Contents

As Mohammed
Rafi...............................................................................................................................
.......3
AN ADVOCATE v. BAR COUNCIL OF INDIA...................................................................4
Bar Council of India v. High Court of Kerala................................................................7
BHUPINDER KUMAR SHARMA v. BAR ASSOCIATION, PATHANKOT..............................10
Biji vs Registrar, High Court Of Kerala on 9 August, 2001........................................13
Shri C.K Daphtary and Others v.Shri O.P Gupta and Others 1971 (1) SCC 626.........14
In the Matter of Mr G a Senior Advocate of the Supreme Court AIR 1954 SC 557. .19
CHANDRA SHEKHAR SONI (Appellants)v. BAR COUNCIL OF RAJASTAN(Respondents)
................................................................................................................................. 21
D.S.Dalal v. State Bank of India & Ors., 1993 Supp (3) SCC 557.............................22
Daroga Singh and Ors. v. B.K. Pandey......................................................................24
DR. D.C. SAXENA, CONTEMNOR V. HONBLE THE CHIEF JUSTICE OF INDIA...............28
Delhi Judicial Services Association v. State of Gujarat..............................................31
E.M. SHANKARAN NAMBOODRIPAD v. T. NARAYANAN NAMBIAR................................35
E.S. Reddi v. Chief Secretary, Government of A.P. and Anr.......................................38
Gobind Ram v. State of Maharshtra AIR 1972 SC 989..............................................42
Ex. Captain Harish Uppal Vs. Union of India (UOI) and Anr......................................42
Harishankar Rastogi v. Girihari Sharma and Ors., 19782 SCC 165...........................44
Hikmat Ali Khan (Appellants) vs. Ishwar Prasad Arya & Ors. (Respondents).......................45
Himalayan Cooperative Group Housing Society v Balwan Singh..............................47
In Re A an advocate.................................................................................................. 49
In Re: S. Mulgaokar................................................................................................... 50
In the matter of Mr. D, an Advocate of the Supreme Court (In re D).........................54
In the matter of Summons under Order IV Rule 30 of the Supreme Court Rules 1950
(as amended),.......................................................................................................... 57
JOHN DDOUZA v. EDWARD ANI................................................................................60
L D Jaisinghani v. Naraindas N Punjabi......................................................................62
Lalit Mohan Das v. AG, Orissa(6 Page case)..............................................................64
Mahabir Prasad Singh vs.Jacks Aviation Pvt. Ltd.......................................................66
The Bar Council of Maharashtra v M.V. Dabholkar & Ors (AIR 1976 SC 242)............67
1

Mrs. Roma Banerjee vsUshapati Banerjee, Muktear, on 29 January, 1954..............69

N.B Mirzan vs. The Disciplinary Council of Bar Council of Maharashtra & Ors..........72
New India Assurance Co. Ltd vs. A.K. Saxena...........................................................73
P. D. GUPTA v. RAM MURTY....................................................................................... 74
Perspective Publications (P) Ltd. and Anr.v.State of Maharashtra.............................75
Pralhad Saran Gupta v. Bar Council of India.............................................................78
Pravin C. Shah v. K.A.Mohd.Ali and Another, (2001) 8 SCC 650 (14 pages)..............80
R.D. Saxena v. Balram Prasad Sharma.....................................................................83
RajendraNagrath v. Col VNVohra and Ors................................................................85
RAJENDRA V. PAI V. ALEX FERNANDES AND OTHERS.................................................87
C. Ravichandran Iyer vs Justice A.M. Bhattacharjee & Ors........................................88
Sanjay R Kothari v. South Mumbai Consumer Disputes Redressal Forum.................93
Shiv NarainJafa Vs. The Hon'ble Judges of the High Court of Judicature at Allahabad......................96
P.J. Ratnam v. D. Kanikaram and Ors., AIR 1964 SC 244..........................................98
SUPREME COURT BAR ASSOCIATION v. UNION OF INDIA........................................101
TC Mathai and Anr V. District, Sessions Judge Thiruvananthapuram ,Kerala...........103
Thomas P C v. Bar Council of Kerala & Ors............................................................105
U.P. Sales Tax Service Association v. Taxation Bar Association, Agra and Others. . .106
V.C. RANGADURAI v. D. GOPALAN AND OTHERS AIR 1979 SC 201; (1979) 1 SCC 308
............................................................................................................................... 108
V.P.Kumaraveluv Bar Council of India &Ors.............................................................112
Vijaya Singh v. Murarilal......................................................................................... 114
Vikas Deshpande v. Bar council of India and others...............................................115
Vinay Chandra Misra, In Re..................................................................................... 117
Srimathi And Others vs Union Of India And Others.................................................121
Dinesh Chandra Pandey v. High Court of Madhya Pradesh and Anr........................122
ShrimatiJamilabai Abdul Kadar v ShankarlalGulabchand and others......................124
Ram Bharosey Agarwal v Harswarup Maheshwari-(1976) 3 SCC 435.....................126

Case Name: A.S.

