behalf of the plaintiff in the suit. On 25.9.1991 the respondent Advocate gave the case papers relating to O.S.No. 89 of 1985 and promised to report no instructions on 27.9.1991 at Gudivada. On 27.9.1991 the case was first adjourned on a request on behalf of the plaintiff to 4.10.1991 but after the defendant's side left the Court, the case was advanced and P.W.3 was examined on behalf of the plaintiff and cross-examined by the respondent Advocate after having promises to report on instructions.
The change Advocate has blamed the complainant for non-submission of the court fees and has denied the complaint case.
Parties were heard on 22.6.1995 assisted by their counsel and the judgment was reserved. In the above noted matter, written arguments too has been submitted by the parties. We have gone through the evidence on record, written arguments submitted by the appellant and the order passed by the State Bar Council. The mercy appeal too has been made by the daughter of the charged advocate who has recently joined the profession. The State Bar Council after having scrutinized evidence on record has passed reasoned order with which we all agree and there seems to be no reason to differ. The State Disciplinary Committee has framed as many as eight issues and has made the following observations:-
i) When C.W.3 (complainant) had asked for the consent on the vakalat to change the lawyer (changed Advocate) he should not have hesitated to walk out of the brief by giving consent.
ii) It is unbecoming of an Advocate to keep the client in darkness about the progress of the case and in this case the charged Advocate kept the client in darkness about the cheque slip relating to the payment of court fees and dismissal of the suit which is reprehensible and the reasons given by R.W.1 and R.W.2 about which the financial capacity of the complainant to pay the same are not acceptable.
iii) The charged Advocate has cross examined the witnesses without instructions from his clients and without knowledge of his clients especially in view of the fact that the complainant has withdrawn instructions and their confidence was shaken which was brought to the notice of the Bar Council. The allegation that Suit No.87 of 1985 was dismissed on 16.4.1986 for non paymentof deficit court fees stands established. It is also accepted that the Advocate concerned kept his client in darkness about the fate of the case till 23.9.1991.
iv) The charged Advocate himself admitted that he refused to file delay condonation petition for restoration of original Suit No.87 of 1958 which is unbecoming of him.
v) The evidence of the complainant to the effect that the charged Advocate has not returned relating to original Suit. 87 of 1985 has been accepted. It is a further accepted that the charged Advocate promised to report no instructions on 27.9.1991 in Original Suit No. 89 of 1985 in the Court of Sub Judge, Gudivada but corss-examined P.W.3 in the absence of the Complainant.
The aforesaid findings recorded by the State Bar Council are based on evidence on record. There is no reason to differ with the same. In the circumstances, we affirm the order passed by the State Bar Council and direct the appellant to observe the punishment awarded by the State Bar Council. The stay order granted by the Bar Council shall stand vacated.
Sd/- C.L.Sachdeva Sd/- O.P.Sharma Sd/- T.P.Singh
Chairman Member Member
Case No. 4.2
THE DISCIPLINARY COMMITTEE OF THE BAR COUNCIL OF INDIA
B.C.I. TR. CASE NO. 40/1991
District Judge, Nainital ... Appellant
V/s
"R" ... Respondent
PRESENT:
ShriC.L.Sachdeva ... Chairman
ShriO.P.Sharma ... Member
ShriT.P.Singh ... Member
JUDGMENT
DATED 5th October, 1996
Proceedings under section 35 of the Advocate` Act 1961 was initiated against the charged advocate, R.Giving rise to D.C.Case No.59/1989 before the State Bar Council of Uttar Pradesh, the State Bar Council prima facie felt satisfied and referred the matter to its Disciplinary Committee in its General Body meeting held on 12-8-1989 which shows that on account of dilatory tacties adopted by the charged Advocate, it could not dispose of the matter within the stipulated period as contemplated u/s 36B of the Advocates` Act and ultimately the matter came up before the Bar Council of India and registered as BCI Tr. Case No. 40/1991. Perusal of the order sheet shows that inspite of several notices sent to the charged advocate, he did not participate in the proceedings and consequently matter proceeded ex-parte against him. The Disciplinary Committee of the Bar Council of India in its meeting held on 13th January, 1996 framed the following issues:-
i) Whether the Respondent has stated any falsehood before the Motor Accident Claim Tribunal/ Nainital for illegal giants?
ii) Whether the respondent has committed any fraud in mis-representing the facts deliberately before the Tribunal?
iii) Whether the respondent has committed any professional misconduct?
Since all the issues are inter related and specially in the background that no evidence has been led in defence, all the issues are dealt simultaneously.
A copy of the judgment delivery by the learned District Judge dated 2-12-1987 is on record which seems to have been passed in a Review Petition. Perusal of the Judgment shows that in a Motor Accident one Mohsin Ali Khan S/o Mhd. Ali Khan, resident of Mohalla Bazar, Baheri, Distt. Bareilly received injuries in a motor accident on 11-9-1983 at KichhaTirahaKichha, P.S.Kichaa on the road leading from the said Tiraha to Bareilly. As a result of which he subsequently died. Motor Accident Case being No. 14/1982 was initially initiated by the said Mohsin Ali Khan S/o Mohd. Ali Khan R/o Mohalla Bazar, Behari, District Bareilly in respect of injuries said to have been sustained by him in a motor accident at about 5.30 P.M on 19-9-1981 at Behari on the road leading from Nainital to Bareilly. It was also alleged that on account of the injuries received on 19-9-1981 Mohsin Ali Khan was literally crippled and permanently disabled. An application (16 Kha) being on the file on M.A.C 14 of 1982 discloses that Mohsin Ali Khan Ultimately died on 28-4-83 as a result of the injuries sustained on 19-9-1981. This was an application for substitution which was later incorporated in the claim petition under the Tribunal's order dated 20-9-1983 by which Smt. QuisarJahan Begum, widow of Mohsin Ali Khan, Quisar Bee and Salmma Bee daughters of Mohsin Ali and Ahasan Ali Khan S/o Mohsin Ali, Mhd. Ali Khan, father of Mohsin Ali Khan and Smt. Nafis begum, Mother of Mhsin Ali Khan were brought on record. Another case being Motor Accident case No. 21/1984 was instituted by the aforesaid Smt. QuisarJahan, Km. Kausar Bee, Km. Sakama Bee and Ashan Ali Khan the Khan, the window and minor daughter of mohsin Ali Khan, on 27-2-1984 where it was alleged that Mohsin Ali Khan met with a motor accident at 5 P.M on 11-9-1983 at TirahaKichha on the road leading to Bareilly P.S.Kichha and sustained serious injuries including fracture. While the fact of the matter is that Mohsin Ali Khan had already died on 28-4-1983 as shown by the record of Motor Accident Case No.14/1982, it is obvious that he could not have been involved in the alleged accident alleged to have occurred n 11-9-1983.
The first accident was alleged to have taken place with a Mini Bus No. USE. 7725 which was insured by the New India Assurance Company, while the vehicle involved in the subsequent accident dated 11-9-1983 was shown to be a Bus No. USM 6949 which was insured by M/s Oriental Fire and General Insurance Company Ltd.
Motor Accident Case No. 21/1984 was instituted through the charged Advocate, R, Bareilly. This was also brought on record that R is real brother of the deceased Mohsin Ali Khan. Sine Mohsin Ali Khan had already expired on 28-4-1983, the subsequent accident dated 11-9-1983 for preferring the claim is obviously a manufactured incident. The Charged Advocate being real brother of Mohsin Ali Khan was definitely knowing about the death of his brother n 28-8-1983. It is obvious that charged advocate colluded with Smt. QisarJahan Began and the witness, Sri BhagwatSaranharma, in obtaining an award from the Tribunal on 21-2-1986 in Motor Accident case No. 21/84. There is no doubt that subsequent award dated 21-2-1986 was obtained by way of fraud by the charged advocate and by the claimants. The aforesaid fraud came to the light when M/s Oriental Fire and General Insurance Co. Ltd., applied for quashing the subsequent award dated 21-2-1986 in Motor Accident Case No.21/1984 as a result of which the same was ultimately quashed.
This was obviously a case of fraud as a result of which learned District Judge referred the matter to the Bar Council of U.P for drawing misconduct proceedings against R, Advocate.
In a short reply submitted by the charged Advocate, apart from denying the fact, apology has been sought.
In recent past it has been experienced that in the cases of Motor Accident Claim, the role of the lawyers in some f the cases has not been up to the mark. Cases of misappropriation were frequently being brought to the notice of the Bar Council of India as a result of which necessary amendments were made in the practice of preparation of cheques in the name of Claimant's counsel t the claimants themselves, which has now been adopted. The facts of the above noted casually. The chargedadvocate, who has taken the matter very lightly, though serious in nature and has not led any effective evidence in support of his defence, a word of apology cannot exonerate him from the charge leveled against him. Under the circumstances, committee is of the view that the charged advocate should be debarred for a period of two years from the date of the notification of the order. The information to this effect be sent to the State Bar Council of Uttar Pradesh, District Judge, Bareilly, District Judge, National, President, Bar Association, Bareilly District, President, Bar Association, National, etc.
Sd/- C.L.Sachdeva Sd/- O.P.Sharma Sd/- T.P.Singh
Chairman Member Member
Case No. 4.3
THE DISCIPLINARY COMMITTEE OF THE BAR COUNCIL OF INDIA
D.C. APPEAL NO. 8/1994
"A" ... Appellant
V/s
"R" ... Respondent
PRESENT:
ShriD.V.Patil ... Chairman
ShriS.C.Chawla ... Member
ShriS.Gopakumaran Nair ... Member
JUDGMENT
DATED 8thDecember, 1996
This is an appeal against the order of State Bar Council wherein the appellant was suspended for a period of six months from practice.
Brief facts of the case are that the respondent paid a sum of Rs. 10,000/- on 16-5-1981 and Rs. 60,000/- on 4-10-1981 to Rao and Raju Builders Pvt. Ltd., Hyderabad. The amount was paid to construct a three bed room house on the plot allotted to the complainant.
