RE an Advocate

Versus
Bar Council of India

Advocates Act,S.42
Bar Council of India Rules,R.8
Bar Council of India Rules,R.19
Bar Council of India Rules,Ch.1
Advocates Act,S.36
Advocates Act,S.35
Bar Council of India Rules,Ch.2

HEADNOTE :
Advocates Act, 1961 -- Section 35, Section 42 and
Section 60 -- Bar Council of India Rules, 1975 -- Part
VII, Chapter 1, Rule 8 and Part VI, Chapter II, Rule19 --
Advocate -- Professional misconduct -- Disciplinary
Action vis a vis Principles of natural justice --
Disciplinary Committee has to follow rules of natural
justice -- Straightway recording evidence without
framing charge specifying nature of misconduct
attributed and without framing issue, held, illegal.
(Para 2, 6 to 8, 10 and 12)

Advocates Act, 1961 -- Section 38 -- Supreme court

Appeal -- Professional misconduct -- Suspension of an
advocate -- Debarring from practice for 3 years --
Violation of principles of natural justice -- Supreme
Court remanded the matter to Bar Council of India.
(Para 12)

Thakkar, J. :-
A host of questions of seminal significance, not only
for the Advocate who has been suspended from
practising his profession for 3 years on the charge of
having withdrawn a suit (as settled) without the
instructions from his client, but also for the members
of the legal prefession in general have arisen in this
appeal (Appeal under section 38 of the Advocates'
Act, 1961) :-

(1) Whether a charge apprising him specifically of the

precise nature and character of the professional
misconduct ascribed to him needs to be framed.

(2) Whether in the absence of an allegation or finding

of dishonesty or mens rea a finding of guilt and a
punishment of this nature can be inflicted on him?

(3) Whether the allegations and the finding of guilt

require to be proved beyond reasonable doubt?

(4) Whether the doctrine of benefit of doubt applies?

(5) Whether an Advocate acting bona fide and in good

faith on the basis of oral instructions given by some
one purporting to act on behalf of his client, would be
guilty of professional misconduct or of an unwise or
imprudent act, or negligence simpliciter, or culpable
negligence punishable as professional misconduct?

2. The suit was a suit for recovery Rs. 30,098/- (Suit

No. 65/81 on the file of Additional City Civil Judge,
Bangalore). It appears that the complainant had
entrusted the brief to the appellant which he in his
turn had entrusted to his junior colleague
(respondent No. 2 herein) who was attached to his
office and was practising along with him at his office
at the material time. At the point of time when the
suit was withdrawn, respondent No. 2 was practising
on his own having set up his separate office. On the
docket of the brief pertaining to the suit, the appellant
made an endorsement giving instructions to
withdraw the suit as settled. A sketch was drawn on
the back of the cover to enable the person carrying
the brief to the junior colleague to locate his office in
order to convey the instructions as per the
endorsement made by the appellant. The allegations
made by the complainant against the appellant are
embodied in paragraphs 1 & 2 of his complaint : -

1. The petitioner submits that he entrusted a matter

to the Second Respondent to file a case against Shri S.
Anantharaj for recovery of a sum of Rs. 30,098/ - with
Court costs and current interest in Case No.
O.S.1965/81 on the file of the City Civil Judge at
Bangalore. The Petitioner submits that the said suit
was filed by the first respondent who was then a
Junior of the Second respondent. The petitioner
submits that the matter in dispute in the suit was not
settled at all and the first respondent without the
knowledge and without the instructions of the
petitioner has filed a memo stating that the matter in
settled out of Court and get the suit dismissed and he
has also received half of the institution court fee
within 10 days since the date of the disposal of the
suit. The petitioner submits that he has not received
either the suit amount or the refund of court fee and
he is not aware of the dismissal of the suit as settled
out of court.

2. The petitioner submits that when the case was

posted for filing of written statement itself the first
respondent has filed such a memo stating that the suit
was settled out of Court. The petitioner submits that
in fact the respondents did not even inform the
petitioner about the dates of hearing and when the
petitioner asked the dates of hearing the respondents
informed the petitioner stating that his presence is
not required in the Court since the case was posted
for filing of written statement and therefore, the
petitioner did not attend the Court on that day. The
petitioner submits that when he enquired about the
further date of hearing the respondents did not give
the date and said that they would verify the next date
of hearing since they have not attended the case since
the case was posted for filing written statement by
the defendant. The petitioner submits that when he
himself went to the Court and verified he found to his
great surprise that the suit is dismissed as settled out
of court and latter learnt that even the half of the
institution court fee is also taken by the first
respondent within 10 days.

The version of the appellant may now be unfolded :-

(1) One Gautam Chand (R.W. 3) has been a

longstanding client of the appellant. Gautam Chand
had business dealings with the plaintiff Haradara and
the Defendant Anantaraju. Besides, Anantaraju
executed an agreement dated 9-8-1980 to sell his
house property to Gautam Chand. He received earnest
money in the sum of rupees 35.000/- from Gautam
Chand. Anantaraju, however, did not execute the sale
deed within the stipulated period and during the
extended period. It was in these circumstances that
Gautam Chand (RW 3) approached the appellant for
legal advice.

(2) It is the common case of parties that Gautam

Chand introduced the complainant Haradara to the
appellant and his colleague Advocate respondent No.
2.

(3) The appellant caused the issue of notice dated 1-

6-1981 (Ex.R/ 15) on behalf of Gautam Chand
addressed to the seller Anantaraju calling upon him
to execute the sale deed. On the same date, a notice
was separately issued on behalf of the complainant
Haradara addressed to Anantaraju demanding certain
amounts due on the three 'self' bearer cheques
aggregating Rs. 30,098/- issued by Anantaraju in
course of their mutal transactions. This notice was
issued by the Advocate respondent No. 2 acting on
behalf of the complainant Haradara.

(4) Gautam Chand (RW 3) and Haradara (PM 1) were

friends. Anantaraju was their common adversary.
There was no conflict of interests as between Gautam
Chand and Haradara. Gautam Chand instructed the
appellant and his colleague respondent No. 2. Ashok
that he was in possession of the said cheques issued
by Anantaraju and that no amount was actually due
from Anantaraju to the complainant Haradara.
Gautam Chand was desirous of steps to induce
Anantaraju to execute the sale deed in his favour.

(5) A suit being O.S. No. 1965 of 1981 was instituted

on behalf of the complainant Haradara claiming an
amount of Rs. 30,000/- and odd, from the defendant
Anantaraju on the basis of the aforesaid cheques. It
was instituted on 30-6-1981. An interlocutory
application was moved on behalf of Haradara by
respondent No. 2 as his Advocate seeking the
attachment before judgment of the immovable
property belonging to the defendant Anantaraju. The
property was in fact the subject of an agreement to
sell between Anantaraju and Gautam Chand (RW 3).
The Court initially declined to grant an order of
attachment. In order to persuade the Court, certain
steps were taken through the said Gautam Chand. He
caused the publication of a notice stating that the
property in question was the subject matter of an
agreement between Anantaraju and himself and it
should not be dealt with by anyone. The publication
of this notice was relied upon subsequently on behalf
of the complainant Haradara by his advocate (
respondent No. 2), Ashok in seeking an order of
attachment. The Court accepted his submissions and
passed the order of attachment.

(6) Subsequently the defendant Anantaraju executed

the sale deed dated 27th Nov. 1981 in favour of
Gautam Chand. The object of the suit was achieved.
The sale deed was in fact executed during the
subsistence of the order of attachment concerning the
same property. The plaintiff Haradara has not
objected to it at any time. Consistently, the appellant
had reasons to believe the information of settlement
of dispute, conveyed by the three parties together on
1-2-1981.

(7) Gautam Chand (RW 3) and the complainant

Haradara acted in mutual interest and secured the
attachment of property which was the subject matter
of an agreement to sell in favour of Gautam Chand.
The suit instituted in the name of the complainant
Haradara was only for the benefit of Gautam Chand
by reference to his interest in the property.

(8) The appellant conveyed information of the

settlement of dispute by his note made on the docket.
He drew a diagram of the location of residence of the
respondent No. 2 Ashok Advocate. (Ex. B-1 A) at page
14 (Additional Documents). The papers were
delivered to respondent No. 2 Ashok Advocate by
Gautam Chand (RW 3).

(9) After satisfying himself, respondent No. 2 Ashok

advocate appeared in Court on 10-12-81 and filed a
Memo prepared in his handwriting recording the fact
of settlement of dispute and seeking withdrawal of
the suit. The Court passed order dated 10-12-1981
dismissing the suit. O.S. No. 1965 of 1981.

(10) Even though the plaintiff Haradara gained

knowledge of the disposal of suit, he did no meet the
appellant nor did he address him for over 1 1/2 years
until May, 1983. He did not also immediately apply
for the restoration of suit. An application for
restoration was filed on the last date of limitation on
11-1-1982. The application Misc. 16 of 1982 was later
allowed to be dismissed for default on 30-7-1982. It
was later sought to be revived by application Misc.
No. 581 of 1982. Necessary orders were obtained on
16-7-1982. Thus Misc. 16 of 1982 ( Application for
restoration of suit) is pending in Civil Court. '

On a survey of the legal landscape in the area of

disciplinary proceedings this scenario emerges :-

(1) In exercise of powers under Section 35 contained

in Chapter V entitled "conduct of Advocates", on
receipt of a complaint against an Advocate (or suo
motu) if the State Bar Council has 'reason to believe'
that any Advocate on its roll has been guilty of
"professional or other misconduct". Disciplinary
proceeding may be initiated against him.

(2) Neither Section 35 nor any other provision of the

Act defines the expression 'legal misconduct' or the
expression 'misconduct'.

(3) The Disciplinary Committee of the State Bar

Council is authorised to inflict punishment, including
removal of his name from the rolls of the Bar Council
and suspending him from practice for a period
deemed fit by it, after giving the Advocate concerned
and the 'Advocate General' of the State an
opportunity of hearing.

(4) While under Section 42(l) of the Act the

Disciplinary Committee has been conferred powers
vested in a Civil court in respect of certain matters
including summoning and enforcing attendance of
any person and examining him on oath, the Act which
enjoins the Disciplinary Committee to 'afford an
opportunity of hearing' (Vide Sec. 35) to the Advocate
does not prescribe the procedure to be followed at
the hearing.

(5) The procedure to be followed in an Enquiry under

Section 35 is outlined in Part VII of the Bar Council of
India Rules made under the authority of Section 60 of
the Act.

Published in Gazette of India on September 6. 1975 in

Part III Section 4( pages 1671 to 1697).

(6) Rule 8(1) of the said Rules enjoins the

Disciplinary Committee to hear the concerned parties
that is to say the complainant and the concerned
Advocate as also the Attorney General or the Solicitor
General or the Advocate General. It also enjoins that if
it is considered appropriate to take oral evidence the
procedure of the trial of civil suits shall as far as
possible be followed (1).

1. Rule 8(1)

"The Disciplinary Committee shall hear the Attorney

General or the Solicitor General of India or the
Advocate General, as the case may be or their
Advocate, and parties or their Advocate, if they desire
to be heard, and determine the matter on documents
and affidavits unless it is of the opinion that it should
be in the interest of justice to permit cross-
examination of the deponents or to take oral
evidence, in which case the procedure for the trial of
civil suits, shall as far as possible be followed."

3. At this juncture it is appropriate to articulate some

basic principles which must inform the disciplinary
proceedings against members of the legal profession
in proceedings under Section 35 of the Advocates Act,
read with the relevant Rules:

i) essentially the proceedings are quasicriminal in

character inasmuch as a Member of the profession
can be visited with penal consequences which affect
his right to practise the profession as also his honour;
under Section 35(3)(d) of the Act, the name of the
Advocate found guilty of professional or other
misconduct can be removed from the State Roll of
Advocates. This extreme penalty is equivalent of
death penalty which is in vogue in criminal
jurisprudence. The Advocate on whom the penalty of
his name being removed from the roll of Advocates is
imposed would be deprived of practising the
profession of his choice, would be robbed of his
means of livelihood, would be stripped of the name
and honour earned by him in the past and is liable to
become a social aparthied. A disciplinary proceeding
by a statutory body of the Members of the profession
which is statutorily empowered to impose a
punishment including a punishment of such immense
proportions is quasi-criminal in character :
(ii) as a logical corrolory it follows that the
Disciplinary Committee empowered to conduct the
enquiry and to inflict the punishment on behalf of the
body, in forming an opinion must be guided by the
doctrine of benefit of doubt and is under an obligation
to record a finding of guilt only upon being satisfied
beyond reasonable doubt. It would be impermissible
to reach a conclusion on the basis of preponderance
of evidence or on the basis of surmise, conjucture or
suspicion. It will also be essential to consider the
dimension regarding mens rea:

4. This proposition is hardly open to doubt or debate

particularly having regard to the view taken by this
Court in L D. Jaisinghani v. Naraindas N. Punjabi,
(1976) 1 SCC 354 : (AIR 1976 SC 373 at p. 376)
wherein Ray, CJ., speaking for the Court has observed
:-

"In any case, we are left in doubt whether the

complainant's version, with which he had come
forward with considerable delay was really truthful.
We think that, in a case of this nature, involving
possible disbarring of the concerned, the evidence
should be of a character which should leave no
reasonable doubt about guilt. The Disciplinary
Committee had not only found the appellant guilty
but had disbarred him permanently."

(Emphasis added).

(iii) in the event of a charge of negligence being

levelled against an Advocate, the question will have to
be decided whether negligence simpliciter would
constitute misconduct. It would also have to be
considered whether the standard expected from an
Advocate would have to answer the test of a
reasonably equipped prudent practitioner carrying
reasonable workload. A line will have to be drawn
between tolerable negligence and culpable negligence
in the sense of negligence which cart be treated as
professional misconduct exposing a Member of the
profession to punishment in the course of disciplinary
proceedings. In forming the opinion on this question
the standards of professional conduct and etiquette
spelt out in Chapter 2 of Part VI of the Rules
governing Advocates, framed under Section 60(3) and
Section 49(1) (g) of the Act which form a part of the
Bar Council of India Rules may be consulted. As
indicated in the preamble of the Rules, an Advocate
shall, at all times compose himself in a manner
befitting his status as an Officer of the Court, a
privileged member of the community and a
gentleman bearing in mind what may be lawful and
moral for one who is not a member of the bar may
still be improper for an Advocate and that his conduct
is required to confirm to the rules relating to the duty
to the Court, the duty to the client, to the opponent,
and the duty to the colleagues, not only in letter but
also in spirit.

It is in the light of these principles the Disciplinary

Committee would be required to approach the
question as regards the guilt or otherwise of an
Advocate in the context of professional misconduct
levelled against him. In doing so apart from
conforming to such procedure as may have been
outlined in the Act of the Rules, the Disciplinary
Authority would be expected to exercise the power
with full consciousness and awareness of the
paramount consideration regarding principles of
natural justice and fair play.