Mohammed Rafi v State of Tamil Nadu

Topic: Right to be defended by a lawyer

Case Citation: (2011) 1 SCC 688
Judges: Markandey Katju and Gyan Sudha Misra
No. of pages : 7
Facts
A resolution was passed by the Coimbatore Bar Association exhorting its members not to defend
the policemen who were the accused in a particular criminal case.The resolution was challenged
before the Madras High Court. The Madras High Court made some observations about the
Coimbatore Bar Association in its judgment. A civil appeal was filed before the Supreme Court
seeking to quash the observations made against it.
While granting the plea of the Coimbatore Bar Association in Civil Appeal No. 10304 -103 08 of
2010 that the observations made against it in the impugned judgment of the High Court of
Madras should be quashed, the Supreme Court also considered the validity and propriety of the
resolution passed by the Bar Association.
Issues
Whether professional standards and ethics require advocates to defend all accused persons.
Whether the resolution passed by the Bar Association not to defend accused policemen in
criminal cases violates the right to be defended under Article 22(1) of the Constitution.
Held
All such resolutions of Bar Associations in India are null and void and right minded lawyers
should ignore and defy such resolutions if they want democracy and rule of law to be upheld. It
is the duty of a lawyer to defend no matter what the consequences are. Professional ethics require
that a lawyer cannot refuse a brief, provided the client is willing to pay his fee and the lawyer is
not otherwise engaged. Every person, however, wicked, depraved, vile, degenerate, perverted,
3

loathsome, execrable, vicious or repulsive he may be regarded by society, has a right to be

defended in a court of law and correspondingly it is the duty of the lawyer to defend him.
The court also emphasized Article 22(1) of the Constitution which says that no person who is
arrested shall be detained in custody without being informed of the grounds of his arrest nor
shall be denied the right to consult, and to be defended by a legal practitioner of his choice.
Reference was also made to Chapter II of the Rules framed by the Bar Council of India about
Standards of Professional Conduct and Etiquette. Rule 11 says that an advocate is bound to
accept any brief in the courts or tribunals or before any other authority in or before which he
proposes to practice at a fee consistent with his standing at the Bar and the nature of the case.
Special circumstances may justify his refusal to accept a particular brief.
Judgment
The Supreme Court declared that all such resolutions of Bar Associations in India are null and
void and directed the registry to circulate copies of the judgment/order to all High Court Bar
Associations and State Bar Councils in India and the High Court Bar Associations in turn were
requested to circulate the judgment/order to all the District Bar Associations in their States/Union
Territories.

AN ADVOCATE v. BAR COUNCIL OF INDIA

AIR 1989 SC 245: 2 Judge Bench (18 page case)
FACTS
A complaint was filed by the respondent before the State Bar Council alleging that the appellantadvocate had withdrawn a suit against one A for recovery of a sum of money without the
written instruction of his client. However the version of the appellant was that the suit had been
instituted in a particular set of circumstances, that the complainant had been introduced to the
appellant for purposes of the institution of the suit by an old client of his G, that the appellant
was already handling a case on behalf of G against A and it was at the instance and inspiration
of G that the suit had been instituted by the complainant, but actually he was the nominee of
G and the complainant himself had no real claim on his own and that the suit was withdrawn
4