As the said Builders failed to construct the house, the respondent met P.S. Rao Managing Director of Rao and Raju Builders Pvt. Ltd. to settle the matter amicably. The said P.S.Rao suggested to the respondent to approach the appellant. A practicing Advocate at Hyderabad to seek his advice. The respondent met him in March, 1984 and then appellant advised him to file a suit for recovery of amount from M/s Rao and Raju Builders Pvt. Ltd. The respondent paid Rs. 5,000/- to the appellant for filling the said recovery suit and the appellant obtained his signatures on the plaint prepared by him. That thereafter the respondent asked his brother-in-law to pursue the matter who was also G.P.A holder of the respondent. The respondent's brother-in-law met the appellant in July, 1991 and enquired about the case. The respondent told him that it was still at S.R. Stage and yet to be numbered. The respondent on 4th September, 1991 set a Regd. Letter alongwith a draft of Rs. 400/- to the appellant for taking necessary steps so that the matter may be taken up before the City Civil Court, Hyderabad. The appellant did not send any reply and another Regd. Letter was sent to him on 18-12-1991 since no replay was also sent by the appellant, the respondent filed a case against the appellant for professional misconduct as he failed to file the suit of the respondent inspite of having received the amount of fee.
On the complaint of the respondent the appellant was issued show case notice and the appellant submitted his replay wherein he admitted the fact that the respondent has approached him for consultation but in view of the fact that the appellant was approached by Mr. P.S. Rao one of Directors of Rao and Raju Builders Pvt. Ltd., expressed his inability to prosecute the matter and gave friendly advice for instituting a case against the firm. Rest of the allegations have been denied. He also stated that after receiving the demand draft for Rs. 400/- he returned the same on 19-9-1991 and he never encashed the said draft f Rs. 400/-. The appellant, therefore, did not accept the brief of the respondent and as such he was not guilty of any professional misconduct.
On the pleadings of the parties following issues were framed:-
i) Whether it is a fact that the complaint paid a sum of Rs. 500/- to the respondent to file a suit to recover the amounts due to him from Rao and Raju Builders, Abids, Hyderabad?
ii) Whether the complainant sent a D.D for Rs. 400/- again by Regd. Post on 4-9-1991 to the Respondent asking him to take all steps necessary for the case entrusted by him?
iii) Whether the respondent took any steps in respect of the case entrusted by the complainant to him?
iv) Whether the respondent is guilty of any professional misconduct?
v) To what relief?
The respondent examined three witnesses in support of his case, whereas the appellant has examined himself. Documents were also exhibited as C-1 to C-5 and R-1 to R-2. The Disciplinary Committee of the State Bar Council on the basis of the evidence on record and documents decided first three issues against the appellant, and held the appellant guilty of professional misconduct and passed the impugned order, hence this appeal.
We have heard the arguments of the appellant and counsel for the respondent and have gone through the record. The appellant has argued that there was contradiction in the statement of the complainant and other witnesses in respect of his meeting in March, 1984 and about signing the plaint. The respondent in his statement has admitted that after filing the case in 1984 there was no written communication between him and the appellant, till 4-9-1991. There was also no proof of the payment of Rs. 5,000/- as alleged in the complaint which was paid to the appellant. Similarly CW-2 and CW-3 do not support the assertion of the respondent in respect of the signing the plaint and making the payment. He further argued that suit was filed by one BhagwanDass Sharma, Advocate on 7-6-1984 and he was representing the respondent in the said suit and instead of approaching the said advocate a false and concocted compliant has been filed against the appellant with malafide intention. So far as draft of Rs. 400/- is concerned he has exhibited a letter dated 19-9-1991 that he sent the draft back to the respondent as he was not concerned with the case. He also challenged the impugned order on the ground that the respondent as per his own statement never made any diligent attempt from November, 1983 to October, 1991 to find out the fate of the suit. This itself shows that appellant was not at all interested with the matter in view of the above discrepancies and contradictions in the statement as well as no proof of Rs. 5,000/-. The respondent has miserably failed to prove his case against the appellant for professional misconduct.
On the other hand the counsel for respondent has vehemently argued that the respondent has produced sufficient evidence oral and documentary to prove his case against the appellant. He argued that the statements of the witnesses fully corroborate the fact of engaging the appellant by the respondent as his counsel and payment of Rs. 5,000/- but inspite of the same the appellant was negligent in not filling the case and replying to the letters sent to him by Regd. Post asking him to expedite the case filed by the respondent. The letter of 19-9-1991 which is Exbt.as R-1 was not at all received by the appellant. He argued that the letter is an afterthought as it is unexpected of a lawyer who has received a registered letter from a client specially asking about the progress of the case and sending a draft of Rs. 400/- towards expenses would reply by an ordinary post without any proof of its being posted. No proof of the posting of the said letter has been furnished by the appellant, the letter now Exbt. R-1 is an after thought cannot be taken into consideration. Moreover the appellant has not denied that the respondent approached him for filling a case and the statement of CW-3 P.S. Rao who is one of the Directors of the company M/s Rao and Raju Pvt. Ltd. who advised the respondent to go to the appellant for filling the case has appeared as a witness and corroborated the statement of the respondent and his evidence which is of independent in nature could not be brushed aside, therefore the respondent has fully proved his case against the appellant for professional misconduct.
We have given a careful consideration to the arguments of both the parties and are of the opinion that the appellant was engaged by the respondent as his counsel and was paid Rs. 5,000/- towards the fees and inspite of having received the payment he neglected and failed to file the case on behalf of the respondent. We are not inclined to accept the plea of the appellant that he sent a letter on 19-9-1991 that he was never a counsel for the respondent and has sent back the draft of Rs. 400/- as no proof of posting said letter has been filed before us.
We therefore find that the appellant is guilty of professional misconduct and we see no reason to disagree with the finding of the State Bar Council suspending the appellant for a period of six months from practice.
In view of the above we dismiss the appeal and uphold the order of the State Bar Council.
Announced.
Sd/- Sd/- Sd/-
(D.V.PATIL) (S.C.CHAWLA) (S.GOPAKUMARAN NAIR)
Chairman Member Member
Case No. 4.4
THE DISCIPLINARY COMMITTEE OF THE BAR COUNCIL OF INDIA
D.C. APPEAL NO. 20/1994
PRESENT:
ShriGirish.D. Bhatt, ... Chairman
ShriJ.B.Pardivala, ... Member
ShriB.R.Sharma ... Member
JUDGMENT
DATED 1st June, 1996
This appeal is directed against the Judgment and order dated 2-4-19194 rendered by the Disciplinary Committee, Indore Bench,Bar Council of Madhya Pradesh in complaint Case No. 67/1992 wherein the SANAD of the appellant has been suspended for a period of seven years on the grounds of professional misconduct.
2. The gravamen of the charge against the present appellant is that one Subbash Jain brother of the respondent complainant is a convict. He has been convicted u/s 302 IPC and is sentenced to undergo life imprisonment. Thereafter he applied under section 2 of the Madhya Pradesh Prisoners Release on Probation Act, 1954 and the matter came up for hearing before the Hon'ble High Court of Madhya Pradesh, Indore Bench and Hon'ble High Court by its order dated 8-1-1992 dismissed M.P.No 14/92 with the following observations:-
"By this petition under article 226 of the Constitution of India the petitioner seeks to virtually challenge an order dated 3-10-1991 passed in N.P. No. 87/1991 cancelling grant of bail to the petitioner in case his release u/s 2 of the M.P. Prisoner's Release on Probation Act, 1954".
"This petition is wholly misconceived. Right to be released on probation is discretionary. The charge against the petitioner is that he procured his release by producing a forged release order, which speaks of his past antecedents and conduct".
3. The material part of the case of the respondent complainant in his complaint before the State Bar Council was that the respondent engaged the present appellant as advocate for preferring Special Leave Petition against the order dated 8-1-1992 of the High Court of Madhya Pradesh passed in M.P No. 14/1992and that the respondent advocate in turn demanded Rs. 15,000/- towards his professional fees and expenses from the respondent. It was further alleged by the respondent complainant that the amount of Rs. 15,000/- as asked for by the appellant was paid to the appellant and the papers were also handed over to the appellant. It was further the case of the respondent that after repeated reminders by the respondent and consequent assurances by the appellant, the respondent was assured and was informed that show cause notice had been issued by the Supreme Court in the Special Leave Petition got filed by him before the Supreme Court. It was further the case of the respondent that thereafter he continuously demanded the certified copy of the order which was claimed to have been passed by the Hon'ble Supreme Court. According to the respondent, he received one Regd. A.D envelope containing certain documents which included the letter of appellant, copy of the Special Leave Petition and the order alleged to have been passed by the Supreme Court. All these documents have been exhibited and are marked as C-1, C-2, C-3 and C-4 respectively. The respondent on perusing these documents prima facie suspected them to be forged and entertained serious doubts about the genuineness of these documents and after due verification it was found that all the documents were forged and no such order was passed by the Supreme Court inasmuch as no Special Leave Petition was actually filed in the Supreme Court. According to the respondent, he paid Rs. 15,000/-to the present appellant for filling Special Leave Petition in the Supreme Court as mentioned earlier and that papers received by him in that connection were forged and not genuine and that enquiry was required to be taken against the appellant. The respondent filled complaint supported by an Affidavit u/s 35 of the Advocates Act, 1961 praying that the Sanad of the appellant be suspended or the name of the appellant be removed from the State Roll of Advocate on the ground of professional misconduct.
4. The complaint u/s 35 of the Advocate Act, 1961 (hereinafter be referred to as the "Act" for the sake of brevity) was received by the State Bar Council on 11th November, 1992. The State Bar Council referred the aforesaid compliant to its Disciplinary Committee by Resolution No. 70/1993 dated 23rd January, 1993. Notice dates 28-2-1993 was issued to the parties and the first date fixed for hearing was 8th April, 1993. The case was eventually posted for framing of issues and accordingly on 26-8-1993 the following issues which are on page 457 of the file of the State Bar Council were framed by the Disciplinary Committee:-
a) Whether the respondent advocate had been engaged by the petitioner for filing of a S.L.P before the Supreme Court against the order of M.P. 14/1992 dated 8-1-1992 and for this purpose he paid sum f Rs. 15,000/- to the respondent-advocate towards his fees?
b) Whether the alleged copy of SLP and copy of Supreme Court order was sent by the respondent to the complainant?
c) Whether the copy of the SLP order and petition sent by the respondent advocate was not genuine and a fake one?
d) Whether on proof of the above allegations, the respondent advocate is guilty of proof of professional misconduct?
5. Thereafter the evidence was recorded and after appreciation of evidence the Disciplinary Committee of the State Bar Council though it fit to answer all the four issues in the affirmative and came to the conclusion that the appellant is guilty of professional misconduct and passed an order on 2-4-1994 to the effect that the SANAD of appellant shall stand suspended for a period of 7 years; however, in the event of respondent paying Rs. 15,000/- with interest at bank rate to be calculated from the date of receipt of the respondent and on a certificate of the same by the Bar Council of Madhya Pradesh the SANAD f the appellant would only remain suspended for a period of five years.