5. The State Bar Council, after calling for the

comments of the appellant in the context of the
complaint, straightway proceeded to record the
evidence of the parties. No charge was framed
specifying the nature and content of the professional
misconduct attributed to the appellant. Nor were any
issues framed or points for determination formulated.
The Disciplinary Committee straightway proceeded
to record evidence. As the case could not be
concluded within the prescribed time limit the matter
came to be transferred to the Bar Council of India
which has heard arguments and rendered the order
under appeal.

6. The questions which have surfaced are :-

(1) Whether a specific charge should have been

framed apprising the appellant of the true nature and
content of the professional misconduct ascribed to
him?

(2) Whether the doctrine of benefit of doubt and the

need for establishing the basic allegations were
present in the mind of the Disciplinary Authority in
recording the finding of guilt or in determining the
nature and extent of the punishment inflicted on him?
(3) Whether in the absence of the charge and finding
of dishonesty against him the appellant could be held
guilty of professional misconduct even on the
assumption that he had acted on the instructions of a
person not authorised to act on behalf of his client if
he was acting in good faith and in a bona fide manner.
Would it amount to lack of prudence or non-culpable
negligence or would it constitute professional
misconduct?

Now so far as the procedure followed by the State Bar

Council at the Enquiry against the appellant, is
concerned it appears that in order to enable the
concerned Advocate to defend himself properly, an
appropriate specific charge was required to be
framed. No doubt the Act does not outline the
procedure and the Rules do not prescribe the framing
of a charge. But then even in a departmental
proceeding in an enquiry against an employee, a
charge is always framed. Surely an Advocate whose
honour and right to earn his livelihood are at stake
can expect from his own professional brethren, what
an employee expects from his employer? Even if the
rules are silent, the parmount and overshadowing
considerations of fairness would demand the framing
of a charge. In a disciplinary proceeding initiated at
the level of this Court even though the Supreme Court
Rules did not so prescribe, in re: Shri 'M' an Advocate
of the Supreme Court of India 1956 SCR 811 (814) :
(AIR 1957 SC 149 at p. 151) this Court framed a
charge after making these observations :-
"We treated the enquiry in Chambers as a preliminary
enquiry and heard arguments on both sides with
reference to the matter of that enquiry. We came to
conclusion that this was not a case for discharge at
that stage. We accordingly reframed the charges
framed by our learned brother, Bhagwati, J., and
added a fresh charge. No objection has been taken to
this course. But it is as well to mention that, in our
opinion, the terms of Order IV, Rule 30 of the
Supreme Court Rules do not preclude us from
adopting this course, including the reframing of, or
adding to, the charges specified in the original
summons, where the material at the preliminary
enquiry justifies the same. The fresh enquiry before
us in Court has proceeded with reference to the
following charges as reframed and added to by us".

It would be extremely difficult for an Advocate facing

a disciplinary proceeding to effectively defend himself
in the absence of a charge framed as a result of
application of mind to the allegations and to the
question as regards what particular elements
constituted a specified head of professional
misconduct.

7. The point arising in the context of the non-framing

of issues has also significance. As discussed earlier
Rule 8(l) enjoins that "the procedure for the trial of
Civil suits, shall as far as possible be followed."
Framing of the issues based on the pleadings as in a
Civil suit would be of immense utility. The
controversial matters and substantial questions
would be identified and the attention focussed on the
real and substantial factual and legal matters in
contest. The parties would then become aware of the
real nature and content of the matters in issue and
would come to know (1) on whom the burden rests
(2) what evidence should be adduced to prove or
disprove any matter (3) to what end cross
examination and evidence in rebuttal should be
directed. When such a procedure is not adopted there
exists inherent danger of miscarriage of justice on
account of virtual denial of a fair opportunity to meet
the case of the other side. We wish the State Bar
Council had initially framed a charge and later on
framed issues arising out of the pleadings for the sake
of fairness and for the sake of bringing into forefront
the real controversy.

8. In the light of the foregoing discussion the

questions arising in the present appeal may now to be
examined. In substance the charge against the
appellant was that he had withdrawn the suit as
settled without the instructions from the
complainant. It was not the case of the complainant
that the appellant had any dishonest motive or that
he had acted in the matter by reason of lack of probity
or by reason of having been won over by the other
side for monetary considerations or otherwise. The
version of the appellant was that the suit which had
been withdrawn had been instituted in a particular
set of circumstances and that the complainant had
been introduced to the appellant for purposes of the
institution of the suit by an old client of his viz. RW 3
Gautam Chand. The appellant was already handling a
case on behalf of RW 3 Gautam Chand against RW 4
Anantharaju. The decision to file a suit on behalf of
the complainant against RW 4 Anantharaju was taken
in the presence of RW 3 Gautam Chand. It was at the
instance and inspiration of RW 3 Gautam Chand that
the suit had been instituted by the complainant, but
really he was the nominee of Gautam Chand and that
the complainant himself had no real claim on his own.
It transpires from the records that it was admitted by
the complainant that he was not maintaining any
account books in regard to the business and he was
not an Income-tax assessee. In addition, the
complainant (PW 1) Haradara himself has admitted in
his evidence that it was Gautarn Chand who had
introduced him to the appellant, and that he was in
fact taken to the office of the appellant for filing the
said suit, by Gautam Chand. It was this suit which was
withdrawn by the appellant. Of course it was
withdrawn without any written instructions from the
complainant. It was also admitted by the complainant
that he knew the defendant against whom he had
filed the suit for recovery of Rs. 30,000/- and odd
through Gautam Chand and that he did not know the
defendant intimately or closely. He also admitted that
the cheques used to be passed in favour of the party
and that he was not entitled to the entire amount. He
used to get only commission.

9. Since even on the admission of the complainant

himself he was taken to the office of the appellant for
instituting the suit, by RW 3 Gautam Chand, an old
client of the appellant whose dispute with the
defendant against whom the complainant had filed-
the suit existed at the material time and was being
handled by the appellant. The defence of the
appellant that he had withdrawn the suit in the
circumstances mentioned by him required to be
considered in the light of his admissions. The defence
of the appellant being that the suit was withdrawn
under the oral instructions of the complainant in the
presence of RW 3 Gautamchand and RW 4
Anantharaju and inasmuch as corroborated RWs 3
and 4 supported the version of the appellant on oath,
the matter was required to be examined in this
background. Assuming that the evidence of the
appellant corroborated by RWs. 3 and 4 in regard to
the presence of the complainant was not considered
acceptable, the question would yet arise as to
whether the withdrawal on the part of the appellant
as per the oral instructions of RW 3 Gautamchand
who had taken the complainant to the appellant for
instituting the suit, would amount to professional
misconduct. Whether the appellant had acted in a
bona fide manner under the honest belief that RW 3
Gautamchand was giving the instructions on behalf of
the complainant requires to be considered. If he had
done so in a bona fide and honest belief would it
constitute professional misconduct, particularly
having regard to the fact that no allegation regarding
corrupt motive was attributed or established? Here it
has to be mentioned that the appellant had acted in
an open manner in the sense that he had 'in his own
hand made endorsement for withdrawing the suit as
settled and sent the brief to his junior colleague. If the
appellant had any oblique motive or dishonest
intention, he would not have made the endorsement
in his own hand.

10. No doubt Rule 19 contained in Section 2

captioned 'Duty to the clients' provides that an
Advocate shall not act on the instructions of any
person other than his client or his authorised agent.
If, therefore, the appellant had acted under the
instructions of RW 3 Gautamchand bona fide
believing that he was the authorised agent to give
instructions on behalf of the client, would it consutute
professional misconduct? Even if RW 3 was not in fact
an authorised agent of the complainant, but if the
appellant bona fide believed him to be the authorised
agent having regard to the circumstances in which the
suit came to be instituted, would it constitute
professional misconduct? Or would it amount to only
an imprudent and unwise act or even a negligent act
on the part of the appellant? These were questions
which directly arose to which the Committee never
addressed, itself. There is also nothing to show that
the Disciplinary Committee has recorded a finding on
the facts and the conclusion as regards the guilt in full
awareness of the doctrine of benefit of doubt and the
need to establish the facts and the guilt beyond
reasonable doubt. As has been mentioned earlier, no
charge has been formulated and framed, no issues
have been framed. The attention of the parties was
not focussed on what were the real issuss was not
specifically told as to what constituted professional
misconduct and what was the real content of the
charge regarding the professional misconduct against
him.
11. In the order under appeal the Disciplinary
Committee has addressed itself to three questions viz.
:

i) whether the complainant was the person who

entrusted the brief to the appellant and whether the
brief was entrusted by the complainant to the
appellant?

ii) Whether report of settlement was made without

instruction or knowledge of the complainant?

iii) Who was responsible for reporting settlement and

instructions of the complainant?

In taking the view that the appellant had done so

probably with a view to clear the cloud of title of RW
3 as reflected in paragraph 22 quoted herein, the
Disciplinary Committee was not only, taking recourse
to conjecture, surmise and presumption on the basis
of suspicion but also attributing to the appellant a
motive which was not even attributed by the
complainant and of which the appellant was not given
any notice to enable him to meet the charge :

"It is not possible to find out as to what made PW 2 to

have done like that. As already pointed out the house
property which was under attachment had been
purchased by RW 3 during the subsistence of the
attachment. Probably with a view to clear the cloud
of. title of RW 3. PW 2 might have done it. This is only
our suspicion. Whatever it might be, it is clear that
RW 2 had acted illegally in directing RW 1 to report
settlement.

12. In our opinion the appellant has not been afforded

reasonable and fair opportunity of showing cause
inasmuch as the appellant was not apprised of the
exact content of the professional misconduct
attributed to him and was not made aware of the
precise charge he was required to rebut. The
conclusion reached by the Disciplinary Committee in
the impugned order further shows that in recording
the finding of facts on the three questions, the
applicability of the doctrine of benefit of doubt and
need for establishing the facts beyond reasonable
doubt were not realised. Nor did the Disciplinary
Committee consider the question as to whether the
facts established that the appellant was acting with
bona fides or with mala fides, whether the appellant
was acting with any oblique or dishonest motive,
whether there was any mens rea, whether the facts
constituted negligence and if so whether it
constituted culpable negligence. Nor has the
Disciplinary committee considered the question as
regards the quantum of punishment in the light of the
aforesaid considerations and the exact nature of the
professional misconduct established against the
appellant. The impugned order passed by the
Disciplinary Committee, therefore cannot be
sustained. Since we do not consider it appropriate to
examine the matter on merits on our own without the
benefit of the finding recorded by the Disciplinary
Committee of the apex judicial body of the legal
profession, we consider it appropriate to remit the
matter back to the Disciplinary Committee. As
observed by this Court in O. N. Mohindroo v. District
Judge, Delhi, Supreme Court Bar Association (197 1) 3
SCC 5: (AIR 1971 SC 107), in paragraph 23 quoted
hereinbelow, we have no doubt that the Disciplinary
Committee will approach the matter with an open
mind :

"From this it follows that questions of professional

conduct are as open as charges of cowardice against
Generals for reconsideration of the conviction of
persons convicted of crimes. Otherwise how could the
Hebron brothers get their conviction set aside after
Charles Peace confessed to the crime for which they
were charged and held guilty?"

We must explain why we consider it appropriate to

remit the matter back to the Bar Council of India. This
matter is one pertaining to the ethics of the
profession which the law has entrusted to the Bar
Council of India. It is their opinion of a case which
must receive due weight because in the words of
Hidayatullah, CJ, in Mohindroo's case (AIR 1971 SC
107 at p. 116) :

"this matter is one of the ethics of the profession

which the law has entrusted to the Bar Council of
India. It is their opinion of a case which must receive
due weight."

It appears to us that the Bar Council of India must

have an opportunity to examine the very vexed and
sensitive question which has arisen in the present
matter with utmost care and consideration, the
question being of great importance for the entire
profession. We are not aware of any other matter
where the apex body of the profession was required
to consider whether the bona fide act of an Advocate
who in good faith acted under the instructions of
someone closely connected with his client and
entertained a bona fide belief that the instructions
were being given under the authority of his client,
would be guilty of misconduct. It will be for the Bar
Council of India to consider whether it would
constitute an imprudent act, an unwise act, a
negligent act or whether it constituted negligence and
if so a culpable negligence, or whether it constituted a
professional misconduct deserving severe
punishment, even when it was not established or at
least not established beyond reasonable doubt that
the concerned Advocate was acting with any oblique
or dishonest motive or with mala fides. This question
will have to be determined in the light of the evidence
and the surrounding circumstances taking into
account the doctrine of benefit of doubt and the need
to record a finding only upon being satisfied beyond
reasonable doubt. In the facts and circumstances of
the present case, it will also be necessary to re-
examine the version of the complainant in the light of
the foregoing discussion keeping in mind the
admission made by the complainant that he was not
maintaining any books of accounts and he was not an
Income-tax assessee and yet he was the real plaintiff
in the suit for Rs. 30,000 and odd instituted by him,
and in the light of the admission that it was RW 3
Gautamchand who had introduced him to the
appellant and that he was in fact taken to the office of
the appellant, for filing the suit, by RW 3
Gautamchand. The aforesaid question would arise
even if the conclusion was reached that the
complainant himself was not present and had not
given instructions and that the appellant had acted on
the instructions of RW 3 Gautamchand who had
brought the complainant to the appellant's office for
instituting the suit and who was a close associate of
the complainant. Since all these aspects have not been
examined at the level of the Bar Council, and since the
matter raises a question of principle of considerable
importance relating to the ethics of the profession
which the law has entrusted to the Bar Council of
India, it would not be proper for this Court to render
an opinion of this matter without the benefit of the
opinion of the Bar Council of India which will accord
close consideration to this matter in the light of the
perspective unfolded in this judgment both on law
and on facts. We are reminded of the high degree of
fairness with which the Bar Council of India had acted
in Mohindroo's case. The Advocate concerned was
suspended from practice for four years. The Bar
Council had dismissed the appeal. Supreme Court had
dismissed the Special Leave Petition summarily. And
yet the whole matter was reviewed at the instance of
the Bar Council and this Court was persuaded to grant
the review. A passage extracted from Mohindroo's
case (AIR 1971 SC 116) deserves to be quoted in this
connection :

"37. We find some unusual circumstances facing us.

The entire Bar of India are of the opinion that the case
was not as satisfactorily proved as one should be and
we are also of the same opinion. All processes of the
Court are intended to secure justice and one such
process is the power of review. No doubt frivolous
reviews are to be discouraged and technical rules
have been devised to prevent persons from reopening
decided cases. But as the disciplinary committee
themselves observed there should not be too much
technicality where professional honour is involved
and if there is a manifest wrong done, it is never too
late to undo the wrong. This Court possesses under
the Constitution a special power of review and
further may pass any order to do full and effective
justice. This Court is moved to take action and the Bar
Council of India and the Bar Association of the
Supreme Court are unanimous that the appellant
deserves to have the order disbarring him from
practice set aside."