under the oral instructions of the complainant in the presence of G and A. The disciplinary
committee of the State Bar Council after calling for the comments of the appellant in the context
of the complaint, straightaway proceeded to record the evidence of the parties. No charge was
framed specifying the nature and content of the professional misconduct attributed to the
appellant. Nor were any issues framed or points for determination formulated. As the case could
not be concluded within the prescribed time limit the matter came to be transferred to the Bar
Council of India which heard arguments and rendered the impugned order suspending the
appellant from practising his profession for 3 years.
ISSUES
The case came before the Supreme Court under Section 38 of the Advocates Act
The questions which arose for determination were:1) Whether a charge apprising him specifically of the precise nature and character of the
professional misconduct ascribed to him needs to be framed?
(2) Whether in the absence of an allegation or finding of dishonesty or mens rea a finding of guilt
and a punishment of this nature can be inflicted on him?
(3) Whether the allegations and the finding of guilt require to be proved beyond reasonable
doubt?
(4) Whether the doctrine of benefit of doubt applies?
(5) Whether an Advocate acting bona fide and in good faith on the basis of oral instructions
given by someone purporting to act on behalf of his client, would be guilty of professional
misconduct or of an unwise or imprudent act, or negligence simpliciter, or culpable negligence
punishable as professional misconduct?
Allowing the appeal and setting aside the order of the Bar council of India Supreme Court
held that:-

The proceedings under Section 35 of the Advocates Act are quasi-criminal in character inasmuch
as a Member of the profession can be visited with penal consequences which affect his right to
practice the profession as also his honour;
In order to enable the concerned Advocate to defend himself properly, an appropriate specific
charge was required to be framed on the paramount consideration of fair play even though the
Act does not outline the procedure and the Rules do not prescribe the framing of a charge.
That the Disciplinary Committee empowered to conduct the enquiry and to inflict the
punishment on behalf of the body, in forming an opinion must be guided by the doctrine of
benefit of doubt and is under an obligation to record a finding of guilt only upon being satisfied
beyond reasonable doubt. It would be impermissible to reach a conclusion on the basis of
preponderance of evidence or on the basis of surmise, conjuncture or suspicion. It will also be
essential to consider the dimension regarding mensrea;
In the event of a charge of negligence being levelled against an Advocate, the question will have
to be decided whether negligence simpliciter would constitute misconduct. It would also have to
be considered whether the standard expected from an Advocate would have to answer the test of
a reasonably equipped prudent practitioner carrying reasonable workload. A line will have to be
drawn between tolerable negligence and culpable negligence in the sense of negligence which
can be treated as professional misconduct exposing a Member of the profession to punishment in
the course of disciplinary proceedings. In forming the opinion on this question the standards of
professional conduct and etiquette spelt out in Chapter II of Part VI of the Rules governing
Advocates, framed under Section 60(3) and Section 49(1) (g) of the Act, which forms a part of
the Bar Council of India Rules, may be consulted. As indicated in the preamble of the Rules, an
Advocate shall, at all times compose himself in a manner befitting his status as an Officer of the
Court, a privileged member of the community and a gentleman bearing in mind what may be
lawful and moral for one who is not a member of the bar may still be improper for an Advocate
and that his conduct is required to conform to the rules relating to the duty to the Court, the duty
to the client, to the opponent, and the duty to the colleagues, not only in letter but also in spirit.
It is in the light of these principles the Disciplinary Committee would be required to approach the
question as regards the guilt or otherwise of an Advocate in the context of professional
6

misconduct levelled against him. In doing so apart from conforming to such procedure as may
have been outlined in the Act or the Rules, the Disciplinary Authority would be expected to
exercise the power with full consciousness and awareness of the paramount consideration
regarding principles of natural justice and fair play.
In the present case the appellant has not been afforded reasonable and fair opportunity of
showing cause inasmuch as the appellant was not apprised of the exact content of the
professional misconduct attributed to him and was not made aware of the precise charge he was
required to rebut. The conclusion reached by the Disciplinary Committee in the impugned order
further shows that in recording the finding of facts on the three questions, the applicability of the
doctrine of benefit of doubt and need for establishing the facts beyond reasonable doubt were not
realised. Nor did the Disciplinary Committee consider the question as to whether the facts
established that the appellant was acting with bona fides or with mala fides, whether the
appellant was acting with any oblique or dishonest motive, whether there was any mens rea,
whether the facts constituted negligence and if so whether it constituted culpable negligence. Nor
has the Disciplinary Committee considered the question as regards the quantum of punishment in
the light of the aforesaid considerations and the exact nature of the professional misconduct
established against the appellant.
Since all these aspects have not been examined at the level of the Bar Council, and since the
matter raises a question of principle of considerable importance relating to the ethics of the
profession which the law has entrusted to the Bar Council of India, it would not be proper for the
Supreme Court to render an opinion on this matter without the benefit of the opinion of the Bar
Council of India which will accord close consideration to this matter in the light of the
perspective unfolded in this judgment both on law and on facts. Hence it was considered
appropriate to remit the matter back to the Disciplinary Committee.