6. Thereafter, this appeal came to be preferred challenging the order of the State Bar Council punishing the appellant for professional misconduct. At the time of hearing of this appeal, learned counsel appearing for the appellant raised a preliminary contention that the Disciplinary Committee of the State Bar Council passed the impugned judgment and order beyond the period of one year as contemplated u/s 36-B of the Act and the impugned order was clearly vitiated having been passed beyond the period of limitation from the date of reference on the compliant to the Disciplinary Committee of the State Bar Council. Further in support of this submission, reliance is sought to be placed on the Division Bench decision of the Madras High Court reported in 1986(2) Madras Law Journal 362, the photostat copy of which is produced on record but the present appellant for ready reference. After going through the relevant dates we find that the aforesaid submission of learned counsel appearing for the appellant is well founded. We asked the counsel to tell us whether this contention was taken by the present appellant before the State Bar Council and we also enquired from the counsel as to whether this ground had been taken in the memo of Appeal. We were informed by the counsel and we also find that this contention was informed by the counsel and we also find that this contention was not taken before the State Bar Council and the appeal memo is also silent as far as this ground is concerned. However, since this issue is a pure question of law and goes to the root of the matter we have permitted the learned counsel to take up this contention and we feel that without entering into the merits of the case, we can dispose of this appeal on a short, but substantial question of law as to whether the impugned judgment and order dated 2-4-1994 of the Disciplinary Committee of the State Bar Council is vitiated on the ground that it is passed beyond the period of limitation of one year envisaged under section 36B(1) of the Act. For the purpose of deciding this issue it would be expedient to place certain relevant date with regard to the dates of the proceedings. It is pertinent to note that the State Bar Council actually received the complaint on 11th November 1992. The State Bar Council referred the complaint to its Disciplinary Committee u/s 35(1) of the Act on 23rd January, 1993 by its Resolution No. 70/1993 dated 23-1-1993. This resolution of the State Bar Council is on record of its file at page 39. Notice was issued to the parties on 28th February, 1993 and the first date fixed for hearing was 8th April, 1993. The impugned order was passed by the State Bar Council on 2nd April, 1994. These dates emerging from the record and proceedings of the matter before the Disciplinary Committee of the State Bar Council can hardly be disputed.
7. The learned counsel appearing on behalf of the appellant has contended that when Section 36B(1) provides that the proceedings shall be concluded within a period of one year from the date of receipt of the complaint or the date of initiation of proceedings at the instance of the State Bar Council as the case may be, then the complaint having been received by the Bar Council on 11th November, 1992 and the date on which the State Bar Council referred the complaint to its Disciplinary Committee on 23rd January, 1993 by resolution number 70/1993 the disposal of that complaint by the impugned order dated 2nd April, 1994 is admittedly beyond the period of one year. Therefore, according to the learned counsel for the appellant, the Disciplinary Committee of the State Bar Council exercised jurisdiction which it was not entitled to act inasmuch as the proceedings automatically stood transferred to the Bar Council of India since it was not concluded within the stipulated period before the Disciplinary Committee of the State Bar Council. In this context the learned counsel for the appellant has also invited our attention to the provisions of Rule 17(2) of the Bar Council of India Rules on which reliance is placed. Rule 17(2) of the Rules framed u/s 49(1) (f) of the Act contained in Part VII, pertaining to disciplinary Proceedings and Review, Chapter I, Section - A reads as under:-
Rule -17(1) XXX XXXXXX
(2) The date of receipt of the complaint or the date of the initiation of the proceedings at the instance of the State Bar Council shall be the date on which the State Bar Council refers the case for disposal to its disciplinary Committee U/s 35(1).
(3) XXX XXXXXX
(underline supplied for emphasis)
Rule 17(2) of the Bar Council of India clarifies the connotation of the terms "the date of receipt of the complaint or the date of initiation of proceedings" and it provides that the said date shall be on which the State bar Council refers the case for disposal to its Disciplinary Committee u/s 35(1) of the Act. As stated earlier, in the present case, the State Bar Council referred the complaint to its D.C. for disposal on 23rd January, 1993 and the order ultimately came to be passed on 2nd April, 1994, which is clearly and undisputedly beyond the period of limitation as prescribed u/s 36-B(1) of the Act vitiating the impugned order of D.C of the State bar Council. The provisions of section 36-B(1) of the Act read with Rule 17(2) of the Bar Council of India rules clearly show that where the matter is not decided by the D.C. of the State Bar Council within the period of one year, the order made by it is vitiated, and the proceedings get automatically and statutorily transferred to the Bar Council of India in view of the mandatory words or language of Section 36-B of the Act and the Bar Council of India is required to deal with these proceedings as if it is a proceedings u/s 36-B(2) of the Act. We are of the view that in the present case as the matter was decided by the D.C. of the State Bar Council beyond the period of one year as prescribed u/s 36-B of the Act, the impugned order passed by the Disciplinary Committee of the State's Bar Council has overstepped and transgressed the limitation prescribed by Section 36-B of the Act. In view that we are taking, we are fortified by the decision of Madras High Court in the case of Mohd. Mustafa K.A Vs. Bar Council of Tamil Nadu reported in 1986(2) Madras Law Joumal 363 (DB) the Photostat copy of which is produced by the appellant on record of the case before us. On the facts and circumstances of the case, we hold that the D.C. of the State Bar Council having decided the matter beyond period of one year prescribed u/s 36-B of the Act, the impugned order dated 2-4-1994, passed by the D.C. of the State Bar Council is vitiated and is liable to be set aside.
8. The question now is what should be further course insofar as the complaint is concerned, section 36-B of the Act itself provides that, if the State Bar Council does not decide the complaint within the period of one year then such proceedings shall stand transferred to the Bar Council of India, and the bar Council of India may dispose of the same as if it were a proceeding withdrawn for inquiry under sub-section (2) of section 36 of the Act. The natural consequence of holding that the impugned order of the State Bar Council is vitiated, inasmuch as the prescribed period of one year is over and since the complaint is not disposed of by the D.C. of the State Bar Council within the prescribed period is that the proceedings must obviously be treated as pending. Having regard to the mandatory words of section 36-B of the Act, the proceedings shall stand transferred to the Bar Council of India and proceedings must now stand atomically transferred to the Bar Council of India and are required to be proceeded with disposed of in accordance with law by the Bar Council of India. It cannot be gainsaid that the proceeding before the Bar Council of India is now the original proceeding awaiting disposal.
9. It may be mentioned that the D.C of the State Bar Council has already recorded evidence, portion of which falls within the prescribed period of one year u/s 36-B(1) of the Act; whereas some portion of which was recorded after the statutory period of one year was over. It will be for the D.C. of the Bar Council of India to consider after hearing the parties whether it would prefer to act on the evidence already recorded or whether the parties would desire to give any other or additional evidence before the D.C. of the Bar Council of India.
10. In the result the following order is, therefore, passed:-
11. The appeal is partly allowed. The impugned order dated 2-4-1994 of the D.C Indore Bench, Bar Council of Madhya Pradesh passed in complaint case no. 67/1992 is hereby quashed and set aside. The proceedings of complaint case No. 67/1992 stand transferred to the Bar Council of India and the Bar Council of India will now proceed further in accordance with law. The parties be accordingly informed about this order. There shall be no order as to costs.
Case No. 4.5
THE DISCIPLINARY COMMITTEE OF THE BAR COUNCIL OF INDIA
B.C.I.T.R CASE NO. 76/1995
"C" ... COMPLAINANT
V/s
"R" ... RESPONDENT
PRESENT:
ShriJagannathPatnaik ... CHAIRMAN
ShriAshok Deb ... MEMBER
ShriS.K.Padhi ... MEMBER
JUDGMENT
DATED 9th December, 1996
Briefly stating the facts of the case are that the complainant filed a complaint against the respondent on the allegations that he engaged the respondent to file a case in respect of the theft committed in his house. It is alleged against the respondent that the respondent gave him a draft of the complaint which was sent to the Commissioner of Police and other authorities by the complainant. The respondent also issued notice to the SHO Police Station, Lajpat Nager, New Delhi, on behalf of the complainant for supplying the enquiry report. In respect of the complaint lodged by the complainant against Mool Chand and sons who have allegedly committed the theft in the house. It is further alleged that till issuing of the notice no fees was settled between the complainant and the respondent. But the respondent told that he would charge minimum amount of fees. It is further alleged that on 8-12-1993 the complainant paid Rs. 2,000/- to the respondent and also gave his documents for filing the complaint in the court of law. Again he paid Rs. 2,000/-on 5-1-1994 for Court expenditure and preparing the case. After that the respondent asked him to being certain papers like bank account etc. In the meantime the complainant became busy, and asked the respondent not to file the case and later on asked him to return the fees of Rs. 4,000/- which he had allegedly paid to him. On these allegations the complainant came to the bar Council and sought an action against the respondent for professional misconduct.
Notice was sent to the respondent who in his reply denied the allegation and stated that the allegations in the complaint were false and he denied having received any money from the complainant. Further stated that the complainant came to him for filing the complaint case regarding the alleged theft in the house by some neighbours. As he alleged that his complaint to the police was totally ineffective, the respondent issued two notices to the police authorities without charging a single penny from the complainant. A draft of the complaint was also prepared and since heavy amount of theft was alleged to have been involved, the complainant was asked to bring the photocopy of the bank account to substantiate his charges. He was asked to pay legal fees of Rs. 2,200/- for his complaint case as well as the earlier notice issued by him. But after a few days of drafting of the complaint, the complainant came to him and told him that he did not want to file the complaint and asked for the return of the papers. The respondent asked him to sign the receipt for the said paper which the complainant refused and left his office and filed the present complaint against him.
On the bases of the pleadings following issues were framed:-
i) Whether the respondent took Rs. 4,000/- from the complainant? Whether the respondent did professional misconduct by not rendering the service to the complainant, if he has paid the alleged amount?
ii) Any other professional misconduct.
The complainant examined himself as C-1 and closed his evidence. Whereas the respondent also examined himself as RW-1 and did not adduce any other evidence.