13. We have therefore no doubt that upon the matter

being remitted to the Bar Council of India it will be
dealt with appropriately in the light of the aforesaid
perspective. We accordingly allow this appeal set
aside the order of the Bar Council in so far as the
appellant is concerned and remit the matter to the
Bar Council of India. We, however, wish to make it
clear that it will not be open to the complainant to
amend the complaint or to add any further allegation.
We also clarify that the evidence already recorded
will continue to form part of the record and it will be
open to the Bar Council of India to hear the matter
afresh on the same evidence. It is understood that an
application for restoration of the suit which has been
dismissed for default in the City Civil Court at
Bangalore has been made by the complainant and is
still pending before the Court. It will be open to the
Bar Council of India to consider whether the hearing
of the matter has to be deferred till the application for
restoration is disposed of. The Bar Council of India
may give appropriate consideration to all these
questions.

14. We further direct that in case the judgment

rendered by this Court or any part thereof is reported
in Law Journals or published elsewhere, the name of
the appellant shall not be mentioned because the
matter is still subjudice and fairness demands that the
name should not be specified. The matter can be
referred to as an Advocate v. The Bar Council or in re
an Advocate without naming the appellant.

15. The appeal is disposed of accordingly. No order

regarding costs.

Order accordingly.

P.J. Ratnam vs D. Kanikaram And Others on 10 April, 1963

Equivalent citations: 1964 AIR 244, 1964 SCR (3) 1
Bench: Ayyangar, N Rajagopala
PETITIONER:
P.J. RATNAM
Vs.
RESPONDENT:
D. KANIKARAM AND OTHERS
DATE OF JUDGMENT:
10/04/1963
BENCH:
AYYANGAR, N. RAJAGOPALA
BENCH:
AYYANGAR, N. RAJAGOPALA
SINHA, BHUVNESHWAR P.(CJ)
SHAH, J.C.
CITATION:
1964 AIR 244 1964 SCR (3) 1
CITATOR INFO :
R 1985 SC 28 (30)
ACT:
Professional misconduct--Complaint--Enquiry--Advocate misappropriating client's
money--If guilty of professional misconduct--Proceeding in respect of professional
misconduct and proceeding in a criminal Court- Object of-Differentiation-
Punishment-Legal practitioners Act, 1879 (18 of 1879), ss. 12, 13--Indian Bar Councils
Act, 1926 (38 of 1926), s. 10 (2).
HEADNOTE:
The respondents and one other Kagga Veeraiah, were plaintiffs in a suit for
possession of certain lands and the appellant was their Advocate. Tim suit was
dismissed and an appeal was preferred therefrom to the Subordinate Judge. Pending
the disposal of the appeal, the court directed the sale proceeds of the standing crops
on the suit land to be deposited into court, and a sum of Rs. 1,600/- was so
deposited. The plaintiff's appeal was allowed and the defendants preferred a second
appeal to the High Court. Pending disposal of the second appeal, plaintiff's
application for withdrawing the amount was allowed by the court on furnishing
security of immovable property. A cheque petition was filed which was allowed and
thereafter a cheque for Rs. 1,452/4/- was issued in favour of the appellant. The
appellant an Advocate admitted that he had received and. had cashed the cheque on
behalf of his clients who were entitled to be paid this sum. The second appeal was
allowed by the High Court and the plaintiff's suit was dismissed, as a result of which
the plaintiffs had to refund the sum of the defendants in the suit. The plaintiffs made
a written demand on the appellant for the proceeds of the cheque that had been
cashed by him and not paid over to them. The appellant in reply claimed to have
paid over the sum to them on their passing a receipt which happened to be in the
bundle. of case-papers returned to 2
them. The respondents filed a complaint under as. 12 and 13 of the Legal
Practitioners Act. The explanation of the Advocate was called for and the District
Judge was directed to hold an enquiry and forward his report to the High Court. His
report was that the appellant's case was not unbelievable and he was entitled to the
benefit of doubt. The matter was heard by a Bench of three Judges of the High
Court, who held him guilty of professional misconduct and suspended him for five
years from practice. In this Court the appellant contended, (1) that the Bar Council
had not been consulted before the case was referred to the learned District Judge
for inquiry and report and this vitiated the legality of the entire proceedings against
the appellant. (2) That the complaint filed by the respondents on the basis of which
action was taken against the appellant was not shown to have been signed by them,
nor properly verified by them as required by the rules of the High Court. (3) That as
in substance the charge against the appellant was misappropriation of moneys
belonging to the clients, the High Court should have left the complainants to their
remedy of prosecuting the appellant and should not have proceeded to deal with
him under s. 10 of the Bar Councils Act. (4) That there was a procedural irregularity
in the mode in which the case against the appellant was conducted. (5) That one of
the plaintiffs--Kagga Veeraiah had himself admitted in his evidence that he and
others had received the proceeds of the cheque which the appellant had cashed and
that in the face of this admission the High Court was clearly wrong in finding that the
appellant had failed to pay over the money to his clients.
Held (1) that the fact that in the order of reference of the proceedings under s. 10(2)
of the Bar Councils Act, to the District Judge, there is no explicit statement that the
Bar Council had previously been consulted, is not decisive on the point. There would
be a presumption of regularity in respect of official and judicial acts and it would be
for. the party who challenges such regularity to plead and prove his case. Since, this
objection was not raised in the High Court, even when the appellant applied for a
certificate, this Court will not entertain this objection which rests wholly upon a
question of fact. (2) The complaint petition had been signed by the respondents and
properly verified and even otherwise since the High Court was competent to initiate
these proceedings suo motu under s. 10(2) of the Act, the point raised is wholly
without substance.
(3) There is a clear distinction between cases where the misconduct is one in relation
to the practitioner's duty to
3
his client and other cases where it is not so. In the former Class of cases the court
would be exercising its discretion properly if it proceeded to deal with the charge as
a piece of professional misconduct without driving the complainant to seek his
remedy in a criminal court. 80 far as the facts and circumstances of the present case
are concerned, it must be held, that the High Court was fully justified in proceeding
against the appellant under the provisions of s. 10 of the Bar Councils Act. Chandi
Charan Mitter a Pleader, In re. (1920) I.L.R. 47 Cal. 1115 and Emperor v. satish
Chandra Singha, (1927) I,L.R. 54 Cal. 721, distinguished.
Stephens v. Hills, [1842] 152 E.R. 368, referred to. (4) No complaint, that the
appellant was prejudiced by the manner in which the inquiry was conducted in the
matter of the order in which the evidence was adduced, was made either before the
District Judge or before the High Court and there is nothing on the record to suggest
that any prejudice had occurred to the appellant.
(5) The evidence of Kagga Veeraiah was correctly characterised by the High Court as
devoid of truth and the appellant, therefore, cannot rely on any admission of this
witness as evidence of the plaintiffs having received the sum.
Having regard to the gravity of the offence, there is no justification for reducing the
period of suspension. The appeal therefore, must be dismissed.
JUDGMENT:
CIVIL APPELLATE JURISDICTION:Civil Appeal No. 321 of 1962.
Appeal by special leave from the Judgment and order dated August 4, 1959 of the
Andhra Pradesh High Court in Referred Case No. 29 of 1957..
M. Rajagopalan and K.R. Choudhri, for the appellant. The respondent did not appear.
April 10. The Judgment of the Court was delivered by AYYANGAR J.--This appeal has
been filed by special leave of this Court against the judgment of
4
the High Court of Andhra Pradesh by which the appellant who is an Advocate was
held guilty of professional misconduct and had been suspended from practice for
five years. The facts relating to the misconduct charged were briefly these: The three
respondents before us and one other--Kagga Veeraiah--were plaintiffs m O.S. 432 of
1951 on the file of District Munsiff, Guntur in which a claim was made for possession
of certain lands. The appellant was the Advocate for these plaintiffs. The suit was
dismissed by the Trail Court and an appeal was filed therefrom to the Subordinate
Judge, Guntur and pending the disposal of the appeal there was a direction by the
Court that the crops standing on the suit-land be sold and the proceeds deposited
into Court. In pursuance of this order a sum of about Rs. 1,600/- was deposited into
Court-on December 19, 1951. The appeal by the plaintiffs was allowed by the
Subordinate Judge. The' unsuccessful defendants preferred a second appeal to the
High Court, but meanwhile the plaintiffs made an application for withdrawing the
amount deposited in Court. By virtue of interim orders passed by the Court they
were granted liberty, to withdraw the sum pending disposal of the second appeal in
the High. Court filed by the defendants on furnishing security of immovable
property. The security was furnished and. the withdrawal was ordered. A cheque
petition E.A. 250 of 1952 was accordingly filed which was allowed and thereafter a
cheque was issued in favour of the Advocate--the appellant before us--for Rs.
1,452/4/-, this being the sum remaining to the credit of the plaintiffs after deduction
of poundage etc. It was admitted that this cheque was cashed by the appellant on
April 23, 1953. The appellant did not dispute that. he cashed this cheque on behalf
of his clients or that the latter were entitled to be paid this sum and the charge of
professional misconduct against the
5
appellant was that the Advocate had not made this payment in spite of demands but
that on the other hand he falsely claimed to have paid them this sum.
To resume the narrative of the matters leading to these proceedings, the second
appeal before the High Court was disposed of in August, 1955 and by the judgment
of that Court the appeal was allowed and the plaintiff's suit dismissed. The plaintiffs
had therefore to refund the sum to the defendants in the suit. On February 8, 1956
the plaintiffs made a written demand on the appellant for the sum complaining that
the cheque had been cashed by him but that its proceeds had not been paid over.
On April 14, 1956 the appellant replied to this notice claiming to have paid over the
sum to them on their passing a receipt and stating.that the receipt happened to be
in the bundle of case-papers which had been returned to them. But even before the
receipt of this reply the three respondents before us filed a complaint under ss. 12
and 13 of the Legal Practitioners Act alleging the non-payment of the money and
charging the Advocate with professional misconduct in respect of it, and praying for
an enquiry into his conduct. The appellant was an Advocate and hence the complaint
was treated as one under s. 10 (2) of the Indian Bar Councils Act, 1926. The
explanation of the Advocate was called for. and thereafter the District. Judge,
Guntur was directed. to hold an inquiry into the allegations of professional
misconduct against the appellant and forward his report to the High Court. An
elaborate inquiry was thereafter held by the learned District Judge who, after
considering the .evidence, submitted a report recording his conclusion that the
appellant's case was not unbelievable" and that on that ground he was entitled to
the benefit of doubt. The matter then came up before the High Court for
consideration on this report. Some point
6
appears to have been made before the Court that certain material witnesses had not
been examined. Agreeing with the submission they directed the District Judge to
summon and examine them and this was accordingly done, their evidence was
recorded and submitted to the High Court. The matter was thereafter heard by a
Bench of 3 Judges and the learned Judges being of the opinion that the charge
against the appellant viz., that he did not pay over the amount of 'the cheque to his
clients was clearly made out, held him guilty of professional misconduct and
imposed the punishment of suspension from practice, as stated earlier. The
appellant then applied and obtained leave of this court--special leave under Art. 136
to challenge the correctness of these findings and that is how the matter is before
us.
Before proceeding further we desire to indicate the nature of the jurisdiction of this
Court in such matters and in broad outline the principles which it would observe in
dealing with them. The jurisdiction exercised by the High Court in cases of
professional misconduct is neither civil nor criminal as these expressions are used in
Arts. 133 and 134 of the Constitution. In one aspect it is a jurisdiction over an officer
of the Court and the Advocate owes a duty to the Court apart from his duty to his
clients. In another aspect it is a statutory power and we would add a duty vested in
the Court under s. 10 of the Bar Councils Act to ensure that the highest standards of
professional rectitude are maintained, so that the Bar can render its expert service
to the public in general and the litigants in particular and thus discharge its main
function of co-operating with the judiciary in the administrance of justice according
to law. This task which is at once delicate and responsible the statute vest in the
High Court and therefore the primary responsibility of ensuring it rests with it,
7
This Court is in consequence most reluctant to interfere with the orders of High
Courts in this field, save in exceptional cases when any question of principle is
involved or where this Court is persuaded that any violation of the principles of
natural justice has taken place or that otherwise there has been a miscarriage of
justice. Where however none of these factors, are present, it is not the practice of
this Court to permit the canvassing of the evidence on the record either for
reappraising it or to determine whether it should be accepted or not. The findings of
the High Court therefore on questions of fact are not open before us and this Court
would only consider whether on the facts found, the charge of professional
misconduct is established.
Learned Counsel for the appellant urged before us several grounds in support of the
appeal but we consider that none of them merits serious attention. It was first
submitted that the Bar Council had not been consulted before the case was referred
to the learned District Judge for inquiry and report and that this vitiated the legality
of the entire proceedings against the appellant. Our attention was drawn to the
terms of s. 10 (2) of the Indian Bar Councils Act reading:
"10. (2) Upon receipt of a complaint made to it by any Court or by the Bar Council, or
by any other person that any such Advocate has been guilty of misconduct, the High
Court shall, if it does not summarily reject the complaint, refer the case for inquiry
either to the Bar Council, or, after consultation with the Bar Council, to the Court of
a District Judge (hereinafter referred to as a District Court) and may of its own
motion so refer any case in which it has otherwise reason to believe that any such
advocate has been so guilty."
and the argument was that the matter could not have been remitted for inquiry to a
District Judge
8
unless the. statutory pre-condition of consultation. with the Bar Council had taken
place. It is not necessary to consider in this case whether this provision for
consultation is mandatory or not but we shall assume that it is so. There was
however no hint of this objection to the validity of the proceedings up to the stage of
the appeal in this Court. The question whether there has or has not been a
consultation is one of fact and if this point had been raised in the High Court we
would have information as to whether there had been such consultation or not, and
if not why there was none. Even when the appellant applied to the High Court for a
certificate of fitness under Art. 133 (1)(c) this objection was not suggested as a
ground upon which the validity of the proceedings would be impugned. In these
circumstances we are not disposed to entertain this objection which rests wholly
upon a question of fact. The fact that in the order of reference of the proceedings
under s. 10 (2)to the District Judge there is no explicit statement that the Bar Council
had previously been consulted is not decisive on the point. There would be a
presumption of regularity in respect of official and judicial acts and it would before
the party who challenges such regularity to plead and prove his case. It was next
contended that the complaint filed by the respondents on the basis of which action
was taken against the appellant was not shown to have been signed by them, nor
properly verified by them as required by the rules of the High Court. We consider
this objection frivolous in the extreme. It was argued by the appellant before the
High Court that there was dissimilarity between the several signatures of the three
respondents found in the petition sent by them and that to be found in the plaint
etc., of O.S. 432 of 1951 and that this was some proof that it was not the
respondents who were
9
really responsible for the petition but that someone inimically disposed towards the
appellant. The learned Judges of the High Court rejected this submission in these
words:
"For one thing, we are unable to find any such dissimilarity. Even so, that has not
much of a bearing on the question whether the respondent (appellant) had
discharged the burden viz., of proving that he had made the payment to the
petitioners. This argument would have had some force if the petitioners had not
given evidence against the respondent. Further, no such suggestion was put to any
of the plaintiffs."
This is on the question of the dissimilarity of the signatures on which rests the
argument that the respondents were not the complainants. Coming next to the point
about the verification of the complaint the matter stands thus: The three
complainants (the respondents before us) originally filed a petition on March ?6,
1956 before the District Judge but this did not bear the attestation of a gazetted
officer or other authority as required by the rules. This defect was made good by a
fresh petition which they filed before the District Judge on April 16, 1956. After the
petition was signed by the three petitioners they added a verification in these terms:
"We do hereby state that the facts stated above are true to the best of our
knowledge, information and belief,"
and then they-signed again. These three signatures, they made before the District
Judge who attested their signatures on the same day and when for-. warding this
complaint to the High Court on
10
April 18, 1956 the learned District Judge stated these facts and added:
"The petitioners appeared before me on April 16, 1956. I got them sign the petition
in my presence and I attested the same."
It is thus clear that they made three signatures in token of their signing the petition,
the verification and a further affirmation before the District Judge who attested the
same. Learned Counsel did not suggest before us that the District Judge was in error
about the identity of the parties who appeared before him and affixed the signatures
in three places in the complaint before him. It is because of these circumstances that
we have stated that this objection was most frivolous. It is only necessary to add that
seeing that the High Court is competent to initiate these proceedings suo motu
under s. 10 (2) the point raised is wholly without substance.
The next submission of learned Counsel was that as in substance the charge against
the appellant was misappropriation of money belonging to the clients, the learned
Judges of the High Court should have left the complainants to their remedy of
prosecuting the appellant and should not have proceeded to deal with him under s.
10 of the Bar Councils Act. In support of this submission learned Counsel referred us
in particular to two decisions of the Calcutta High Court reported in Chandi Charan
Mitter, a Pleader, In re (1), and Emperor v. satish Chandra Singha (2).
We do not consider that the case before us furnishes an occasion for any exhaustive
review of the decisions upon the subject or formulating finally the principles which
govern the exercise of the discretion by a Court to which a complaint is made under
s. 10 of the Bar Councils Act whether it should
(1) (1920) I.L.R.47 Cal. 1115. C2) (1927) I.L.R. 54 Cal,
721.
11
proceed under it or leave the complainant to launch a prosecution against the
advocate and await the result of such criminal proceedings.
We consider it sufficient to state this. The object of a proceeding in respect of
professional misconduct differs totally from the object of a proceeding in a criminal
court. Proceedings under the Bar Councils Act and similar statutes arc taken in order
to.ensure that the highest standards of professional conduct arc maintained at the
bar. These proceedings, though in a sense penal, arc solely designed for the purpose
of maintaining discipline and to ensure that a person does not continue in practice
who by his conduct has shown that he is unfit so to do. It is not a jurisdiction which is
exercised in aid of the Criminal law for the only question for the court to consider is
whether the practitioner has so misconducted himself as no longer to be permitted
to continue a member of an honourable and responsible profession. The object of
Criminal proceedings, on the other hand, is to enforce the law of the land and to
secure the punishment of an offender. No doubt, if a criminal prosecution is initiated
in respect of the subject matter of the complaint and the charge is held proved the
conviction might be a ground for a later proceeding under the Bar Councils Act. No
doubt, also, if the practitioner is acquitted or discharged by a criminal court on the
merits, the facts would not be reinvestigated for the purpose of rounding a charge of
professional misconduct on those very facts. The object of the two proceedings
being thus different, it is not any rule of law but merely a matter .of discretion
depending on the facts of each case as to whether the Court would straightaway
proceed to enquire into the allegation of professional misconduct or leave it to the
complainant to prosecute the practitioner and await the result of such a proceeding.
It was not suggested by Counsel for the appellant that it was incompetent for or 12
beyond the jurisdiction of the Court, 'to proceed with an enquiry in a case where the
misconduct charged against the advocate or practitioner amounted to an offence
under the ordinary criminal law. Neither of the cases relied on lay down any such
proposition and is not of much assistance to the appellant in the present case. It is
sufficient to extract the head-note to the report of the decision in Chandi Charan
Mitter (x), indicate that it bears no analogy to the case now on hand. The relevant
portion of the head- note reads:
"Where the misconduct alleged has no direct connection with the conduct of the
pleader in his practical and immediate relation to the court, ordinarily, there should
be a trial and conviction for criminal misconduct before disbarment will be Ordered."
The charge against the practitioner in that case related to a matter which had
nothing to do with his relationship to his clients, or the court, and in the
circumstances it was held that the direction would be properly exercised if the
initiation of professional misconduct proceedings awaited the result of the
prosecution. It is obvious that the case before us is far different. Emperor v. Satish
Chandra Singha (2), was also a similar case. The charge against the practitioner was
of forging court records by interpolating some words in an original plaint. In the case
now before us, however, the misconduct charged is intimately connected with and
arises out of the duty which the Advocate owed to client. This distinction between
misconduct which is intimately connected with the duties which the practitioner
owes to his clients and cases where it is not so connected as bearing upon the
exercise of the Court's discretion to proceed or not to proceed straightaway with an
inquiry into the advocate's professional misconduct was emphasised by Lord (1)
(1920) I.L.R, 47 Cal, 1115, (2) (1927)I.L. R. 54 Cal, 721,
13
Abinger in stephans (1), which dealt with case of professional misconduct against an
attorney in England. The learned Judge said:
"If the attorney has been guilty of something indictable in itself but not arising out of
the cause (in which he is engaged professionally) the Court would not inquire into
that with a view to striking him off the roll but would leave the party aggrieved to his
remedy by a criminal prosecution."
There is thus a clear distinction between cases where the misconduct is one in
relation to the practitioner's duty to his client and other cases where it is not so. In
the former class of cases the court would be exercising its discretion properly if it
proceeded to deal with the charge as a piece of professional misconduct without
driving the complainant to seek his remedy in a Criminal Court. So far as the facts of
the present case are concerned the appellant got his client's money in his hands in
the course of the proceedings of a suit in which he was engaged and the charge
against him was that he failed to repay the money. In the circumstances we consider
that the High Court was fully justified in proceeding against the appellant under the
provision of s. 10 of the Bar Councils Act.
The next complaint of the learned Counsel was that there was a procedural
irregularity in the mode in which the case against the appellant was conducted. This
was said to consist in the fact that some evidence on behalf, of the complainants
(the respondents before us)was permitted to be led after the appellant had
examined himself and it was urged that thereby the complainants had been afforded
opportunity of filling up any lacuna in their case. We consider that there is no
substance in this objection. No complaint that the appellant was
14
prejudiced by the manner in which the inquiry was conducted in the matter of the
order in which the evidence was adduced, was made either before the District Judge
who conducted the inquiry or before the High Court when the report of the District
Judge was considered. We have ourselves examined the record and find that there is
no basis for any suggestion that any' prejudice had, occurred by reason of the order
in which the witnesses were examined. It was then suggested that one of the
plaintiffs-Kagga Veeraiah--had himself admitted in his evidence before the District
Judge that he and others had received the proceeds of the cheque which the
appellant had cashed and that in the face of this admission the learned Judges of the
High Court were clearly wrong in finding that the appellant had failed to pay over the
money to his clients. A few facts have to be mentioned to appreciate this contention
as well as the answer to it. As stated earlier, there were four plaintiffs in the suit--
O.S. 432 of 1951 and plaintiffs. 1 to 3 are the complainants--now respondents 1 to 3
before us. The fourth plaintiff was one Kagga Veeraiah. It was the case of the
appellant that this money , was paid to all the four plaintiffs i.e., was paid to the
plaintiffs when all the four of them were present. It was the case of the
complainants that Kagga Veeraiah--the 4th plaintiff died in 1957. It was m these
circumstances that the appellant alleged that Kagga Veeraiah was alive and a man
claiming to be Kagga Veeraiah was produced before the District Judge who examined
him as court witness No. 7. The man who was examined did depose that the money
was paid to the plaintiffs in his presence and, no doubt, if that statement along with
the identity of the deponent was accepted the appellant's defence would have been
made out. The case of the complainants, however, was that the man examined as
court witness No. 7 was an impersonator. To prove the; death of the
15
real Kagga Veeraiah an extract from the death certificate was produced in court by
the complainants. The attention of court witness No. 7 was drawn to the fact that in
another proceeding (0. S. 732 of 1955) to which Kagga Veeraiah was a party a memo
was filed into Court stating that he was dead. The witness's explanation for this was
that as he was not available the memo to that effect was filed. The witness was
severely cross examined about his identity and in particular, questioned about the
details of the parties and other details regarding the subject-matter of O.S. 432 of
1951 and his answers were most unsatisfactory, to say the least. The Learned Judges
of the High Court considered all this evidence and recorded two alternative findings
:(1) that the person examined as C.W. 7 was not Kagga Veeraiah but was an
impersonator seemed to accord with the probabilities, and (2) that even if C.W. 7 be
in truth Kagga Veeraiah as he claimed, they would not accept his evidence as there
was not 'even a modicum of truth in his deposition' and they would unhesitatingly
reject it. The submission, however, of learned Counsel was that there was before the
High Court the thumb impression of this witness to his deposition before the District
Judge as C.W. 7 and the thumb impression of the 4th plaintiff in O.S. 432 of 1951 and
that on a comparison of these two the court should have accepted the identity of
C.W. 7 as Kagga Veeraiah--the 4th plaintiff. It is really not necessary to pursue this
matter or the details of the evidence relating to it because there is no ground at all
for interfering with the appreciation by the learned Judges of the High Court of the
credibility of this witness's deposition apart altogether from the question as to
whether Kagga Veeraiah was dead and if he was not, whether C.W. 7 was Kagga
Veeraiah. The admissions that this witness made and the ignorance that he
displayed about the proceedings in the suit stamped him as a witness of untruth and
the learned Judges correctly characterised his evidence
16
as devoid of "even a modicum of truth." The appellant cannot therefore rely on any
admission on the part of this witness as evidence of the plaintiffs having received the
sum which was admittedly in his hands.
Lastly, it was urged that the order directing the suspension of the appellant for a
period of five years was too severe and that we should reduce the period of
suspension even on the basis that the charge against the appellant be held to be
established. We can only express surprise that Counsel should have made bold to
make this submission. The appellant had got into his hands a considerable sum of
money belonging to his clients and, on the finding of the High Court, had failed to,
pay it back when demanded. Not content with this he had put forward a false
defence of payment and had even sought to sustain his defence by suborning
witnesses. In the circumstances, even, if the learned Judges of the High Court had
struck off the name of the appellant from the roll of advocates we would have
considered it a proper punishment having regard to the gravity of the offence. The
order now under appeal therefore errs, if at all, on the side of leniency and there is
no justification for the request made on behalf of the appellant.
The appeal fails and is dismissed.
3. N.B. Mirzan vs The Disciplinary Committee Of The ... on
15 September, 1971
Equivalent citations: AIR 1972 SC 46, (1972) 4 SCC 412, 1972 (4) UJ 164 SC
Author: D Palekar
Bench: S Sikri, D Palekar, A Ray
JUDGMENT
D.G. Palekar, J.
1. This is an appeal under Section 38 of the Advocates Act, 1961. The appellant, Mr.
N.B. Mirzan, was an Advocate on the roll of the Bar Council of Maharashtra. On 27th
October, 1964, respondent No. 2, who was once the client of the appellant, made
several allegations of professional misconduct against the appellant which were
referred by the State Bar Council to its Disciplinary Committee consisting of three
Advocates, one being the Committee's Chairman and the other two its members.
After a detailed inquiry into the allegations, the Disciplinary Committee came to the
conclusion that professional misconduct had been established on three counts which
involved moral turpitude. The Commitee, therefore, directed on 3rd October, 1968
that the appellant should be suspended permanently and should not be allowed to
appear before any Court, authority or person in India. He was also directed to
surrender his Sanad forthwith. From this order, an appeal was filed to the Bar
Council of India, being Appeal No 9 of 1968. The appeal was heard by the Disciplinary
Committee of the Bar Council of India consisting of a Chairman and two members.
On 30th November, 1969, by a detailed order, the Disciplinary Committee confirmed
the findings of the State Disciplinary Committee but, as regards the punishment, it
directed that the appellant be suspended from practice for a period of five years and
to pay to Respondent No. 2 a sum of Rs. 850/-within two months. It was further
directed that, if the amount was not paid, the punishment imposed by the State
Disciplinary Committee striking out the appellant's name from the roll of Advocates
would stand confirmed. It is from this Order that the present appeal has been filed.
2. Respondent No. 2, Saidur Rehman, engaged the appellant as his Advocate in an
obstructionist notice issued to him by the Presidency Small Cause Court, Bombay, in
R.A.E. Suit No. 2491 of 1961. Respondent No 2 had been introduced to the appellant
by one Noor Mohammed who was a client of the appellant. At the time of his
engagement, no fees as such were paid, but a sum of Rs. 190/-was demanded by the
appellant for court-fee stamps and that amount was paid to the appellant
Thereafter, on 26th April, 1962, the appellant demanded from respondent No. 2's
wife, Khurshid Begum, a sum of Rs. 975/-on the representation that the amount was
required for deposit in the above suit byway of rent. A Receipt was issued by the
appellant for this amount and it is Ext. A. On 16th August, 1962, the appellant
demanded a further sum of Rs 250/-representing that this amount was necessary for
payment to some Judge or officer for getting the rent bill transferred in the name of
respondent No. 2 in respect of the premises which were the subject-matter of the
above suit. In respect of this payment also, the appellant issued a Receipt dated 16th
August, 1962 which is Ext. B.
3. The constructionist notice was discharged on 13th September, 1962, the order
being in favour of respondent No. 2.
4. Thereafter, the landlord filed Suit No. 3402 of 1963 in the City Civil Court, Bombay
against respondent No. 2 and his brother for ejectment and mesne profits In this suit
also, the appellant was engaged by respondent No. 2 as his Advocate. A written
statement was filed admitting that no rent had been paid by respondent No. 2 to his
landlord from May, 1961 onwards. In view of this admission, the City Civil Court
passed an order directing respondent No. 2 to deposit in Court the amount due for
arrears of rent from May, 1961 to September, 1963. This order was passed on 25th
September, 1963. The amount was to be paid within two months from that date.
Since respondent No. 2's wife had already paid F". 975/-to the appellant on 26'h
April, 1962 and the amount was more than sufficient for making the deposit in
accordance with the order of the City Civil Court, respondent No. 2 remained under
the impression that the deposit would be made by the appellant in due course. In
January, 1964, the appellant gave a notice to respondent No. 2 to come with the
money for the purposes of deposit and this started the whole trouble, ending with
the complaint by respondent No. 2 in the State Bar Council on 27th October, 1964. It
appears that, before filing this complaint, notices were exchanged between the
parties and a settlement was brought about between the appellant and respondent
No. 2 and, under this settlement, the appellant undertook to pay to respondent No.
2 Rs. 1,000/-by instalments of Rs. 160/-per month. The appellant sent the first
instalment of Rs. 150/-by money order on 11th October, 1964 The case of the
appellant in respect of this money order, however, was that the money order had
been sent to respondent No 2, as respondent No. 2 had asked for a loan and the
appellant took pity on him in spite of the strained relations between the parties.
5. Chronologically, the three items of payments in respect of which we have before
us concurrent findings of professional misconduct are as follows :
(1) Demand and receipt by the appellant of Rs. 190/-from respondent No. 2 on the
representation that the amount was required for purchasing court fee stamps in suit
R.A.E. No. 2491/1961. There was no formal receipt issued in respect of this amount.
(2) Demand and receipt by the appellant of Rs 975/-from respondent No. 2's wife on
26th April, 1962. The Receipt issued by the appellant is Ext. A and reads as follows:
Received from Smt. Khurshid Begum sum of Rs. 975/-to be paid in small causes Court
in Suit No. 2491/62 including expenses rent and deposit in the above matter.
3. Demand and receipt by the appellant of Rs. 2.10/-from respondent No. 2 on 16th
August, 1962 Ext. is the formal Receipt given by the appellant on that date and it
reads as follows :
Received from Shri Saidul Rehman the sum of Rs 250/-for transferring the rent bill in
his name in Civil Suit No. 2491/61 of Small Causes Court.
In respect of all these three payments, respondent No. 2 alleged that these several
payments had been made to the appellant on the representations made by him
which respondent No. 2 and his wife, in their ignorance, thought were bona fide
demands But, later they realised that the demand for Rs. 190/-to purchase court fee
stamps was a false demand, because no court fee stamps were necessary to be paid
by respondent No 2 in an obstructionist notice. Similarly the second demand of Rs.
975/-for depositing the amount in court was a false demand, because no order could
possibly be passed by the Court asking an obstructionist to make deposit in Court
towards rent. The third demand of Rs. 250/-was also a false demand, because there
could be no proceedings for transferring the rent bill in the name of respondent No.
2 in the absence of any negotiations with the landlord. It was the allegation of
respondent No. 2 that taking advantage of the ignorance and illiteracy of respondent
No. 2 and his wife, the appellant had demanded and received all these amounts with
a view to misappropriate the same.
6. So for as the first count of Rs. 190/-is concerned, there was no specific denial of
the receipt of this amount by the appellant in his written statement. In his evidence
the appellant tried to explain that no specific denial was made in the written
statement, because he had stated in his written statement that for every payment
received he had given a receipt and he had, therefore, impliedly denied the demand
and receipt of Rs. 190/-since, admittedly, there was no formal receipt for it. This
explanation has been rejected by both the Disciplinary Committees. Respondent No.
2 examined Noor Mohammed as his witness in the case and Noor Mohammed has
supported respondent No. 2's statement that he had paid Rs. 190/-to the appellant.
Noor Mohammed was a former client of the appellant and it was Noor Mohammed
who had introduced respondent No. 2 to the appellant when the obstructionist
notice was issued by the Court to respondent No 2 After his engagement as
Advocate, the appellant, according to Noor Mohammed, demanded Rs 190/-for
purchasing court fee stamps and, therefore, respondent No 2 in his presence paid Rs
190/-to the appellant. In support of this, Noor Mohammed produced 4 page in his
diary in which he had noted that the appellant hid been paid Rs. 190/. for stamps.
Both the Disciplinary Committees saw no reason why Noor Mohammed a previous
client of the appellant, should give false evidence against him. Some sort of
confusion was sought to be introduced by the appellant by referring to an
endorsement on Ext. B to the effect that a sum of Rs. 190/-had been received by way
of fees and expenses in the suit. But this endorsement is made by the appellant on
18th September, 1962, i.e., after the obstructionist notice was discharged and it has
nothing to do with the payment of Rs. 190/-made to him at the beginning of his
engagement as an Advocate which, according to the State Disciplinary Committee,
was in 1961. We are, therefore, satisfied that the appellant had demanded and
received Rs. 190/-for the purchase of court fee stamps in the beginning of his
engagement as an Advocate, though, in fact, he did not have to purchase any court
fee stamps.
7. Coming to the second item of Rs. 975/-there is no dispute that the appellant had
demanded and received this amount on 26th April, 1962 from respondent No. 2's
wife, Smt. Khurshid Begum. The Receip-Ext. A itself goes to show that the amount
had been received by the appellant for making a deposit in Court against expenses
or rent. It is further admitted by the appellant that no order had been made by the
Court for the deposit of rent and it is clear to anybody knowing court proceeding
that, in a proceeding by the landlord to remove obstruction, there can be hardly any
occasion for the Court to make an order against the obstructionist to pay rent in
Court. Then again, if any such order were made by the Court, the Court would
normally give the obstructionist time to make payment and the appellant could then
have asked his client to bring the money for the deposit The obstructionist
proceeding was pending on 26th April, 1962 and it was actually disposed of in favour
of respondent No. 2 in September, 1962. Admittedly, there was no interim order to
making any deposit Therefore, there was really no occasion at all on 26th April, 1962
for the appellant making a demand for the amount from respondent No 2's wife and
receiving the same for the ostensible purpose of depositing the amount in Court. It is
obvious that he obtained this amount on a false pretext and, when such a demand is
made on a false pretext, the inference Would naturally follow that the demand had
been made with a view to missappropriate the amount.
8. Having received the amount and missappropriated the same, the appellant put
forward the defence that this amount had been actually returned to respondent No.
2 on 13th September, 1963 in the court premises when the Obstructionist notice
was discharged. In support of this, the appellant produced an alleged Receipt Ext. 2
Both the Disciplinary Committees were inclined to the view that this was a
suspicious document if not a false document. In the first place, the appellant would
not normally be expected to have such a large amount on his person on 13th
September, 1963 when the obstructionist notice was discharged. The amount had
been paid to him on 26th April, 1962 and it is impossible to accept his story that, on
every occasion when the proceedings were taken up in Court, he was carrying this
amount with him on his person, so that, if an order was made for a deposit the
amount would be immediately deposited and, if the notice was discharged, he would
be in a position to return the amount to respondent No. 2. The Receipt Ext. 2 is on a
full sheet of ledger or cartridge paper. We have seen the document ourselves and
we have no doubt at all that its very appearance shows that it is a suspicious
document. At the bottom of the paper, three thumb impressions have been
obtained one below the other, one of respondent No. 2, another of his wife, and the
third of his brother, Fazal Nakimullah. Above these thumb impressions, the Receipt is
drawn up entirely in the handwriting of the appellant himself. When respondent No.
2 was shown this document during the course of the inquiry, he was unable to say
whether the thumb impression supposed to be his was his thumb impression. No
attempt was made to prove by expert evidence that it was respondent No. 2's
thumb impression. Respondent No. 2, however, admitted that, when demanded by
the appellant, he had put his thumb impression on a blank cartridge paper as he had
to go to Moradabad, his native place, leaving his wife behind to look after the
litigation. In other words, the suggestion of respondent No. 2 was that the appellant
took his thumb impressions on blank papers, so that they could be used during his
absence for the purpose of the litigation. Ordinarily, a Receipt for payment of money
would not be written on a cartridge or ledger paper and there is force in the
evidence of respondent No. 2 that he had put his thumb impression on some blank
ledger paper for being used in the course of the proceeding in Court. Now, if Rs.
975/-were returned to respondent No 2 in the court premises themselves, there
would be no good reason why the receipt should be thumb-impressed by two other
persons be ides respondent No. 2. Respondent No. 2's wife was there and one could
understand if the appellant had taken a Receipt from her, because it was she who
had made the payment. But the strange thing about the document is that the thumb
impression of the wife Khurshid Begum has been duly cancelled by the appellant in
his own handwriting. It will be further noted thal, underneath the alleged thumb
mark of the brother Fazal Hakimullah and opposite the endorsement "L.T.I, of, ''the
original letters on which there is heavy overwriting, is the endorsement Fazal
Hakimullah. One other curious feature of this Receipt is that the thumb impressions
are supposed to be attested by two witnesses, one Khan Saheb and one Miss Lizza
pias. Khan Saheb has not been examined and it is clear from what the State
Disciplinary Committee has stated that Miss Lizza Pias was not an independent
witness. She had been seen almost every day outside the Bar Council Office when
the Stale Disciplinary Committee met in connection with the present proceedings.
She, however, admitted that she had not seen the appellant paying the amount to
respondent No. 2, nor did she read the paper she signed as a witness and further
admitted that she was not aware of the contents of that writing. Both the
Disciplinary Committee have held that Ext. 2 was not a genuine document and we
are satisfied that this finding is correct.
9. Corroboration is further found in what happened later in 1964 after dispute
started between respondent No 2 and the appellant. In about October, 1964, the
disputes, according to respondent No. 2, were settled in he presence of one Mr.
Qureshi and the appellant agreed to pay Rs 1000/-to respondent No. 2 by
instatements of Rs 150/-per month. Accordingly, the first instalment was sent to
respondent No. 2 by money order on 11th October, 1964, and it is admitted by the
appellant that he had sent the money order for Rs. 150/. He, however, explained
that respondent No. 2 along with a social worker had seen the appellant on 10th
October, 1964 and requested him or a loan. Out of pity, the appellant says, he sent
the money order in question by way of loan on 11th October, 1964. The explanation
was regarded by both the Committee as false, because under the circumstances of
the case and in vie of the bitter disputes between the parties, it was extremely
unlikely that the appellant would make any loan to respondent No 2. On the other
hand, Shri Nardan Ali Qureshi has corroborate respondent No. 2 and settled that in
his presence the dispute had been settled between the appellant and respondent
No. 2 and the appellant had agreed to pay the amount of Rs. 1000/-in instalments of
Rs. 150/-per month. The story of the loan has been rejected by both the Committees
and the evidence of respondent No. 2 and Quereshi has been accepted, in which
case it is impossible to believe that the appellant had returned the sum of Rs. 975/-
to respondent No. 2 as far back as 13th September, 1962. We, therefore, agree with
the concurrent finding of both the Committees that the appellant had demanded
and received Rs. 975/-from respondent No. 2's wife Khurshid Begum on a false
representation that the amount was required to be deposited in Court and
thereafter misappropriated the same.
10, The third item is of Rs. 250/-. There is no dispute that this amount was received
by the appellant either from respondent No. 2 or his wife. Respondent No. 2 says
that it was received from his wife during his absence. The receipt Ext. B, however, is
made in the name of respondent No. 2. The contents of the Receipt themselves go
to support respondent No. 2's case that this amount had been paid, because the
appellant had represented that the amount was required for transferring the rent
bill in respect of the premises in the name of respondent No.
2. The amount was received by the appellant on 16th August, 1962, i.e. much before
the obstructionist notice had been discharged. The appellant had great difficulty in
explaining what this Receipt meant. In the notices exchanged in 1964, the appellant
had denied altogether having received this sum of Rs. 250/-for the purpose of the
transfer of the rent bill. In the written statement before the State Disciplinary
Committee, the appellant did not categorically deny the receipt of Rs. 250/-. He
suggested there that he had been instructed by respondent No. 2 to file a
declaratory suit for transferring rent bill in his name. One does not know what this
really means. The obstructionist proceedings were still pending and one does not
know what kind of proceedings could be taken in a court of law for transferring the
rent bill. It is not the case that there were any negotiations with the landlord for
transferring the rent bill in the name of respondent No.
2. Then again, if any such suit was to be filed, the appellant and his client would have
thought about it only after the obstructionist proceedings had come to an end and
not in August, 1962. In his evidence, the appellant stated that this amount of Rs.
250/-had been paid to him by respondent No. 2 of his own accord and the appellant
had never suggested that any declaratory suit was required to be filed. This is rather
a tall story. Seeing that the story was unconvincing, the appellant changed his case
later and started that this sum of Rs. 250/-was paid to him towards the court-fees in
respect of the intended declaratory suit, his fees and other pocket expenses. That
explanation is also false, because it is nobody's case that any such declaratory suit
was ever filed. It is, hence, clear that the appellant was not at all able to explain why
he demanded this amount of Rs. 250/-. The conclusion is irresistible that he must
have represented that this amount was required to pay somebody for the purposes
of transferring the bill of the suit premises in the name of respondent No. 2, knowing
quite well that it was impossible to secure a transfer of the rent bill in legal
proceedings in court. The amount had been screwed out by the appellant on a false
representation for the purposes of misappropriation. In our opinion, the findings of
both the Disciplinary Committees were right and unexceptionable. Normally, this
Court does not entertain an appeal from a concurrent finding of facts. We have,
however, gone through the facts to satisfy ourselves that no injustice has been done.
11. The State Disciplinary Committee had permanently debarred the appellant from
practising as an Advocate, but, in appeal, the Disciplinary Committee of the Bar
Council of India has taken a more lenient view and suspended the appellant from
practice for a period of five years on condition that he pays respondent No. 2 Rs.
850/-within two months. No argument was addressed to us on the question of
punishment. Therefore, it is not necessary to consider the point.
In the result, the appeal fails and is dismissed with costs