The complainant in his statement stated that the respondent Advocate gave him a draft of notice which he typed and then sent it to the SHO which was marked as Ex C-1. He also started that one more notice was given by the respondent on behalf of the complainant on 20-8-1993 which Ex. C-II. He has stated that he paid Rs. 4,000/- to the respondent first installment of Rs. 2,000/- was paid on 18th December, 1993 and second Rs. 2,000/- was paid on 5-1-1994. He had signed the vakalatnama and gave two sets of papers of the respondent for filing the case. The respondent demanded Rs. 11,000/- as his fees. But later on he told the respondent not to file a case and demanded the money and papers back which the respondent refused to do so. The complainant has examined himself as a witness and in his statement he stated that he engaged the respondent for giving notice to the police in respect of theft committed in his house. The notice was drafted by the respondent which was given to the complainant for typing which he typed and sent the same. The copy of notice is marked as Ex. C-1. Another notice was also given by the respondent on 29th August, 1993 the copy of the same was marked as Ex. C-II. He further stated that he gave Rs. 4,000/- to the respondent towards expenses which were paid to the respondent in two installments of Rs. 2,000/- each on 18-2-1993 and 5-1-1994. The respondent demanded Rs. 11,000/- for filing a case which the complainant later on asked him not to do so and then demanded his money and papers back from the respondent which he refused. On the question put by the Committee the complainant stated that he was prepared to pay the drafting of the notices C-1 and C-2 which the committee may decide as the reasonable amount. During the course of cross-examination he has stated that he borrowed this amount of Rs. 4,000/- from his neighborur, the name of which he refused to disclose. She was a household lady and no document was executed for taking the loan from her by the complainant. He has denied the suggestion of the respondent and the respondent was prepared to return the papers provided he gives him the receipts of those papers. He also denied having paid any money to the respondent. No other witness was produced by him in support of his case.
On the other hand the respondent examined and stated that on 14-6-1993 the complainant was referred by Mr. Manoj Swarup, Advocate practicing in Supreme Court to help the complainant as he was a poor man without charging any fee. Accordingly he sent letters on his behalf to the Commissioner of Police and also gave notice to the SHO P.S. Lajpat Nagar, the copies of which have been Ex C-I and C-II. He further states that he sent an application on 28-9-1993 to the Lt. Governor, Delhi, for permission to file the complaint against the Police officers, for filling, the complaint promised to pay in January, 1994 but later on he came and demanded his papers back and when he told him to give receipts of his documents and the vakalatnama he refused to do so. He further stated that he did not charge any fee from the complainant and on the contrary incurred expenses for sending the notices and the complainant has filed a false case against him. In cross-examination by the complainant the respondent denied having received Rs. 4,000/- as alleged and also denied that he demanded Rs. 11,000/- as his professional fee for filing the complaint on behalf of the complainant. He has denied that he refused to return the papers of the complainant only after he would pay Rs. 11,000/- by way of his professional fee. The respondent also closed his evidence without producing any other witness.
The case was fixed for arguments and parties expressed their desire to file written arguments. Written arguments on behalf of the complainant were filed but respondent failed to file written arguments and the case was fixed for 22-6-1996. The matter was deliberated and we have perused the pleadings, documents and evidence on record as well as the written arguments of the complainant. The crucial point involved in this case is whether the complainant has proved his case to the effect that he paid Rs. 4,000/- to the respondent as alleged. The complainant has not produced any convincing evidence to show that he paid Rs. 4,000/- to the respondent as alleged. In his cross-examination he has given very Evasive answers of having received the money from his neighbour and refused to produce her in evidence. Even her name has not been disclosed by the complainant. In answer to the question by the committee he has agreed to pay the reasonable amount for the notices sent by the respondent and if he had paid Rs. 4,000/- to the respondent, he would have positively said that the reasonable amount be deducted from the amount of Rs. 4,000/- which he had already paid. It is not uncommon in practice when a senior colleague sends a case to anther colleague with a request for helping a client, and advocate to whom the case is sent normally help the person and in this case also we feel that the respondent might have issued notices without charging any fees from the complainant. It was also not unjustified by the respondent to take a receipt from the complainant at the time of handing over the documents which the complainant was not willing to do so for reasons best known to him.
Since the complainant has failed to establish that he paid Rs. 4,000/- to the respondent we find complaint has been filed against the respondent with male fide intention in order to harass the respondent.
We, therefore, are of the opinion that the complainant has failed to prove his case against the respondent for professional misconduct. As such the complaint is dismissed. The parties are left to bear their own costs.
Case No. 4.6
THE DISCIPLINARY COMMITTEE OF THE BAR COUNCIL OF INDIA
D.C.APPEAL NO.43/1996
"A" ... APPELLANT
V/s
"R" ... RESPONDENT
PRESENT:
ShriD.V.Patil ... CHAIRMAN
ShriS.K.Karvendhan ... MEMBER
ShriShobha N Shinde ... MEMBER
JUDGMENT
DATED 18thMay, 1997
PER CHAIRMAN
This is an interesting matter in which the parties were fighting on preliminaries rather than going deep into the issues involved. The matter involved a complaint lodged with the Bar Council of Tamil Nadu by the present appellant to the effect that certain applications in the form of complaints addressed to various authorities by the respondent amounted to "other" misconduct on the part of the respondent. When the matter was before the State Bar Council, it passed a resolution to the effect that there was prima face case of misconduct and therefore it was placed before a Committee for the final adjudication. Before the D.C. of the State Bar Council a preliminary issue was raised by the respondent that there was nonexus or proximity in his standing as a lawyer and the application made by him to various authorities and therefore the Committee could not go into the merit being sans jurisdiction. The point was upheld by the committee and by its order dated 10-8-1996 it dismissed the complainant on that date when the parties were called twice, the complainant was found to be absent as on earlier dates also. Though a vakalath had been filed on behalf of the complainant, no lawyer was present before the committee on 10-8-1996. The preliminary objection had been filed as early as on 26-4-1996. And a copy of the same ought to have been taken by the lawyer on behalf of the complainant. When a lawyer had filed his vakalath, it was his bounden duty to attend to the case of his client an follow the dates with vigilance. It was neither the fault of the committee nor of respondent if no notice was taken of the preliminary objection raised on 26-4-1996 by the complainant's said. On this scenario, the committee heard the advocate for the respondent on 10-8-1996 on the point of preliminary objection. While the said advocate was concluding his argument Sri N.Balasubramaniam, Advocate, Madras, entered the committee hall and presented a vakalath which was not is proper form. The committee requested him to make his submission on the preliminary issue after rectifying the vakalath. But Sri N. Balasubramaniam refused to argue on the ground that he had been engaged only n 5-8-1996 and was not ready with the brief. The Committee brought to his notice the facts that the matter was pending fire for a long time and that they would not allow any protraction. Sri N. Balasubramaniam said that he would apply for adjournment, which he did but the committee rejected the same as it felt that the complainant was trying to prolong the matter. Earlier to that on 27-7-1996 the case was fixed and on that day the complainant and his lawyer was absent and therefore fresh notices were again ordered to be sent to the complainant. All this information could be culled out from the proceedings maintained by the said committee.
It was contended by Sri R. Swaminathan, who appeared for the complainant before us that he was not aware of the preliminary objection and hence he wanted time. This happened on 17-5-1997. We asked the respondent's lawyer for furnish a copy of the preliminary objection to Sri R. Swaminathan. According the copy which was kept on record for the complainant and which was not so far collected by him was given to his lawyer in his presence, on 17-5-1997. It was agreed that the matter would be finally argued the next day i.e., 18-5-1997. Accordingly the parties were heard today through their counsel. Sri D.V.P.Raja, the complainant was also present. It was contended by Sri R. Swaminathan that the Bar Council of Tamil Nadu, having passed a resolution that there was a prima face case against the respondent, its D.C could not have in law dismissed the said same complaint, without hearing it on merits. It was simultaneously argued that though the respondent was called upon to give his written say on the complaint, he never filed it and hence the D.C could not have dismissed the complaint on a preliminary issue. We are not impressed by both these arguments. Merely because the Bar Council of Tamil Nadu passed a resolution that there was a prima face case to be enquired into by D.C. does not made the said committee powerless to consider the matter on the various issues raised before it even of a preliminary nature. An analogy could be drawn from criminal prosecution. Merely because a prosecuting agency comes to the conclusion that there is evidence which would be sufficient to file a charge sheet/against a suspect does not mean that the trial court cannot uphold the objection raised at preliminary stage either to its jurisdiction or the maintainability of such a prosecution and thereby discharged the accused. We are of the opinion that when the Bar Council of Tamil Nadu passed the resolution holding a prima facie case against the respondent, it did not have the benefit of the preliminary objection raised by the respondent later on. We are sure if such an objection had been raised at that stage, probably the matter would not had landed in the committee. That takes us to the second contention raised by Mr.Swaminathan, Advocate for the complainant, that the respondent did not file his written say. This argument is devoid f any merits, as it is nowhere compulsory for the respondent to file his written say. Again the anology from criminal prosecution could be drawn. As accused person need not open his month, since the initial burden of proving the case against him is on the prosecution or the complainant as the case may be. Here also the burden is on the complainant to prove misconduct against an advocate. He need not file his written say. It is sufficient if he cross examines the witnesses of the complainant and shows thereby that no case of misconduct is made out against him. He could also show the same by pointing out that there is no case which requires replying to.
The disciplinary committee of the State Bar Council dismissed the complaint mainly on the ground that the complainant had produced only a Xerox copy of document No.9 and had not filed other documents; though called upon to do so that the complainant if he felt that the matter gave rise t defamation could approach a civil or criminal or both courts and that before an act of an advocate could amount to "other" misconduct as contemplated u/s 35 of the Advocates Act, 1961 such conduct should have some nexus or proximity with discharge of professional duties. We may not go full hog with the reasoning of the said committee merely because the complainant had the doors of civil or criminal courts open is no ground not to persue a parallel remedy allowed u/s 35 of the Advocate Act. As regards "other" misconduct, it was submitted by the advocate on behalf of the respondent by citing as many as 25 cases that such act had to be some how connected with the duties of a person as an advocate. We were taken to the facts of these cases to show that acts which was submitted by the respondent's lawyer that such act should be as held in various decided cases, some how connected with his profession as an Advocate; for example soliciting advertising, setting bribe, bribing judges, purchasing decrees etc, as mentioned in detail in the written arguments submitted by him. We are not inclined to agree with this. The categories of "other" misconduct have not closed. The case law cited is only illustrative and confined to its own facts, and not exhaustive. New category of "order" misconduct could arise in the changing time. Life is not static and so also the ingenuity of a person to mis-conduct. Therefore the case law could be of a very limited value under such circumstances. There fore we are not inclined to accept the contention of the respondents lawyer that the alleged other misconduct should be one of the kinds mentioned in the cited caases.