Bar Council of Maharashtra v. M.V. Dabholkar AIR 1976 SC 242.

In this case Justice Krishna Iyer Observed on the idea of advertising of legal
services in the following words, " The canons of ethics and property for the legal
profession totally taboo conduct by way of soliciting, advertising, scrambling and
other obnoxious practices, subtle or clumsy, for betterment of legal business.
Law is not trade, briefs no merchandise and to the leaven of commercial
competition or procurement should not vulgarize the legal profession.

It is the duty of an advocate to fulfill the above mentioned duties to his

colleagues. The object of framing this rule is to safeguard the interest of
profession itself. Advocacy is and profession and not a business. The restriction
put on this profession under the said rule is Constitutional and not violative to
Article 19 (1) (g) and Article 21 of the Constitution. Moreover such restrictions
are just , fair , and reasonable and not arbitrary, fanciful and evasive. It satisfy
the twin test given in Article 14 of Constitution. i.e. the classification is just, fair
and reasonable and there is Nexus between the object and classification. The
object is to achieve the efficiency of advocates to the legal profession, to
safeguard the interest of both advocate as well as public at large and the better
administration of Justice for which the legal profession is a partner with the
judiciary.
Judgment Text
RAY, C.J. (for himself and Khanna, Mathew, Gupta and Fazal Ali, JJ.)

These appeals were placed before this Bench for consideration of the question
whether the Bar Council of a State is "a person aggrieved" to maintain an appeal
under Section 38 of the Advocates Act, 1961 hereinafter called the Act.

2. The Bar Council of Maharashtra on August 8, 1964 considered a complaint

received from the High Court against the respondents and resolved that the
complaint received from the High Court against the respondents be referred to
the disciplinary committee. Another resolution was passed by the Bar Council of
Maharashtra on the same day whereby Messers Hotchand Advani, R. W. Adik and
S. C. Chagla were elected as members of the disciplinary committee to enquire
into the complaints.

3. The aforesaid disciplinary committee met on March 19, 1965 and heard the
advocates for the Bar Council of the State of Maharashtra. After Considering the
papers before the committee, it directed the Registrar to issue notices under
Section 35(2) of the Act "parties concerned including the Advocate-General". The
Committee also expressed the opinion that "there is a prima facie case of
professional misconduct".

4. The Bar Council of Maharashtra on May 18, 1965 issued notices under Section
35 of the Act to the respondents. The notice was described as a suo motu inquiry
against the respondents. The notice proceeded with the recital that it came to the
notice of the Bar Council of Maharashtra that the respondents stood at the
entrance of the court house at the Presidency Magistrate's Court, Esplanade, Fort
Bombay and solicited work and generally behaved at that place in an undignified
manner and the said acts amounted to professional and/or other misconduct
and the Bar Council constituted disciplinary committee and the inquiry was
entrusted to the committee consisting of Messrs H. G. Advani, R. V. Adik and S. C.
Chagla.

5. The said disciplinary committee heard evidence upto August 31, 1968, the Bar
Council of Maharashtra passed a resolution requesting the aforesaid disciplinary
committee to proceed with the inquiry which was pending before them prior to
March 31, 1969.
6. The disciplinary committee of the Bar Council of Maharashtra on June 27,
1973 found the respondents guilty of conduct which seriously lowered the
reputation of the Bar in the eyes of the public. The disciplinary committee
directed that the respondents would stand suspended from practising as
advocates for a period of three years. The suspension orders were to be
operative from August 1, 1973.

7. The respondents preferred appeals before the Bar Council of India. In these
appeals, the respondents impleaded the Bar Council of Maharashtra as
respondents. The disciplinary committee of the Bar Council of India on April 14,
1978 allowed the appeals and set aside the orders of the disciplinary committee
of the Bar Council of Maharashtra. While setting aside the orders of the
disciplinary committee of the Bar Council of Maharashtra, the disciplinary
committee of the Bar Council of India stated as follows :

The Bar Council of Maharashtra has not appeared even though they started the
proceedings suo motu and we do not pass any order as to costs and we direct
each party will bear their costs. However, We have gone through the evidence
ourselves and also the same has been placed in detail by the appellants All that
we can say is that we expected the Bar Council of Maharashtra to be represented
in the appeal because proceeding were started suo motu.

The Bar Council of Maharashtra v. M.V. Daholkar that the vital role of the lawyer
depends profession is to promote the administration of justice. As monopoly to
legal profession has been statutorily granted by the nation, it obligates the
lawyer to observe scrupulously those norms which make him worthy of
confidence of community in him as a vehicle of social justice. “Law is not trade
briefs-no merchandise.” Legal profession is monopolistic in character and the
monopoly itself inheres certain high traditions which its members are expected
to upkeep and uphold. As misconduct has not been defined, meaning in common
parlance would guide its meaning. The term has to be examined with the lens of
propriety, decency and worthy living and the fitness of the person to rolls of an
advocate”.
Both in law and in ordinary speech, the term “misconduct” uses an act
done willfully with a wrong intention and as applied to people, it includes
unprofessional acts even though such acts are not wrongful. Conduct of an
advocate who was partly to racket in defrauding and cheating aspirant loanees
amounts to professional and order of the Disciplinary Committee of the Bar
Council is imposing the penalty of removal of the name of advocate found guilty
of advocates.

The natural meaning of the works “professional or other misconduct Section 35

of the Act is misconduct in a professional or other capacity. --- of the Legal
Practitioners Act classified misconduct of a lawyer under While clauses (a) to
(e) deal with various forms of unprofessional clause (f) is very widely worded,
the words being for “any other rea cause”.
The words ‘professional or other misconduct’ occurring in Section 10, Indian Bar
Councils Act, have now been repealed in the present section.
In the above noted case the legal practitioner induced his client to pay him Rs.75
as the fee of the senior lawyer to be engaged in a criminal appeal. No such lawyer
was engaged and the money was not claimed by the legal practitioner. The
criminal appeal was compromised without the knowledge and consequently
without the consent of the client. The sum of Rs. 1,500 being in consideration for
the compromise was retained by the legal practitioner. It was held that the
charge of misconduct was amply framed against the legal practitioner but the
conduct complained of did not amount to any specific criminal offence.
Nevertheless the court took a lenient view of the matter and suspended the legal
practitioner from practice for a period of only six months.
Professional misconduct authorizing suspension or disbarment is not confined to
misconduct in the attorney’s relation to his client, but includes as well
misconduct towards the court or a judge in or out of court so is deliberate
disobedience of a mandate or order of court.
Where the counsel ha knowledge of previous petition having been filed and
conceals the fact from the court it amount fraud played on court .