But we could still uphold a final conclusion reached by the disciplinary Committee of a State Bar Council with a different reasoning. We have ourselves gone through the list of charges accompanying the complaint. These charges are said to have been made by the respondent against the institution namely madmai Institute of Social sciences. These complaints have been made to the University Grants Commission, to the MaduriKamaraj University C.V.I., the Ministry of Welfare, Home Secretary, Delhi, I.G.Crime, Madras, Madurai Corporation and the Deputy Registrar, T.N.Regn. Deptt. The gist of all these complaints seems to be in relation to the functioning and mismanagement in the Madurai Institute of Social Science. These authorities to whom various complaints were made were directly concerned with the mismanagement complained about and therefore it cannot be said that the complaints were made just to fight the institute or any of its officers including Dr.D.V.P.Raja. In spite of our repeated queries, Sri Swaminathan Advocate, who appeared for the complainant could not point out any particular malice in making such complaint. These complaints have been made only to the concerned authorities and not published before the general public. Their object seems to be to rectify the mismanagement, if any. It was for the authorities to undertake enquiry, which we are told, was initiated and is still going on. Sri Swaminathan Advocate, for the complainant, submitted that an Advocate has to be a Gentleman and must de deport himself in a manner befitting a gentleman, though he could not really pin point that so called ungentlemanly acts on the part of the respondent. He further contended that the respondent was not acting on behalf of his client but had undertaken a so-called clinging operation of his own. The flip said of this argument, if taken to its logical end, would mean that an advocate can act but only on behalf of his client a proposition very difficult to swallow. An advocate has also a role to play as a vigilant citizen to point out the evils prevalent in society and in institutions funded by public money or even otherwise. A perusal the author of the various complaints made to by the respondent would show that apparently the motivation was to bring out the mismanagement in the said institute. History, particularly of our freedom movement, is replete with illustrious brothers and sisters from the Bar, who fought against foreign rule and all kinds of injustice. That role has not been taken away from the members of the Bar. In-deed it would be a sad day if someone were to contend that an advocate has to be only a mouth-piece f his client and has no vice of his own. We cannot countenance such a situation. We feel that taking the entire case of the complainant as it is, no case of professional or other misconduct has been made out against the respondent and therefore proceed to dismiss this appeal
We must also mention the fact that the complaint applications made by the respondent to the various authorities were mainly against Maduri Institute of Social Science and not really against Dr. Raja. The said Institute and Dr. Raja have been alternatively shown to be the complainant in this case, including the vakalath of Sri Swaminathan, Advocate. If Dr. Raja was authorised by the said Institute of file and prosecute his complaint, no such resolution has been produced on record. In the result, we pass the following order.
ORDER
The appeal is dismissed. No order as to costs.
Case No. 4.7
THE DISCIPLINARY COMMITTEE OF THE BAR COUNCIL OF INDIA
D.C.APPEAL NO. 13/1991
"A" ... APPELLANT
V/s
"R" ... RESPONDENT
PRESENT:
ShriD.V.Patil ... CHAIRMAN
ShriS.C.Chawala ... MEMBER
ShriS.Gpakumarn Nair ... MEMBER
JUDGMENT
DATED 14thDecember, 1996
This is an appeal from the order of the State Bar Council of Andhra Pradesh dated 13-7-1991 in C.C. No. 21/1990 by which the present appellant was found guilty of professional and other misconduct and his name was struck off from the roll of Advocates maintained by the State under Provisions of Section 35(3) (d) of the Advocates Act, 1961. The allegations against the appellant were that Sri Radhakishan, S/o Shankar Singh, was the owner of some houses in Singavaram Village, Alampur (W), MahaboobnagarDistt. These houses were submerged in Srisailam Project and ultimately a compensation to the tune of Rs. 2,80,533.40 ps. Came to be deposited by the Govt. In Sub-Court, Gadwal. The present appellant had come to be engaged on behalf of the said Sri Radhakishan in O.P. No. 1788 of 1984 in which the order of compensation came to be passed. It is claimed by the present respondent that she used to accompany her husband, namely the said Radhakishan, whenever he would meet the present appellant. It is the claim of the complainant that her husband has been missing since 1985 and an advertisement to that effect had been given in local newspaper by her brother-in-law. The amount of the compensation had been sent by the Court to the Canara Bank, Mahabobnagar Branch, to be deposited into the account of Radhakishan. It was on 18-7-1986. It is further claimed that the present respondent was requesting the appellant to help her and her two sons in getting the amount withdrawn, thereby making it clear that the appellant was aware of the fact that the Radhakishan was missing. The appellant promised to help the complainant but avoided doing so on some pretext or the other. Subsequently, the complainant, on enquiries, came to know that the said amount had been withdrawn from the Bank on 28-5-1987, supposedly by her husband. Thereafter, the complainant went to the appellant and asked for the return of the amount and on his refusal sent a notice on 15-2-1990. The notice came unserved. It is further claimed that all but Rs 80,533.40ps. came to be returned to the complainant b the appellant. The remaining amount as well as the interest due on it was refused by the appellant.
The appellant has denied the entire case of the complainant. He has claimed that he does not know the complainant to be the wife of Radhakishan. Mr.Radhakishan was an illiterate person and therefore with his photograph the account was opened in Canara Bank at Mahabobnagar. He also pleaded ignorance about the whereabouts of Radhakishan. He further denied that he forged any documents or withdrew any amount. He has alleged that he came to know that the complainant was not living with her husband since 1994.
On these counter allegations, the Committee of the State Bar Council proceeded to consider the complaint. The complainant never presented herself or any other witness before the Committee. The notices sent to her came unserved. Even before us, the complainant never appeared and therefore this Committee asked the appellant to furnish the present address of the complainant. Thereafter notice of today's meeting came to be sent to her which was duly served as the record would show. In any case it is to be noted that no oral evidence has been led by the complainant in support of her allegations. The Committee of the State Bar Council proceeded to consider the matter on the basis of its own comparison of the alleged thumb impressions of Radhakishan on the original petition u/s 18 of the Land Acquisition Act and the affidavit dated 12-7-1986. The committee came to the conclusion that in spite of the fact that Radhakishan was missing since 1985, his thumb impression came to be affixed to the affidavit dated 12-7-1986 which had been presented by the appellant. The Committee also suggested that it was necessary to hand over the matter for further investigation to the nearest Magistrate or the Police Officer.
We are unable to agree with the reasoning given by the Committee of the State Bar Council for the simple reason that none of the allegations made by the complainant have been supported by substantive evidence. Merely because an advertisement came to be published in a newspaper would not lead us to the conclusion that the said Radhakishan was really missing. We have no witness before us who has deposed to the fact as to under whose authority the said advertisement came to be published. We do not have either the original scripts of the advertisement or any one claiming to have given the said advertisement. Cuttings from newspaper items cannot be made the basis of decisions dealing with lives of professionals. In the absence of any material whatsoever, the State Committee was not justified in drawing the inference that the newspaper item dated 3-2-1986 about Radhakishan's missing would not have been made unless it was correct. Unfortunately, the State Committee drew another inference which was also uncalled for. It self proceeded to compare the thumb impressions on the two documents and came to the conclusion that the thumb impression on the affidavit was not of Radhakishan. The further inference that the withdrawal of Rs. 2,79,956.40ps. on 28-5-1987 by a cheque No. 215003 was also of dubious nature was also not born out by facts. It was also surprising that the State Committee, without any evidence, proceeded to observe that the appellant had managed the complainant and had withheld her appearance before the Committee.
In view of this discussion, we are unable to agree with the view taken by the D.C. of the State Bar Council of Andhra Pradesh.
Another flaw in the proceedings was pointed to us, namely, that no issues or charges were framed in this case that was the only flaw, in normal course, we would have ourselves framed necessary charges or issues and thereafter proceeded to hear the matter, but in view of the total lack of evidence in support of the allegations, we are left with no other option than to allow the appeal and to set aside the impugned order.
In the result, D.C. Appeal No. 13/1991 filed by the appellant Advocate, Mahaboobnager, is allowed and the order dated 13-7-1991 passed by the D.C. of the State Bar Council of Andhra Pradesh in C.C. No. 21/1990 removing the name of the appellant from the State Roll of Advocates is hereby set aside. The appellant is hereby found not guilty. No order as to costs.
Sd/- Sd/- Sd/-
(D.V.PATIL) (S.C.CHAWLA) (S.GOPAKUMARAN NAIR)
Chairman Member Member
Case No. 4.8
THE DISCIPLINARY COMMITTEE OF THE BAR COUNCIL OF INDIA
D.C.APPEAL NO.24/1990
"A" ... APPELLANT
V/s
"R" ... RESPONDENT
PRESENT:
ShriDhairyasheel V. Patil ... CHAIRMAN
ShriR.S.Chahar ... MEMBER
ShriKhazan Singh ... MEMBER
JUDGMENT
DATED 4thJUNE, 1993
This is an appeal arising out of the Order dated 7-6-1990 passed by the Disciplinary Committee of the Karnataka State Bar Council in D.C.E No. 18/1989 dismissing the complaint and exonerating the respondent. The brief facts leading to the complaint were as follows.