4. PETITIONER: V. C. RANGADURAI Vs. RESPONDENT: D. GOPALAN AND ORS.

DATE OF JUDGMENT04/10/1978
BENCH: KRISHNAIYER, V.R.
BENCH: KRISHNAIYER, V.R. DESAI, D.A. SEN, A.P. (J)
CITATION: 1979 AIR 281 1979 SCR (1)1054 1979 SCC (1) 308
CITATOR INFO : R 1983 SC 990 (10) R 1985 SC 28 (30)
ACT: Judicial legislation, meaning of-Punishment under Sec. 35(3) of the Advocates Act, 1961, applying the
principle of legislation.
Appeal-Appeal under Sec. 38 of the Advocates Act, 1961, interference of the Supreme Court.
Disciplinary proceedings-Disciplinary proceedings under the Advocates Act, 1961-Nature and proof of.
Professional ethics of a member of legal fraternity- Relations between a lawyer and a client explained.
HEADNOTE:
The appellant was found guilty of gross professional misconduct by the Disciplinary Committee II of the State Bar
Council, Tamil Nadu and was therefore, debarred from practice as an Advocate for a period of six years. In
appeal, the Bar Council of India upheld the said findings but reduced the period of suspension to one year.
Dismissing the appeal, the Court
Per Iyer, J. (on behalf of Desai, J. and himself) ^
HELD: 1. Punishment has a functional duality-deterrence and correction. But conventional penalties have their
punitive limitations and flaws, viewed from the reformatory angle. A therapeutic touch, a correctional twist, and
a locus penitentiae, may have rehabilitative impact if only Courts may experiment unorthodoxly but within the
parameters of the law. [1057 F-G; 1058 E]
When the Constitution under Art. 19 enables professional expertise to enjoy a privilege and the Advocates Act
confers a monopoly, the goal is not assured income but commitment to the people whose hunger, privation and
hamstrung human rights need the advocacy of the profession to change the existing order into a Human
Tomorrow. [1058 B-C]
Justice has correctional edge a socially useful function especially when the delinquent is too old to be pardoned
and too young to be disbarred. Therefore, a curative not cruel punishment has to be designed in the social
setting of the legal profession. Punishment for professional misconduct is no exception to this 'social justice' test.
[1058 A, E]
In the present case, therefore, the deterrent component of the punitive imposition persuades non-interference
with the suspension from practice reduced 'benignly at the appellate level to one year. From the correctional
angle a gesture from the Court may encourage the appellant to turn a new page. He is
1055
not too old to mend his ways. He has suffered a litigative ordeal, but more importantly he has a career ahead. To
give him an opportunity to rehabilitate himself by changing his ways, resisting temptations and atoning for the
serious delinquency, by a more zealous devotion to people's cause like legal aid to the poor may be a step in the
correctional direction.[1058 E-G]
2. Judicial legislation is not legislation but application of a given legislation to new or unforeseen needs and
situations broadly falling within the statutory provision. In that sense, interpretation is inescapably a kind of
legislation. Legislation is not legislation stricto sensu but application and is within the Court's province. So viewed
the punishment of suspension under Sec. 35(3) of the Advocates Act serves two purposes-injury and expiation.
The ends of justice will be served best in this case by directing suspension plus a provision for reduction on an
undertaking to this Court to serve the poor for a year. Both are orders within this Court's power [1060 F-H]
3. Section 35(3) has a mechanistic texture, a set of punitive pigeon holes, but words grow in content with time
and circumstance, that phrases are flexible in semantics and the printed text is a set of vessels into which the
Court may pour appropriate judicial meaning. That statute is sick which is allergic to change in sense which the
times demand and the text does not countermand. That Court is superficial which stops with the cognitive and
declines the creative function of construction. 'Quarrying' more meaning is permissible out of Sec. 35(3) and the
appeal provisions in a brooding background of social justice sanctified by Art. 38 and of free legal aid enshrined
by Art. 39A of the Constitution.
[1059 A-B]
Per Sen (J)
In an appeal under Sec. 38 of the Advocates Act, 1961 the Supreme Court would not, as a general rule interfere
with the concurrent findings of fact by the Disciplinary Committee, Bar Council of India and the State Bar Council
unless the findings is based on no evidence or it proceeds on mere conjecture and unwarranted inferences.
[1066 G-H] When 'a lawyer has been tried by his peers' the Supreme Court cannot interfere in an appeal with the
finding in such a domestic enquiry merely because on a re-appraisal of the evidence a different view is possible.
In the facts and circumstances of the case, no other conclusion is possible than the conclusion reached. There is,
therefore no ground for interference with the finding of the Disciplinary Committee of the Bar Council of India.
[1067 C-D]
2. Disciplinary proceedings before the State Bar Council are sui generis, are neither civil nor criminal in character
and are not subject to the ordinary criminal procedural safeguards. The purpose of disciplinary proceedings is not
punitive but to inquire, for the protection of the public, the Courts and the legal profession into fitness of the
subject to continue in the capacity of an advocate. Findings in disciplinary proceedings must be sustained by a
higher degree of proof than that required in civil suits, yet falling short of the proof required to sustain a
conviction in a criminal prosecution. There should be convincing preponderance of evidence. That test is clearly
fulfilled in the instant case.
[1067-A-B]
3. It is not in accordance with professional etiquette for one advocate to hand over his brief to another to take
his place at a hearing (either for the whole or 1056
part of the hearing), and conduct the case as if the latter had himself been briefed, unless the client consents to
this course being taken. Counsel's paramount duty is to the client; accordingly where he forms an opinion that a
conflict of interest exists, his duty is to advise the client that he should engage some other lawyer. It is
unprofessional to represent conflicting interests, except by express consent given by all concerned after a full
disclosure of the facts.
[1067 D-E]
In the instant case, if there was any conflict of interest and duty the appellant should have declined to accept the
brief. What is reprehensible is that he not only accepted the brief, pocketed the money meant for court fees, and
never filed the suits but in a frantic effort to save himself, he threw the entire blame on his junior. [1068 B-C]
Nothing should be done by any member of the legal fraternity which might tend to lessen in any degree the
confidence of the public in the fidelity, honesty and integrity of the profession. The relation between a lawyer
and his client is highly fiduciary in its nature and of a very delicate, exacting, and confidential character requiring
a high degree of fidelity and good faith. It is purely a personal relationship, involving the highest personal trust
and confidence which cannot be delegated without consent. A lawyer when entrusted with a brief, is expected to
follow the norms of professional ethics and try to protect the interests of his clients, in relation to whom he
occupies a position of trust. The appellant completely betrayed the trust reposed in him by the complainants in
this case.
[1067 F, G-H; 1068 A]
4. The punishment awarded by the Disciplinary Committee of the Bar Council of India does not warrant any
further interference. In a case like this, the punishment has to be deterrent. Any appeal for mercy is wholly
misplaced. It is a breach of integrity and a lack of probity for a lawyer to wrongfully with hold the money of his
client and there was in this case complete lack of candour on the part of the appellant. [1068 D, F]
(per contra)
(a) Where it is shown that the advocate acted in bad faith towards his client in detaining or misappropriating
funds of the client, or that the wrong was committed or aided by means of false representations, fraud or deceit,
the fact that the advocate makes restitution to or settlement with the client will not prevent disbarment
especially where restitution was not made until after the commencement of the disciplinary proceedings. It is
only an ameliorating circumstance but does not mitigate the offence involved in the misappropriation
particularly when the repayment is made under pressure. [1068 H, 1069 A] (b) When there is disbarment or
suspension from practice, the lawyer must prove, if he can, after the expiration of a reasonable length of time,
that he appreciates the significance of his dereliction, that he possesses the good character necessary to
guarantee uprightness and honour in his professional dealings, and therefore is worthy to be restored. The
burden is on the applicant to establish that he is entitled to resume the privilege of practising law without
restrictions. There is nothing of the kind in the present case. Even if the Supreme Court has the power to make
such a direction, in terms of S. 38, the Court has a duty to act with justice to the profession and the public as well
as the appellant seeking reinstatement, and without regard to mere feelings of sympathy for the applicant.
Feelings of sympathy or a feeling that the lawyer has been sufficiently punished are not grounds for
reinstatement. [1068 B-D] 1057
(c) A direction requiring the advocate to undertake free legal aid during the period of his suspension would be a
contradiction in terms. Under s. 35(4), when an advocate is suspended from practice under cl. (c) of sub-s. (3)
thereof, he shall, during the period of suspension be debarred from practising in any court or before any
authority or person in India. If the making of such a direction implies the termination of the order of suspension,
on the fulfilment of the conditions laid down, no restriction on the right of the advocate to appear before any
Court or authority, which privilege he enjoys under s. 30 of the Act, can be imposed.[1069 D-F]
The Court directed:
(i) the appellant to pay a sum of Rs. 2,500/- to the victim of the misconduct and produce a receipt (ii) give an
undertaking as directed viz., accepting the suspension from practice upto 14th August 1979 and willingness to
undertake work under any legal aid body in Tamil Nadu and convince the Chairman of that Board to accept his
services in any specific place where currently there is an on going project, produce a certificate in this behalf
from the Board and (iii) agree to do only free legal and for one year as reasonably directed by the Board (and
shall not during that period accept any private engagement) so that the period of suspension shall stand
terminated with effect from January 26, 1979.
[1061 A-D]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 839 of 1978.
From the Judgment and Order dated 11-3-1978 of the Disciplinary Committee of the Bar Council of India, New
Delhi D.C. Appeal No. 14/75.
G. L. Sanghi and A. T. M. Sampath for the Appellant. Nemo for the Respondent.
The following Judgments were delivered
KRISHNA IYER, J.-We agree wholly with our learned brother Sen, J., that the appellant is guilty of gross
professional misconduct and deserves condign punishment. But conventional penalties have their punitive
limitations and flaws, viewed from the reformatory angle. A therapeutic touch, a correctional twist, and a locus
penitentiae, may have rehabilitative, impact, if only we may experiment unorthodoxly but within the parameters
of the law. Oriented on this approach and adopting the finding of guilt, we proceed to consider the penalty,
assuming the need for innovation and departing from wooden traditionalism. A middle-aged man, advocate by
profession, has grossly misconducted himself and deceived a common client. Going by precedent, the suspension
from practice for one year was none too harsh. Sharp practice by members of noble professions deserves even
disbarment. The wages of sin is death.
1058
Even so, justice has a correctional edge, a socially useful function, especially when the delinquent is too old to be
pardoned and too young to be disbarred. Therefore, a curative, not cruel punishment has to be designed in the
social setting of the legal profession.
Law is a noble profession, true; but it is also an elitist profession. Its ethics, in practice, (not in theory, though)
leave much to be desired, if viewed as a profession for the people. When the constitution under Article 19
enables professional expertise to enjoy a privilege and the Advocates Act confers a monopoly, the goal is not
assured income but commitment to the people whose hunger, privation and hamstrung human rights need the
advocacy of the profession to change the existing order into a Human Tomorrow. This desideratum gives the clue
to the direction of the penance of a devient geared to correction. Serve the people free and expiate your sin, is
the hint. Law's nobility as a profession lasts only so long as the member maintain their commitment to integrity
and service to the community. Indeed, the monopoly conferred on the legal profession by Parliament is coupled
with a responsibility-a responsibility towards the people, especially the poor. Viewed from this angle, every
delinquent who deceives his common client deserves to be frowned upon. This approach makes it a reproach to
reduce the punishment, as pleaded by learned counsel for the appellant.
But, as we have explained at the start, every punishment, however, has a functional duality-deterrence and
correction. Punishment for professional misconduct is no exception to this 'social justice' test. In the present
case, therefore, from the punitive angle, the deterrent component persuades us not to interfere with the
suspension from practice reduced 'benignly' at the appellate level to one year. From the correctional angle, a
gesture from the Court may encourage the appellant to turn a new page. He is not too old to mend his ways. He
has suffered a litigative ordeal, but more importantly he has a career ahead. To give him an opportunity to
rehabilitate himself by changing his ways, resisting temptations and atoning for the serious delinquency, by a
more zealous devotion to people's causes like legal aid to the poor, may be a step in the correctional direction.
Can these goals be accommodated within the scheme of the statute? Benignancy beyond the bounds of law are
not for judges to try.
1059
Speaking frankly, Sec. 35(3) has a mechanistic texture, a set of punitive pigeon holes, but we may note that
words grow in content with time and circumstance, that phrases are flexible in semantics, that the printed text is
a set of vessels into which the court may pour appropriate judicial meaning. That statute is sick which is allergic
to change in sense which the times demand and the text does not countermand. That court is superficial which
stops with the cognitive and declines the creative function of construction. So, we take the view that 'quarrying'
more meaning is permissible out of Sec. 35(3) and the appeal provisions, in the brooding background of social
justice, sanctified by Art. 38, and of free legal aid enshrined by Art. 39A of the Constitution.
"A statute rarely stands alone. Back of Minerva was the brain of Jove, and behind Venus was the spume of the
ocean."
(The Interpretation and Application of Statutes-Read Dickerson p. 103)
Back to the Act. Sec. 35(3) reads:
"The disciplinary committee of a State Bar Council after giving the advocate concerned and the Advocate General
an opportunity of being heard, may make any of the following orders, namely:-
(a) dismiss the complaint or, where the proceedings were initiated at the instance of the State Bar Council, direct
that the proceedings be filed;
(b) reprimand the advocate;
(c) suspend the advocate from practice for such period as it may deem fit;
(d) remove the name of the advocate from the State roll of advocates.
Sec. 37 provides an appeal to the Bar Council of India. It runs:
37(1) Any person aggrieved by an order of the disciplinary committee of a State Bar Council made (under section
35) (or the Advocate General of the State) may, within sixty days of the date of the communication of the order
to him, prefer an appeal to the Bar Council of India.
1060
(2) Every such appeal shall be heard by the disciplinary committee of the Bar Council of India which may pass
such order (including an order varying the punishment awarded by the disciplinary committee of the State Bar
Council) thereon as it deems fit.
Section 38 provides a further, final appeal to the Supreme Court in these terms:
"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 sixty days of the date on which the order is communicated to him, prefer an appeal to the
Supreme Court and the Supreme Court may pass such order (including an order varying the punishment awarded
by the disciplinary committee of the Bar Council of India) thereon as it deems fit." Section 35(3) (c) enables
suspensions of the advocate- whether conditionally or absolutely, it is left unclear. Section 37 (2) empowers the
Bar Council of India widely to 'pass such order as it deems fit.' And the Supreme Court, under Sec. 38 enjoys
ample and flexible powers to 'pass such order.. as it deems fit'.
Wide as the power may be, the order must be germane to the Act and its purposes, and latitude cannot
transcend those limits. Judicial 'Legisputation' to borrow a telling phrase of J. Cohen, is not legislation but
application of a given legislation to new or unforeseen needs and situations broadly falling within the statutory
provision. In that sense, 'interpretation is inescapably a kind of legislation'. This is not legislation stricto sensu but
application, and is within the court's province. We have therefore sought to adapt the punishment of suspension
to serve two purposes-injury and expiation. We think the ends of justice will be served best in this case by
directing suspension plus a provision for reduction on an undertaking to this court to serve the poor for a year.
Both are orders within this court's power.
1061
Tamil Nadu has a well-run free legal aid programme with which the Governor and Chief Justice of the State are
associated. The State Legal Aid Board, working actively with two retired Judges of the High Court at the head,
may use the services of the appellant keeping a close watch on his work and relations with poor clients, if he
applies to the Legal Aid Board for giving him such an opportunity, after getting this court's order as provided
below. Independently of that, as a token of our inclination to allow the appellant to become people-minded in
his profession, we reduce the suspension from practice upto the 14th of August 1979. With the next
Independence Day we hope the appellant will inaugurate a better career and slough off old bad habits. If the
appellant gives an undertaking that he will work under any official legal aid body in Tamil Nadu and convinces the
Chairman of the State Legal Aid Board, Tamil Nadu, to accept his services in any specific place where currently
there is an on-going project, produces a certificate in this behalf from the Board, and gives an undertaking to this
Court that he will do only free legal aid for one year as reasonably directed by the Board (and shall not, during
that period, accept any private engagement), his period of suspension shall stand terminated with effect from
January 26, 1979. As a condition precedent to his moving this court he must pay (and produce a receipt) Rs.
2,500/- to the victim of the misconduct. Atonement cannot be by mere paper pledges but by actual service to the
people and reparation for the victim. That is why we make this departure in the punitive part of our order.
Innovation within the frame-work of the law is of the essence of the evolutionary process of juridical
development. From that angle, we think it proper to make a correctional experiment as a super-addition to
punitive infliction. Therefore, we make it clear that our action is less a precedent than a portent.
With the modification made above, we dismiss the appeal.
SEN, J.-This appeal under section 38 of the Advocates Act, 1961 by V. C. Rangadurai is directed against an order
of the Disciplinary Committee of the Bar Council of India dated March 11, 1978 upholding the order of the
Disciplinary Committee-II of the State Bar Council, Madras dated May 4, 1975 holding him guilty of professional
misconduct but reducing the period of suspension from practice to one year from six years.
There can be no doubt that the appellant had duped the complainants, T. Deivasenapathy, an old deaf man aged
70 years and his aged wife Smt. D. Kamalammal by not filing the suits on two
1062
promissory notes for Rs. 15,000/- and Rs. 5,000/- both dated August 26, 1969 executed by their land-lady Smt.
Parvathi Ammal, who had borrowed Rs. 20,000/- from them, by deposit of title deeds.
Admittedly, though the plaint for recovery of the amount due on the promissory note for Rs. 15,000/- with
interest thereon bearing court fee of Rs. 1,519.25 was returned for presentation to the proper court, it was never
re-presented. It is also not denied that though the appellant had drafted the plaint for recovery of Rs. 5,000/-
with interest no such suit was ever filed. In spite of this, the appellant made false representations to the
complainants Deivasenapathy (P.W. 1), his wife Smt. Kamalammal (P.W. 3) and the power of attorney agent of
the complainants, D. Gopalan (P.W. 2) that the suits had been filed and were pending, gave them the various
dates fixed in these two suits, and later on falsely told them that the court had passed decrees on the basis of the
two promissory notes. On the faith of such representation the complainants served a lawyer's notice dated
December 25, 1973 (Ext. P-3) on the debtor Smt. Maragathammal, to the effect: "That you are aware of my
clients' filing two suits against you for recovery of Rs. 15,000/- and Rs. 5,000/- with due interest and cost thereon
and it is not to state that both the suits were decreed as prayed for by my clients in the court proceedings. My
clients further say that in spite of the fact that the suits had been decreed long ago you have not chosen to pay
the amount due under the decrees in question and on the other hand trying to sell the property by falsely
representing that the original documents have been lost to the prospective buyers. My clients further state that
you are aware of the fact that my clients are in possession of the original documents relating to the property
bearing door No. 41 Shaik Daood Street, Royapeeth, Madras-14, but deliberately made false representation as
aforesaid with the mala fide intention to defeat and defraud my clients' amounts due under the decree.
My clients emphatically state that you cannot sell the property in question without disclosing the amounts due to
them.....".
1063
It would thus appear that acting on the representations made by the appellant, the complainants called upon the
debtor Smt. Maragathammal to pay the amount due under the decrees failing which they had instructed their
lawyer to bring the property to sale. Actually no such suits had in fact been filed nor any decrees passed.
It is argued that the finding as to professional misconduct on the part of the appellant reached by the Disciplinary
Committee of the Bar Council of India is not based on any legal evidence but proceeds on mere conjectures. It is
pointed out that the ultimate conclusion of the Disciplinary Committee cannot be reconciled with its earlier
observation that it was not prepared to attach any credence to the conflicting assertion of Deivasenapathy that
he had at first handed over Rs. 855/- on December 2, 1970 for filing the suit on the promissory note for Rs.
5,000/- and then paid Rs. 2,555/- some time in July 1972 for filing the suit on the promissory note for Rs.
15,000/- which is in conflict with the allegation in the lawyer's notice dated February 21, 1974 (Ext. R-1) that a
sum of Rs. 3,410/- was paid on July 17, 1972 to wards court fees and expenses for the filing of the two suits, or
that the various dates marked in the copies of the two plaints, Ext. P-1 and Ext. P-2, were indeed given by him. It
is urged that the Disciplinary Committee was largely influenced by the fact that the appellant gave the receipt,
Ext. R-7 to K.S. Lakshmi Kumaran, which was found to be forged. In view of the discrepancies in the testimony of
Deivasenapathy, P.W. 1, Smt. Kamalammal, P.W. 3 and their agent, D. Gopalan, P.W. 2, it was evident that the