The complainant is a son-in-law of one late Mary Raymond. The complainant was the general power of Attorney during the life time of Mrs. Raymond and was the legal representative of her estate. The respondent was the lawyer representing Mrs. Raymond and had prepared a will for her. The said will was dated 1-7-1968. It was kept in the safe custody with the respondent and the receipt to that effect, was passed by him on 5-7-1968. Subsequently Mrs. Raymond changed her lawyer and engaged Mr. George de Costa as her Advocate who requested the respondent to hand over the will, which request was refused by the respondent. This happened in 1978 where after Mrs. Raymond prepared a new will be her new lawyer on 4-1-1982. The present complainant wrote to the respondent to return the will. He again wrote on 15-4-1986. The respondent did not care to reply to either of these letters. The Complainant thought that the conduct of the respondent was mischievous and amounted to Breach of Trust which could have resulted into serious damage to Mrs. Raymond had she died intestate. Therefore the complainant filed a complaint before the State Council. By the resolution No. 110/87 dated 12-7-1987 the State Council rejected the complaint holding there in that no prima facie case was made out. The Revision Petition referred by the present Appellant was allowed by the Bar Council of India and the matter was remanded for fresh hearing. Thereafter the parties appeared and the respondent filed his say on 3-7-1989. The complainant thereafter filed rejoinder on 12-8-1989. The Disciplinary Committee of the State Council, after taking into account the submissions and the case law filed by either side proceeded to hold the respondent not responsible for any professional misconduct under Sec. 35 of the Advocates Act, 1961 as alleged by the complainant. Having aggrieved by the said order the appellant came to the Bar Council of India. We have gone through the submissions, both oral as well as written, made before us. It is not disputed that the late Mrs. Raymond had engaged the respondent to prepare her Will and to keep it in safe custody with him. There is some dispute, though not a serious one, as to the return of the Will to Mrs. Raymond in her life time or to anyone on her behalf. It is also not disputed and in fact has been held proved by the Disciplinary Committee of the State Bar Council that the complainant was entitled to demand the return of the Will of Mrs. Raymond. However we are not in agreement with the findings of the Committee that the said Will had become res nullius and that therefore the respondent was not bound to return it. The said Will was the property of Mrs. Raymond and after her death that of the complainant. Therefore he was entitled to demand its return and the respondent was duty bound to do the same. Any document, irrespective of its value, which has been given in the custody of the Advocate in his capacity as a legal adviser of a party has to be returned to the party concerned or to its representatives, particularly when repeated demands were made to do so. Not agreeing to the reply to this demand and not actually returning the Will to the complainant would definitely amount to breach of trust on the part of the lawyer concerned thereby making him liable for professional misconduct under Sec. 35 of the Advocates Act, 1961. Apart from the question whether such a document has been misused or its non return could have caused damage to the interest of the complainant, the mere fact of refusal to return it amounts to misconduct on the part of the Advocate. We also are not able to agree with the observations of the State Bar Council Committee that after the revocation the earlier Will became a mere scrap paper. In fact even the said Committee held that the respondent was bound to return the said Will even if it was a worthless paper after revocation. In fact the Committee held that the position of the respondent was in the nature of a trustee and as such the complainant was entitled to demand possession of the said Will. There was nothing confidential about the Will.
The Disciplinary Committee of the State Bar Council gave too much emphasis on the point of delay in filing the complaint. It also referred to some strained relations between the parties. We are not inclined to agree with these findings. A mere delay or strained relations between the parties per-se would not make a complaint false. These are the points which should put us on ground while appreciating the contentions raised on behalf of either side. But in a case in which most of the facts are admitted there is little to do except holding that non return of the property of the complainant does amount to professional misconduct on the part of the Advocate. The respondent tried to submit that will had been returned but no convincing evidence to that effect was produced.
In the result, we proceed to allow the appeal by setting aside the order of the Disciplinary Committee of the Karnataka State Bar Council passed on 7-6-1990 in D.C.E. No.18/89. We hold that the complainant (the present appellant) has succeeded in proving that the respondent committed professional misconduct and is thereby liable under Section 35 of the Advocates Act, 1961. We hereby proceed to hold respondent Shri "R", advocate, Bangalore, guilty of professional misconduct under Sec. 35 of the Advocates Act, 1961 and suspend him from practice for a period of one year. Order accordingly.
Sd/- Sd/- Sd/-
(DhairyasheelV.Patil) (R.S.Chahar) (Khazan Singh)
Chairman Member Member
Case No. 4.9
THE DISCIPLINARY COMMITTEE OF THE BAR COUNCIL OF INDIA
D.C.APPEAL NO.19/1993
"A" ... APPELLANT
V/s
"R" ... RESPONDENT
PRESENT:
ShriGirish D. Bhat ... CHAIRMAN
ShriBhagat Ram Sharma ... MEMBER
ShriJamshedPaediwala ... MEMBER
JUDGMENT
DATED 30thOctober, 1995
This appeal is directed against the order dated 2nd April, 1993 passed by the Disciplinary Committee of the Bar council of Himachal Pradesh in Case No. 4/1991 suspending the licence of the appellant-advocate for a period of three months. The Committee heard this appeal on 26-5-1995 at Shimla. Since Sri.JamshedPardiwala the third member could not be present on that date, therefore this appeal has been now fixed today for deliberations amongst all the three members. All the three members are present today and we have held deliberations amongst ourselves after perusing the entire original records and have considered the respective contentions of the parties. From our deliberations the following points emerge for determination in this appeal.
Point No. 1 : Whether the order under appeal is liable to be set aside?
Point No. 2 : Final order.
Findings on the above points:
Point No. 1 : Yes
Point No. 2 : Appeal accepted.
Reasons for findings:
Appellant-advocate has been held guilty vide impugned order dated 2-4-1993 passed by the Disciplinary Committee of the Bar Council of Himachal Pradesh and his licence to practice as an Advocate has been suspended for a period of three months. The allegations against the appellant as contained in the complaint filed by Smt. "R" are that on 19-3-1993 "A" Appellant identified Smt. Batni, W/o. ShriHaru wrongly in pace of Smt. Churi D/o Late Maddi at the time of attestation of general Power of Attorney executed by Smt. Churi, prito, Vidya, daughters of late Sri Maddi and Smt. Akko, widow of Sri Maddi, all residents of Village Singpura Bhagani, Thei, paonta Sahib, Distt. Sirmur, Himachal Pradesh before the Sub-Registrar, paonta Sahib, Besides this, the other allegations against the appellant are that he was habitual in disclosing the privileged communications / secrets of his clients to the opposite parties for his personal benefits and further that the appellant had been taking up briefs by misusing the names of presiding officers. There is also an allegation in the complaint that the appellant had been dealing in sale and purchase of landed property as a commission agent. In his reply before the Disciplinary Committee of the State Bar Council, the accused Advocate his denied all the allegations but has admitted that he had identified some of the ladies at the time of attestation of the General Power of Attorney, copy of which is Exbt.. P-2 in the original records. It is contended by the delinquent Advocate in his aforesaid reply that he acted in good faith at the instance of one Niranjan Singh as a document writer at Paonta Sahib who executed the said on behalf of the executants. The learned Disciplinary Committee of the State Bar Council has said nothing about the other allegations in the complaint except the allegation of wrong identification of Smt. Batni as Smt. Churi and the members of the D.C. below have held the Appellant guilty of professional misconduct on this count alone. As observed earlier we have thoughly perused the entire documentary evidence on record. The General Power of Attorney is executed by four ladies, the three i.e., Prito, Vidya and their mother Akko were present at the time of execution and attestation of the document. The allegation is that in place of Churi Smt. Batni was made to be present and participated in the act of execution and she alongwith other ladies appeared before the Sub-Registrar and the document was attested and registered and all these ladies are shown to have been identified by Sri. "A" Vakil, paontasahib and the document has been signed by Sri "A" as identifier and he has very rightly admitted this fact of identification. Now the simple question for decision remains whether Sri. "A" Appellant signed the aforesaid General Power of Attorney in good faith acting on the persuasion of Sri. Niranjan Singh, document writer or he did it with any malafide intention in order to cause wrongful loss to somebody. It is admitted case of the parties that there is no doubt about the identify of three other ladies. The Power of Attorney was also not acted upon not used to the prejudice of Sr. Churi Smt. Churi applied for cancellation of the Power of Attorney and for taking appropriate action against Sri niranjan Singh, document writer. Every Sri.Jagish Prasad, Holder of Power of Attorney of Smt. "R" has admitted this fact in his testimony before the D.C below. He has also admitted in his statement that the appellant was counsel for Sri. Khusi Ram in a suit filed by the Complainant against said Khusi Ram and the same was decided on 8-6-1990 by Sub-Judge, 1st Class, Paonta Sahib, copies of the Judgment and decree sheet are Exbt. R-1 and R-2. The complainant also made number of serious allegations against the appellant which later on were not pressed, possibly there was no evidence to prove the same. Appreciating or weighing entire matter in this background, we have no hesitation to accept the explanation of the appellant that he identified Smt. Batni as Smt. Churi in good faith on the persuasion of Sri. Niranjan Singh, Document Writer. An advocate cannot be held guilty and punished for his bonafide action even if they are wrong. It is pertinent to observe that in District and Mofussil courts, an Advocate has to perform variegated functions, as he is in direct contact with the public there and sometimes he can become victim of manipulations without being guilty in any way. The cases of professional The cases of criminal offences. The guilty intent of the delinquent Advocate has to be proved and the charge has also to be proved beyond reasonable shadow of doubt. In this case we are of the view that the means rea is absent on the part of the delinquent Advocate and there is no reason to disbelieve that the acted in good faith. Our view is supported by the Punjab and Haryana High court in Balbir Singh vs State of Punjab reported in 1995 Chandigarh Law Reporter Page 167. In this case before the Punjab High Curt the advocate was facing criminal prosecution for wrongly identifying an executant of a document. However the Punjab High Court quashed the criminal prosecution on the ground of benafide and unintentional act of the Advocate. In another judgment reported in AIR 1940 Allahabad, page 289, it has been held that negligence on the part of Advocate does not amount to professional misconduct. In view of this discussion we hold the appellant not guilty of any professional misconduct. Consequently the appeal is allowed and the impugned order dated 2-4-1993 is set aside. No order as to costs. Copies of this judgment be sent to the parties.
Sd/- Sd/- Sd/-
(Girish D. Bhatt) (Bhagat Ram Sharma) (JamshedPardiwala)
Chairman Member Member
Case No. 4.10
THE DISCIPLINARY COMMITTEE OF THE BAR COUNCIL OF INDIA
B.C.I. TR. CASE NO. 104/1990
"C" ... COMPLAINANT
V/s
"R" ... RESPONDENT
PRESENT:
ShriJagannathpatnaik ... CHAIRMAN
ShriAshok Kumar Deb ... MEMBER
ShriS.K.Padhi ... MEMBER
JUDGMENT
DATED 19th November, 1995
APPEARANCE:
For the complaint Mr. Denzil D Mello
For the Respondent None.
Per ShriS.K.Padhi, Member.
This proceeding has been initiated at the instance of a complaint made by "C". Since this application could not be disposed of within the stipulated period by the Disciplinary Committee of the Bar Council of Maharashtra and Goa, it has been transferred to the Disciplinary Committee of the Bar Council of India under section 36B of the Advocates Act, 1961.
We heard the counsel of the complainant Sri Denzil D Mello at length and perused the submissions and the evidence adduced in this case. The complainant has examined one witness i.e., himself. The respondent has not examined any witness.
The gist of the case of the complainant as revealed in his pleadings and evidence is that the respondent was acting as his counsel for a property dispute at Goa. The suit in question was filed by the complainant as plaintiff on 15th March, 1982, in the court of the Rent Controller for eviction. The complainant had made several enquiries about the fate of his case and he was informed that the matter was pending. On 10th August, 1985, the respondent informed the Registered Attorney/ representative of the complainant that the case was pending. Since it is necessary for the purpose of this case, we extract the relevant portion of this letter:-
"ShriSuvarn R. Bandekar vs. Zuari River Literate. On account of Mr. Florian Machado being the speaker at the relevant time the case was kept pending in the Dy. Collector with intimation that date will be communicated later on. However till date I have not received any communication and in the meantime the file for the purpose of calculation rent has been handed over to Mr. SayyadHarun". (Ex. C-1)
After receipt of this letter, it is stated that the complainant made enquiries in the count of Rent Controller and to his uttar surprise he found out that the case had been dismissed for default on 22-3-1984. Copy of the order sheet of the Court of the Rent Controller has been produced as Ex. C-2. It appears from the order sheet that on 6-5-1986, some Advocate appeared in the Court and it has been recorded in the order-sheet that nothing can be done further as the case has been already dismissed.
On 12-7-1986, the complainant issued a registered notice to the respondent (Ex. C-5). It is stated before us by the Counsel of the complainant that the suit which was dismissed for default was not restored subsequently by the courts and the complainant had to file a fresh suit. The respondent has filed a written statement as well as a written submission in this court. In the written statement he has admitted that he was acting as the counsel of the complainant till 10-8-1985. He has not given any explanation whatsoever as to under what circumstances the case had been dismissed for default on 22-3-1984 and what prompted him to issue letter dated 10-8-1995 informing the complainant that the case is pending and it has been stayed as one of the Defendant had become the Speaker f the Goa Assembly. The respondent's written statement contains no material facts to explain the gross negligence and callousness in his professional conduct. The stand of the complainant has been fully corroborated in his evidence and documents. The respondent as stated earlier neither adduced any evidence nor produced any documents. Taking all these facts and circumstances into consideration, the committee is of the considered view that the respondent has committed gross professional misconduct not only is not taking diligent steps in attending the court but also mislead. The client by giving wrong information that the case is pending.
It is well settled that gross negligence on the part of the Advocate which leads t suffering and harassment of the client will amount to professional misconduct. In the instant case, there is n escape from the conclusion that the respondent has committed gross professional misconduct and such we find him guilty of the same.
Now coming to the question of quantum f punishment to be imposed, there is no extenuating circumstances and the Advocate has neither expressed remorse nor apology in the written statement. On the contrary, in the written statement, he has unnecessarily tried to put the blame on the complainant. We are informed by the counsel of the complainant that the Respondent-advocate has already been punished by the Disciplinary Committee and imposed the punishment of one month's suspension for some such misconduct. The order passed in the earlier case appears to have been confirmed by the Hon'ble Supreme Court of India. A memo has been filed by the counsel of the complainant to that effect and some orders have been produced before us.
We are of the view that the punishment of suspension from practice for six months would meet the ends of justice. We, therefore, direct that the respondent be suspended for a period of six months from the date f notification by the State Bar Council of Maharashtra and Goa pursuant to out order. There will be no order as to costs.
Sd/- Sd/- Sd/-
(Jagannathpatnaik) (Ashok Kumar Deb) (S.K.Padhi)
Chairman Member Member
UNIT- V
ACCOUNTANCY FOR LAWYERS
5.1 Need for Maintenance of books
i) Introduction :
The legal profession is a noble one, and is not a business which is for gain. The legal profession is part of the administration of justice and more concerned with the peace of the society.
Though the profession is of great honour and dignity, an Advocate may take fees for the services rendered to his client. Earning money is not more important than his etiquette and service.
As per Sec 28 to 44 D of the Income Tax Act 1961, a lawyer comes under the head of - "Income from business and profession" So, if his income exceeds the limit mentioned in the Act, he is liable to pay Income Tax to the Government. He is also entitled to all deductions and other benefits conferred under the relevant Sections of the Act.
ii) Meaning and importance of Accounting:
Generally, the aim of business is to get profit. In every business, may transactions take place on daily basis. There may be purchases, sales, borrowings, payments, etc. All these numerous transactions have to be recorded in order to know the position of the business at the end of the year. So the method of accounting is very important for a business and this led to the system of book keeping or maintenance of account books.
Book keeping alone does not give a picture of the financial status of a business. So, the information from the books maintained have to be analysed for the knowing the financial status of the business. So, accounting is a system of collecting and processing financial information of a business. Appropriate decisions may be arrived at based on such information.
Accounting is defined thus : "the process of identifying, measuring and communicating economic information to permit informed judgments and decision by users of the information".
The main objective of accounting is to maintain account books, calculate the result of the operations, thereby ascertaining the financial position of the business and communicate it to the users.
As per Sec. 145 (1) of the Income Tax Act 1961, income chargeable under the head "profits and gains of business or profession" or "income from other sources" shall be computed in according with either cash or merchantile system of accounting regularly employed by the assessee.
According to sub Section (2), the Central Government may notify in the Official Gazette from time to time accounting standards to be followed by any class of asseses or in respect of any class of income.
iii) Process of Accounting :
The following functions together constitute the process of accounting:
1. Identifying the business transactions from the source documents (Vouchers, bills, etc) available.
2. Recording the transactions in the journal or Cash book or other books of accounts in a systematic manner.
3. Classifying all the transactions and posting them in the ledger, and preparing the Trial balance.
4. Summarising the information from the trial balance into the profit and loss account.
5. Analysing the profit and loss account and the balance sheet and estimating the financial position of the business.
6. Interpreting the analysed information to the users (management) to take decisions.
7. The results obtained may be communicated to the interested persons.
Thus, the account begins from the recording of the business transactions and ends with the final accounts and it is a continuing process.
iv) Maintenance of Account Books:
As per Sec. 44AA of the Income Tax Act, every person carrying on legal, medical, engineering or architectural profession or accountancy or technical cnsultancy or interior decoration or film artist should maintain books of Accounts and other documents as may enable the Assessing officer to compute his total income in accordance with the provisions of the Income Tax Act.
Such books of Accounts helps him to keep record of the amount received by him as fees from various clients, etc., and also all his expenses like conveyance, salary to staff, telephone and maintenance charges, etc.
These Account books are indispensable for calculating his income and thereby filing of returns and payment of income tax.
The following Account Books are documents should be maintained by an Advocate:
1. A cash book.
2. A journal - if the accounts are maintained according to the merchantile system of accounting.
3. Ledger.
4. Carbon copies of bills and receipts exceeding Rs. 25/-
5. Original bills and receipts regarding expenditure incurred by the person for expenses not exceeding Rs. 50/- and payment voucher prepared and signed by the person.
6. If cash book containing particulars recording expenses is maintained by him, then he need not prepare payment vouchers.
Penalty is leviable for failure to keep, maintain or retain books of accounts.
v) Advantages of maintenance of books:
1. Generally, our memory is not reliable, By keeping and maintaining Account books, all the official transactions may be recorded for future reference.
2. The trial balance gives accurate accounts which is necessary for the growth of any profession.
3. The Advocate can always know how much dues he has and how much payments he has to make which is very useful in the running of his profession.
4. An advocate can have excellent control over his assets, expenses, borrowings, etc., if he maintains proper account books.
5. Since an Advocate has to file returns of his income, his books of accounts shall be useful to him to accurately prepare his returns and calculate the tax payable by him.
6. In case the income tax authorities require the production of account books, it is feasible only if they and maintained systematically.
5.2 LEDGER
i) Introduction
The ledger is the main book containing all the accounts in which the transactions recorded in the journal or books of original entry are transferred. In a journal, each transaction is dealt with separately. The result of the various transactions for a special period cannot be known from a journal. So, the accounts which are originally in a journal or other subsidiary books are entered in the ledger.
A ledger is a book containing all the accounts which are already entered in journal or other subsidiary account books. Ledger is defined as "a book which contains a classified and permanent record of all the transactions of a business". It is also called the "Book of final entry" or "Book of secondary entry".
Generally, all the different types of transactions are processed and similar type of transactions are brought together in the ledger. All the debit side transactions may be arranged on one side, and all the credit side transactions may be arranged on one side. Preparation of balance sheet is easy from the ledger.
The ledger is in the form of a bound note book. The pages are sequentially numbed and each type of account is opened in a fresh page and continued in the next pages.
ii) Ledger Posting:
The journal entries are posted in the ledger by transferring the entries in the journal to the respective accounts opened in the ledger. By such posting, all the transactions relating to any particular account shall be grouped in one place.
iii) Procedure for posting an account which has been "debited" in the journal:
1. From the ledger take the accounts to be debited.
2. Enter the date of the transaction in the date column on the debit side.
3. Enter the name of the account credited in the journal in the particulars column on the debit side as "To . name of the account credit".
4. In the J.F. column, enter the page number of the journal on the debit side, and in the journal, the page number of the ledge on which the particular account appears is entered in the L.F. column.
5. The relevant account is entered in the "Amount" column on the debit side.
iv) Procedure for posting an account which has been "credited" in the journal:
1. From the ledger take the accounts to be credited.
2. Enter the date of the transaction in the date on the credit side column.
3. Enter the name of the account debited in the journal in the particulars column on the credit side as "By ..name of the account debited"
4. In the J.F. Column, enter the page number of the journal on the credit side, and in the journal, the page number of the ledger on which the particular account appears is entered in the L.F. column.
5. The relevant amount is entered in the "Amount" column on the credit side.
v) Model Ledger :
Name of the Account
Eg., Staff Salary A/c
Date |
Particulars |
J.F |
Amount Rs. |
Date |
Particulars |
J.F |
Amount Rs. |
Year
Month
Date |
To...
Name of the credit
Account in journal
|
|
|
Year
Month
Date
|
By ..
Name of the debit
Account in journal |
|
|
vi) Contents of the ledger:
1. Generally, the ledger is divided into 2 parts - on the left - being the debit side and on the right - being the credit side.
2. The name of the account should be mentioned in the centre of the page at the top, eg., "Staff salary", "Postage" "Office maintenance"., etc.
3. The first column namely the date column should be entered chronologically.
4. In the particulars column on the left side - For the debt entry, the word 'To' should be used.
5. In the particulars column on the right side - For the credit entry, the word 'By' should be used.
6. The name of the other account which is affected by the transaction is written in the debit side or credit side of the particulars column.
7. In the J.F - i.e., Journal folio column, the page number of the journal or any subsidiary book from where the particular entry is taken should be entered.
8. The amount is entered in this column on both the left and the right side.
vii) Advantages of maintaining a ledger:
1. Trial balance can be accurately prepared with the help of a ledger.
2. The financial position of the business concern can be easily ascertained on perusing the final accounts which can be prepared from the ledger.