Disciplinary Committee mainly based the charge of misconduct on mere suspicion. Lastly, it is said that the
complaint was a false one and was an attempt to pressurize the appellant to persuade his client Smt.
Maragathammal to sell the house to the complainants. We are afraid, the contentions cannot be accepted. In
denial of the charge the appellant pleaded that though he had drafted the plaint in the suit to be filed on the
basis of the promissory note for Rs. 5,000/-, he felt that as the debtor Smt. Maragathammal had consulted him in
another matter, it would be better that the complainants engaged some other counsel and he advised them
accordingly. He suggested the names of two or three lawyers out of whom, the complainants engaged K. S.
Lakshmi Kumaran. He denied that the two promissory notes were handed over to him or that he had received
any amount by way of court fees or towards his fees. According to him, K.S.Lakshmi Kumaran was, therefore.
instructed to file the suits.
K. S. Lakshmi Kumaran, on the other hand, pleaded that he knew nothing about the suits but had in fact signed
the Vakalat as a Junior
1064
counsel, as a matter of courtesy at the behest of the appellant. He pleaded that he had never met the
complainants nor had he been instructed by them to file the suits. He further pleaded that when the
complainants served him with their lawyer's notice dated February 11, 1974, Ext. R-11, he went and saw the
appellant who told him that he had returned the plaint, which was returned by the court, together with all the
documents to the complainant Deivasenapathy as per receipt, Ext. R-7. On February 21, 1974 the complainants
served another lawyer's notice on both the appellant and K. S. Lakshmi Kumaran. The appellant and K. S. Lakshmi
Kumaran sent their replies to this notice. The appellant's reply, Ext. R-2, was practically his defence in the present
proceedings. K. S. Lakshmi Kumaran in his reply, Ext. R-5, refers to the lawyer's notice, Ext. R-11, sent by the
complainants earlier and states that when he took the notice to the appellant, he told him that the papers were
taken back from him by the complainant Dievasenapathy who had passed on to him a receipt.
The Disciplinary Committee, in its carefully written order, has marshalled the entire evidence in the light of the
probabilities and accepted the version of K. S. Lakshmi Kumaran to be true. It observes:
"Earlier we referred to the conflict between the two advocates. We cannot help observing that we feel there is
want of candour and frankness on the part of RD. On a careful consideration of the evidence we see no reason to
reject the evidence of L that he merely signed the Vakalat and plaint and when the plaint was returned he took
the return and passed on the papers to RD."
It then concludes stating:
"On an overall view of the evidence we hold that L was not directly engaged by the parties and that when the
plaint with its annexures was returned, L passed it on to RD. We also accept L's evidence that when on receipt of
the notice Ext. R-11 he met RD he was informed that the case papers were taken back by P.W. 1 and that some
time afterwards RD gave him the receipt Ext. R-7..............
It must be, that when the complainants turned against RD suspecting his bona fide he denied having had
anything to do in the matter and threw up his junior colleague in the profession stating that he passed the clients
no to L and had nothing more to do with the case. As the clients had no direct contact with L his statement that
he handed over the 1065
plaint on its return to RD looks probable and likely. We accept it. When a notice was issued to him in the matter
he went to RD and RD gave him the receipt Ext. R-7. The receipt purports to be signed by Deivasenapathy and
accepted it for what it was worth." In that view, both advocates were found guilty of professional misconduct,
but differing in character and different in content. In dealing with the question, it observes:
"As regards RD, the litigants entrusted the briefs to him whatever their motive. The record does not establish
that before entrusting the case to L the complainants were introduced by RD to L and L was accepted by them as
counsel in charge of the case." It condemned both the advocates for their dereliction of duty, but only
reprimanded K. S. Lakshmi Kumaran, the junior advocate, because he never knew the complainants and had
signed the vakalat at the bidding of the appellant, but took a serious view of the misconduct of the appellant, and
castigated his whole conduct in no uncertain terms, by observing:
"Finding himself in difficulties RD miserably failed in his duty to his fellow advocate very much junior to him in
the profession and who trusted him. The conduct of a lawyer to his brothers in the profession must be
characterised by candour and frankness. He must keep faith with fellow members of the bar. While quite
properly RD did not accept the engagement himself we are of the view that he has been party to the institution
of a suit tended merely to harass the defendants in the suit, with a view to secure some benefit for the other
party-manifestly unprofessional." It went on to observe:
"The only casualty is RD's professional ethics in what he might have thought was a gainful yet good samaritan
move. When the move failed and there was no likelihood of his success, the complainants turned against him
securing for their help their power of attorney. Then fear psychosis appears to have set in, leading RD to totally
deny his involvement in the plaint that was filed and let down the junior whose assistance he sought. We see no
other probability
1066
out of the tangled web of exaggerations, downright denials, falsehood and fabrications mingled with some
truth."
May be, the complainants were not actuated from a purely altruistic motive in lodging the complaint but that
does not exonerate the appellant of his conduct. The suggestion that the complaint was false one and
constituted an attempt at blackmail is not worthy of acceptance. The property was actually sold to M. M. Hanifa
for Rs. 36,000 by registered sale deed dated August 1, 1974, while the complaint was filed in April 1974. We do
not see how the initiation of the proceedings would have pressurised the appellant to compel his client Smt.
Maragathammal to part with the property for Rs. 20,000/- the price offered by the complainants. It is no doubt
true that at one stage they were negotiating for the purchase of the house of which they were the tenants but
the price offered by them was too low. The Disciplinary Committee of the Bar Council of India summoned the
purchaser and he stated that from December 1973, he had been trying to purchase the property. It is also true
that in response to the notice dated August 1, 1974 served by the purchaser asking the complainants to attorn to
him, they in their reply dated August 8, 1974 expressed surprise that he should have purchased the property for
Rs. 36,000/- when in fact it was not worth more than Rs. 26,000/-
It matters little whether the amount of Rs. 3,410/- was paid to the appellant in a lump sum or in two instalments.
Deivasenapathy, P.W. 1 faltered when confronted with the notice Ext. R-1 and the Disciplinary Committee of the
Bar Council of India has adversely commented on this by saying that he is not 'an illiterate rustic' but is an
M.I.S.E., a retired Civil Engineer. This by itself does not disapprove the payment of the amount in question. It may
be the general power of attorney, D. Gopalan, P.W. 2, made a mistake in instructing the counsel in giving the
notice. As regards the various dates appearing on the copies of the two plaints, Exts. P-1 and P-2, the
complainants could not have got these dates by themselves unless they were given by the appellant. In an appeal
under section 38 of the Act, this Court would not, as a general rule, interfere with the concurrent finding of fact
by the Disciplinary Committee of the Bar Council of India and of the State Bar Council unless the finding is based
on no evidence or it proceeds on mere conjecture and unwarranted inferences. This is not the case here.
Under the scheme of the Act, the disciplinary jurisdiction vests with the State Bar Council and the Bar Council of
India. Disciplinary
1067
proceedings before the State Bar Council are sui ceneris, are neither civil nor criminal in character, and are not
subject to the ordinary criminal procedural safeguards. The purpose of disciplinary proceedings is not punitive
but to inquire, for the protection of the public, the courts and the legal profession, into fitness of the subject to
continue in the capacity of an advocate. Findings in disciplinary proceedings must be sustained by a higher
degree of proof than that required in civil suits, yet falling short of the proof required to sustain a conviction in a
criminal prosecution. There should be convincing preponderance of evidence. That test is clearly fulfilled in the
instant case.
When 'a lawyer has been tried by his peers', in the words of our brother Desai J., there is no reason for this Court
to interfere in appeal with the finding in such a domestic enquiry merely because on a reappraisal of the
evidence a different view is possible. In the facts and circumstances of the case, we are satisfied that no other
conclusion is possible than the one reached. There is, therefore, no ground for interference with the finding of
the Disciplinary Committee of the Bar Council of India. It is not in accordance with professional etiquette for one
advocate to hand over his brief to another to take his place at a hearing (either for the whole or part of the
hearing), and conduct the case as if the latter had himself been briefed, unless the client consents to this course
being taken. Council's paramount duty is to the client; accordingly where he forms an opinion that a conflict of
interest exists, his duty is to advise the client that he should engage some other lawyer. It is unprofessional to
represent conflicting interests, except by express consent given by all concerned after a full disclosure of the
facts. Nothing should be done by any member of the legal fraternity which might tend to lessen in any degree the
confidence of the public in the fidelity, honesty and integrity of the profession. Lord Brougham, then aged eighty-
six, said in a speech, in 1864, that the first great quality of an advocate was 'to reckon everything subordinate to
the interests of his client'. What he said in 1864 about 'the paramountcy of the client's interest'. is equally true
today. The relation between a lawyer and his client is highly fiduciary in its nature and of a very delicate,
exacting, and confidential character requiring a high degree of fidelity and good faith. It is purely a personal
relationship, involving the highest personal trust and confidence which cannot be delegated without consent. A
lawyer when entrusted with a brief, is expected to follow the norms of professional ethics and try to protect the
interests of his clients, in relation to whom he occupies a position of trust. The
1068
appellant completely betrayed the trust reposed in him by the complainants.
It is needless to stress that in a case like this the punishment has to be deterrent. There was in this case complete
lack of candour on the part of the appellant, in that he in a frantic effort to save himself, threw the entire blame
on his junior, K. S. Lakshmi Kumaran. The evidence on record clearly shows that it was the appellant who had
been engaged by the complainants to file suits on the two promissory notes for recovery of a large sum of Rs.
20,000/- with interest due thereon. There was also complete lack of probity on the part of the appellant because
it appears that he knew the debtor, Smt. Maragathammal for 7/8 years and had, indeed, been appearing for her
in succession certificate proceedings. If there was any conflict of interest and duty, he should have declined to
accept the brief. What is reprehensible is that he not only accepted the brief, pocketed the money meant for
court fees, and never filed the suits.
The appeal for mercy appears to be wholly misplaced. It is a breach of integrity and a lack of probity for a lawyer
to wrongfully withhold the money of his client. In a case of such grave professional misconduct, the State Bar
Council observes that the appellant deserved the punishment of disbarment, but looking to his young age, only
suspended him from practice for a period of six years. The Disciplinary Committee of the Bar Council of India has
already taken a lenient view and reduced the period of suspension from six years to one year, as in its view the
complainants did not suffer by the suits not being proceeded with because even if they had obtained decrees for
money, they would still have been required to file a regular mortgage suit for the sale of the property charged.
In the facts and circumstances of the case, I am of the view that the punishment awarded by the Disciplinary
Committee of the Bar Council of India does not warrant any further interference.
I have had the advantage of reading the judgment of my learned brother Krishna Iyer for the restitution to the
appellant of his right to practice upon fulfilment of certain conditions. I have my own reservations in the matter,
that is, whether any such direction should at all be made in the present case.
Where it is shown that the advocate acted in bad faith towards his client in detaining or misappropriating funds
of the client, or that the wrong was committed or aided by means of false representations, fraud or deceit, as
here, the fact that the advocate makes restitution to 1069
or settlement with the client will not prevent disbarment, especially where restitution was not made until after
the commencement of the disciplinary proceedings. It is only an ameliorating circumstance but does not mitigate
the offence involved in the misappropriation, particularly when the repayment is made under pressure.
When there is disbarment or suspension from practice, the lawyer must prove, if he can, after the expiration of a
reasonable length of time, that he appreciates the significance of his dereliction, that he has lived a consistent
life of probity and integrity, and that he possesses the good character necessary to guarantee uprightness and
honour in his professional dealings, and therefore is worthy to be restored. The burden is on the applicant to
establish that he is entitled to resume the privilege of practising law without restrictions. There is nothing of the
kind in the present case.
Further, even if this Court has the power to make such a direction. in terms of s. 38, the Court has a duty to act
with justice to the profession and the public as well as the appellant seeking reinstatement, and without regard
to mere feelings of sympathy for the applicant. Feelings of sympathy or a feeling that the lawyer has been
sufficiently punished are not grounds for reinstatement.
I also doubt whether a direction can be made requiring the advocate to undertake free legal aid during the
period of his suspension. This would be a contradiction in terms. Under s. 35(4), when an advocate is suspended
from practice under cl.(c) of sub-s. (3) thereof, he shall, during the period of suspension, be debarred from
practising in any court or before any authority or person in India. If the making on such a direction implies the
termination of the order of suspension, on the fulfilment of the conditions laid down, I am of the considered view
that no restriction on the right of the advocate to appear before any court or authority, which privilege he enjoys
under s. 30 of the Act, can be imposed.
The taking, of too lenient a view in the facts and circumstances of the case, I feel, would not be conducive to the
disciplinary control of the State Bar Councils. I would, for these reasons, dismiss the appeal and maintain the
punishment imposed on the appellant.
In conclusion, I do hope the appellant will fully reciprocate the noble gesture shown to him by the majority, come
up to their expectations and turn a new leaf in life. It should be his constant endeavour to keep the fair name of
the great profession to which he belongs unsullied. S.R. Appeal dismissed.
5.Chandra Shekhar Soni vs Bar Council Of Rajasthan And Ors. on 20 July, 1983
Equivalent citations: AIR 1983 SC 1012, 1983 (2) SCALE 384, (1983) 4 SCC 255
Bench: A Sen, E Venkataramiah, R Misra
ORDER
1. This appeal under Section 38 of the Advocates Act, 1961 is directed against an order of the Disciplinary
Committee of the Bar Council of India dated January 7, 1977 upholding the order of the Disciplinary Committee
of the State Bar Council of Rajasthan, Jodhpur dated July 21, 1974 by which the appellant has been held guilty of
professional misconduct and suspended from practice for a period of three years under Section 35(c) of the Act.
2. Nothing should be done by any member of the legal fraternity which might tend to lessen in any degree the
confidence of the public in the fidelity, honesty and integrity of the profession. The State Bar Council gave the
appellant the benefit of doubt on the first charge that he changed sides in a criminal case, holding that though
such conduct on his part was unprofessional, it was not tantamount to professional misconduct. The Disciplinary
Committee of the Bar Council of India rightly observes that it failed to appreciate the distinction drawn by the
Slate Bar Council as his act in accepting the brief for the accused after having appeared for the complainant was
clearly contrary to r. 33 of the Bar Council of India Rules, 1975. We concur with the Disciplinary Committee. It is
not in accordance with professional etiquette for an advocate while retained by one party to accept the brief of
the other. It is unprofessional to represent conflicting interests except by express consent given by all concerned
after a full disclosure of the facts. The appellant would not have appeared for the other side except with the
permission of the learned Magistrate. Counsel's paramount duty is to the client, and where he finds that there is
conflict of interests, he should refrain from doing anything which would harm any interests of his client. A lawyer
when entrusted with a brief is expected to follow the norms of professional ethics and try to protect the interests
of his client in relation to whom he occupies a position of trust. The State Bar Council however found the
appellant guilty of the second charge viz. that he had procured the brief of the complainant in another case on a
fee of Rs. 300/- on the representation that he would secure a favourable report from the Radiologist showing
that there was a fracture of the skull. The appellant was guilty of reprehensible conduct. The preamble to
Chapter II Part VI of the Rules lays down that an advocate shall at all times, comfort himself in a manner befitting
his status as an officer of the Court, privileged member of the community and a gentleman. R. 4 of this Chapter
provides that an advocate shall use his best effort to restrain and prevent his client from resorting to sharp and
unfair practices etc. There is a long catena of decisions laying down that offering of bribe or giving bribe or taking
money from the client for the purpose of giving bribe amounts to grave professional misconduct.
3. It appears that the complainant Bhaniya and his wife Smt. Galki were assaulted as a result of which they
received head injuries. Both of them were examined by Dr. Raman Varma and he referred them to a Radiologist.
Dr. Mangal Sharma, Radiologist sent a report to the Station House Officer that he found nothing abnormal in the
X-ray plate of the complainant Bhaniya but from the X-ray plate of Smt. Galki he suspected a fracture of the skull
and suggested that he should refer the matter to a Specialist. The appellant approached the complainant with
the X-ray plates taken by Dr. Sharma and promised to get a favourable report if he was engaged as a counsel and
said that Rs. 300/- had to be paid to Dr. Sharma. The appellant then sent the complainant along with a letter to
Dr. Sharma to the effect :
Dear Doctor Sahib,
I am sending the man to you with X-ray plate. Your amount is lying with me. 1 will come to Jalore in the evening
and see you. Please, do his work and it should be done positively in his favour.
Sd/-
Chander Shekhar Soni
4. Dr. Mangal Sharma sent another report to the Station House Officer saying :
There is evidence of fracture of the skull.
5. It is not in controversy that the appellant wrote the letter but he put forward a false plea which he has failed
to substantiate. He pleaded that he had sent the letter to one Dr. Surinder Singh Lodha, Homeopath and also
Editor of a newspaper Jan Prahari for publication of an advertisement. He tried to substantiate his plea by
examining Dr. Surinder Singh Lodha and one Mahipal Kumar through whom he is supposed to have sent the
letter. The appellant in his statement stated, when confronted with the letter, that the words "I am sending the
man to you with X-ray plate" relate to the X-ray 35 plate sent by him to Dr. Lodha, the words "Your amount is
lying with me" relate to Rs. 20/- given to Mahipal for being handed over to Dr. Lodha for the printing of the
advertisement, and the words "Please do his work and it should be done positively in his Favor" relate to the
publication of the advertisement as desired by Mahipal. The defence plea was that Dr. Lodha had taken the X-ray
plate of one of his relations who was suffering from tuberculosis. The Disciplinary Committee of the Bar council
of India has upheld the finding of the State Bar Council disbelieving the defence version. The explanation of
Mahipal is that he had lost the letter. On the contrary, the version of the complainant is that he had taken the
letter to Dr. Sharma who after reading it returned the same to him. The fact remains that the incriminating letter
has been produced by the complainant. This completely falsifies the plea taken by the appellant in his defence
that the letter was meant for publication of an advertisement in the newspaper. Admittedly, no such
advertisement was ever published.
6. In an appeal under Section 38 of the Act, this Court would not, as a general rule, interfere with the concurrent
finding of fact given by the Disciplinary Committee of the Bar Council of India and of the State Bar Council unless
the finding is based on no evidence or it proceeds oh mere conjectures and unwarranted inferences. This is not
the case here. In the facts and circumstances of the case, we are satisfied that no other conclusion is possible
than the one reached. There is therefore no ground for interference with the finding of the Disciplinary
Committee of the Bar Council of India.
7. It is needless to stress that in a case like this the punishment has to be deterrent. There was in this case
complete lack of candour on the part of the appellant in that he, in a frantic effort to save himself, procured false
evidence. The evidence on record clearly shows that the appellant had taken money to pay a bribe to the
Radiologist. In a case of such grave professional misconduct, the State Bar Council observes that such practices
adopted by the members of the bar bring the whole legal profession into disrepute and accordingly directed that
the appellant be suspended from practice for a period of three years. The Disciplinary Committee has upheld the
sentence saying that the penalty imposed does not appear to be excessive and rejected the plea of mercy
observing :
It is true that the appellant was a mere junior at the bar and not much experienced when the incident is said to
have taken place. The temptation for money at that stage is of course very great but at the same time it is to be
realised by the appellant that he belongs to a noble profession, which has very high traditions and those
traditions are not to be sullied by malpractices of this nature.
Accordingly it declined to interfere with the punishment. We however feel that the punishment of suspension
from practice for a period of three years to a junior member of the bar like the appellant is rather severe. The
lapse on the part of the appellant was perhaps due to the fact that in the struggle for existence he had to resort
to such malpractices. We strongly deprecate the conduct of the appellant but take a lenient view because he was
an inexperienced member of the bar, and the fact that the incidents took place in 1971. In all facts and
circumstances of the case, we feel it would meet the ends of justice if we reduce the period of suspension from
three years to one year. We order accordingly.
8. Subject to this modification, the appeal is dismissed with no order as to costs.