3. By summarizing the various accounts, information required may be obtained from the ledger.
5.3 Types of Book-Keeping / Accounting system
Three types of book-keeping:
1. Diary system.
2. Single entry book - keeping
3. Double entry book - keeping
There are three basic systems of accounting. They are:
1. Diary system:
If the transactions are very less and needs no elaborate accounting system, they can be noted down in a small handy diary. Eg., small shops who have less transactions during the day.
At the end of the year, all the income are added and the total expenses are deducted from the income to get the profit.
But if the business is quite large, this system cannot be beneficial, since confusion will prevail at the end of the year. There is scope for forgetting entries and the result may not be accurate. Moreover, diary system cannot give any clue as to business improvement and it cannot be admissible as evidence in the Court of law.
2. Single entry book-keeping:
This is a simple method which may be followed by small business people and professionals who have on accounting knowledge. Single entry is made like the Cash book, with one column. Since it is very easy, and needs no knowledge in accountancy, professionals and budding businessmen may use this method and make a single entry book. Later on, if required, it may be posted into double entry system.
Eg., a building Advocate can make note of all his income and his expenses in the Cash book directly, and if required, double entry system accounting can be done at the end of the year.
But, if the number of transactions are more and bank transactions form part of the income and expenses, this system cannot be utilized. Since classification of accounts cannot be done in the single entry book keeping, it is difficult to prepare profit and loss account, trial balance, etc. and confusion may take place at the end. Even misappropriation or fraud cannot be found out and avoided in this type of book-keeping.
3. Double entry book-keeping:-
In this type of book-keeping, both debit and credit entries are recorded in the accounts at the same time. So, for each transaction, there are two effects debit and credit. Here, each account is divided into two parts - the left allocated for the debit and the right for the credit.
The debit and the credit aspect from the basis of double entry system. The principle of this system is that - for every debit, there must be a corresponding credit of equal amount and for every credit, there must be a corresponding debit of equal amount.
Since this system is based on accounting assumptions, concepts and principles, trial balance, profit and loss account and the final accounts can be prepared accurately. It is the most prevalent method of book-keeping as it is very convenient, methodical and scientific. Comparison of each year's accounts is possible, which is useful for the growth of the firm.
The management can rely on the information generated from the final accounts and take decisions, fix prices and prepared polices. Outsiders can peruse the financial position of the firm and there is no possibility of fraud, etc.
5.4 Trial Balance
i) Introduction:
Preparation of trial balance is the step before closing of accounts. It is for checking the accuracy of the transactions which are recorded in the various accounts with the corresponding balances. Only after checking the arithmetic accuracy of the ledger accounts, final accounts can be prepared. The statement which is prepared in this way is called the Trial balance.
Trial balance is said to be the connecting link between the ledger and the final accounts.
Trial balance is a statement which shows the debit balances and credit balances of all accounts in the ledger. According to the double entry system, every debit entry should have a corresponding credit entry. So, the total of the debit balances must agree with the total of the credit balances. Any difference between the both gives a clue that there is some error in the accounts and should be rectified before preparing the final accounts.
ii) Definition: "Trial balance is a statement, prepared with the debit and credit balances of ledger accounts to test the arithmetical accuracy of the books".
iii) Methods of preparation of trial balance:
There are two methods of preparation of a trial balance:
1. The total method in which the total amount of the debit side of the ledger and the total amount of the credit side of the ledger are recorded.
2. The Balance method in which only the balances of an account either debit or credit as per the case are recorded against their relevant accounts. As the preparation of final accounts is easy in this method, this is the most used.
iv) Format:
Trial Balance of Advocate Kishore Kumar
As on .....
Sl.No. |
Name of Account |
L.F. |
Debit Rs. |
Credit Rs. |
|
|
|
|
|
The date of preparation should be entered at the top.
In the "Name of Account" column, the list of all the ledger accounts to be entered should be recorded.
The L.F. stands for the ledger folio which has to be entered for reference.
In the debit column, the debit balance of the relevant accounts are recorded.
In the same manner, any credit balance is recorded on the Credit side.
If the last two columns are totaled at the end, they should give the same number, which means there is no error in the preparation of the trial balance. If there is any difference between the two columns, then it means that there is an error, which requires rectification.
5.5 Final Accounts
i) Introduction :
In order to know the position of the business, as to whether there is profit or loss for the year, the final accounts are prepared at the end of the year from the trial balance. So, this is a very important step in the maintenance of the accounts by a lawyer.
ii) Parts of the final accounts:
1. Trading and Profit and 2. Balance sheet
Loss Account
There are two parts in preparation of the final accounts. The first part is the trading and profit and loss account. The second is the balance sheet.
1. Trading and Profit and Loss Account
(a) Trading account:
The Trading account is required to ascertain the gross profit or loss of a business. The difference between the selling price and the cost price of goods is the gross earning or profit of the business. If the selling price of the goods is more than the cost price of the goods, there is profit. If the selling price is less than the cost of the goods purchased, there is loss.
Trading generally means buying and selling and the trading account shows the result of the buying and selling of goods.
Trading Account
For the year ending 31 March 2010
Dr. Cr.
Particulars |
Rs. |
Rs. |
|
Particulars |
Rs. |
Rs. |
To opening stock To purchase
Less returns To wages
To Packing To gross profit transferred to P&L A/c |
xxx
xxx |
xxx
xxx xxx
xxx
xxx |
|
By sales
Less returns
Closing stock |
xxx
xxx
|
xxx
xxx |
|
|
xxx |
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xxx |
On the debit side,
1. Opening stock value is the value of the stock at the beginning or the year. It is the closing stock of the previous year, which is brought forward. This value will not be there in the case of a new business.
2. Cash and credit purchases of goods after deducting any returns should be entered as net purchases.
3. Wages, carriage, duty, fuel, power, packing charges etc. are called direct expenses.
On the credit side,
1. Cash and credit sales made during the year after deducting sales returns is total sales.
2. The value of goods remaining in the hands of the trader at the end of the year is the closing stock value. This closing stock will not be there in the trial balance, the hence it is recorded in the credit side of the trial account and on the asset side of the balance sheet.
If the credit side is more, the difference between the credit side and the debit side denotes the gross profit and the trading account will be closed by transferring the gross profit to the profit and loss account.
If the debit side is more, the difference between the debit side and the credit side denotes the gross loss and the trading account will be closed by transferring the gross loss to the profit and loss account.
b) Profit and Loss Account:
From the gross profit, the trader has to incur many expenses like salary to staff, there maintenance expenses, repairs, depreciation, etc., which are called indirect expenses. If the indirect expenses are deducted from the gross profit it is the net profit. If the indirect expenses are more than the gross profit, then the result is net loss.
Profit and Loss Account
for the year ending 31.3.2010
Dr. Cr.
Particulars |
Rs. |
Particulars |
Rs. |
To indirect expenses
To net profit |
xxx
xxx
|
By gross profit
By bank interest |
xxx
xxx |
|
xxx |
|
xxx |
On the debit side:
Indirect expenses which relate to the running of the office are recorded one after the other, and they are totaled at the end.
On the credit side:
1. The gross profit is entered as the first entry.
2. Then income from any other head received by the assessee is entered - eg., interest on bank deposits, commission earned, rent received, etc.
3. The amount on the credit side is totaled.
The difference between the credit side and the debit side gives the net profit or net loss.
If the credit side is more than the debit side, the result is net profit.
If the debit side is more than the credit side, the result is net loss.
The net profit or net loss is transferred to the capital amount of the balance sheet.
2) Balance sheet :
This being the second part in the preparation of the final accounts, depicts the entire financial status of a business. The total liabilities can be known from the balance sheet and the owner's goodwill can be inferred therefrom.
All the personal accounts and the real and nominal accounts and the result from the profit and loss account are taken into account in the preparation of the balance sheet.
On the left side of the balance sheet, all liabilities and capital are recorded, and on the right side, all the assets are recorded. Balance sheet is only a statement and not an account, and not an account, and hence, the words 'to' and 'by' shall not appear.
Forms of Balance Sheet:
There are two forms of balance sheet the horizontal (Account) form and the vertical (Report) form.
1. Horizontal form of balance sheet:
In this form, the right side of the balance sheet is the asset side and the left side and the left side the liabilities side. The credit balance shall appear on the liabilities side on the left side. The debit balances shall appear on the asset side on the right side.
Balance sheet of ...
As n 31.3.2010
Liabilities |
Rs. |
Rs. |
Assets |
Rs. |
Rs. |
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2. Vertical form of balance sheet:
In this form of balance sheet, the assets and liabilities are in the form of a statement and not side by side.
Balance sheet of ..
As on 31.3.2010
Particulars |
Rs. |
Rs. |
Current assets Stock Cash in hand Total current assets Current liabilities Sundry creditors Outstanding exp. Total liabilities Add fixed assets Furniture Machinery Total fixed assets Net assets |
xxx xxx
xxx xxx
xxx xxx
|
xxx
xxx
xxx xxx |
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3) Assets and Liabilities:
1. Assets
Tangible Intangible Fictitious
Fixed Current
1. Assets: The possessions of the owner and his properties form the assets of the business. They are as follows:-
a. Tangible : Tangible means that which can be perceived by the senses i.e., seen, felt and touched - Tangible assets may be either (i) Fixed assets which cannot be converted into cash or (ii) Current assets which can be converted into cash - eg., cash in bank, sundry debtors, etc.
b. Intangible :They cannot be perceived by the senses and do not have any physical form. Eg., goodwill, trademark, patent, etc.
c. Fictitious :Losses and non recoverable expenses like the preliminary expenses are called fictitious assets.
2. Liabilities
Long term Current Contingent
The amount which a business owes to others is liabilities. Credit balance of personal and real accounts plus the capital account form the liabilities of the business.
a. Long term liabilities are liabilities which are to be repaid after a long period of time - eg., long term loans, capital.
b. Current liabilities are liabilities which have to be repaid within a year - eg., short term loans, creditors from whom goods are purchased, etc.
c. Contingent liabilities are liabilities which may or may not arise in future and hence they do not appear in the balance sheet.
The total value of the assets is always equal to the total value of the liabilities. The capital on the liability side, is the difference between assets and liabilities.
So, assets = liabilities + capital
Or
Capital = Assets - liabilities
Conclusion:
The final accounts form the most important part of the business accounts, as the assessee pays tax on the basis of the profit and loss accounts. For this purpose, he has to ascertain his net profit or loss, which can be done with the help of the profit and loss account. The trading account, along with the profit and loss account and the balance sheet are attached with the returns of income to be filed every year end.
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