Bar Council of India v. High Court of Kerala

(15 PAGE CASE)
Decision: Supreme Court, April 27, 2004
Bench:3 judges (Chief Justice V.N. Khare, Justice Brijesh Kumar & Justice Sinha)
7

Facts: The Petitioner, being the Bar Council of India, filed a writ petition with the Supreme
Court challenging Rule 11 of the High Court of Kerala Rules saying that it violates Articles 14
and 19(1)(g) of the Constitution od India. It is also violative of Section 34(1) of the
Advocates Act, 1961, which authorises the high court to make rules under the Act, because it
seriously impinges upon and usurps the powers of adjudication and punishment that is conferred
upon the Bar Councils under the Act as also it violates the principles of natural justice.It is
pertinent to know that Rule 11 states the following:No advocate who has been found guilty of contempt of court shall be permitted to appear, act or
plead in any court unless he/she has purged himself of contempt.
Issue: Whether Rule 11 of the High Court of Kerala Rules, which forbids a lawyer from appear,
acting or pleading in any court until he/she has had himself purged of contempt of court by the
order of the appropriate court, is constitutional?
Decision:The Supreme Court divides its decision into subdivisions based on topic. I have done
the same and summarised each part as concisely as possible.

CONTEMPT OF COURT: The Supreme Court, in this case, starts off by talking of the
history and origination of contempt of court as a concept. Under Article 129 and 215 of
the Constitution, the SC and HC (being courts of record), have the powers to punish for
contempt of itself. Further, it also has the inherent powers to do so. The court then goes
on to say that an advocate has considerable freedom in conducting his case and that in the
interest of his client he/she may even cast reflections upon the character, conduct or credit
of the parties or witnesses provided that they are relevant to the issue before the court and
are not defamatory in character. So long as he/she does not insult the court, a lawyer will
not be held for contempt. The Supreme Court, in this judgement, then proceeds to cite
several Indian and UK decisions talking about what amounts to Contempt of Court. The
Court even discusses quotations of famous judges in UK who discussed what amounts to
contempt of court. The most relevant of these cases was that of D.C. Saxena (Dr.) v.
Honble Chief Justice of India (1996 SC Decision) wherein the Apex court held that the
right of freedom of speech conferred under Article 19 of the Constitution cannot stand as
a bar to the powers of this court under Article 129 and those of the High Court under 215
8

as these courts are independent and not subject to Art. 19; particularly when clause (2)
excludes the operation thereof. The Supreme Court in this case then holds the view based
on the cases of what amounts to contempt it relied on that an advocate does not enjoy an
absolute privilege when acting in the course of his professional duties. It is not justified
that a lawyer makes a personal attack upon the complainant or witnesses on matters not
borne out by the record or uses language that is obscene or abusive or in making vulgar
gestures in court. The power of contempt is exercised only cautiously and rarely but with

due care and only when it becomes imperative to uphold the rule of law.
ADVOCATES ACT: The Supreme Court brings up Section 30 of Chapter II of the Act
which talks of the right of an advocate to practise in all courts, before tribunals and
persons entitled by law to take evidence and before any other authority or person before
whomthe advocate, under present law, is entitled to practise. The Court then goes to say
that this provision has not yet been brought to force. The Court then states that an appeal
lies to the Bar Council of India against a decision made as per Section 35 (Punishment of
advocates for misconduct by State Bar Council) of the Act whereas an appeal lies to the

Supreme Court against an order made by the BCI.

Distinction between Contempt of court and misconduct by an advocate: The court, in
this case, says that the two concepts stand on different footings. A person does not have a
fundamental right to practice in court, only a statutory right under the Advocates Act. The
Court relies on the case of Supreme Court Bar Assn. case (1998)and holds that the High
Court may prevent the contemner advocate to appear before it till he/she purges himself
of contempt because it possesses the jurisdiction to withdraw the privilege of an advocate
to practice before it (since the HC confers advocates the privilege of practicing before it).
That being said, the HC cannot suspend or revoke the license of an advocate to practice
in other courts or tribunals. The court then cited Harish Uppal case (2003) to hold that
conduct in court of an advocate and its control is only within the domain of courts and
rules made in furtherance of this are binding and valid. The SC, in that case held that,
Such a rule, if framed would not have anything to do with the disciplinary jurisdiction
of the bar councils...the right to practice, no doubt, is the genus of which the right to
appear and conduct cases in the court may be specie...The power to frame such rules
(Rule 11) should not be confused with the right to practice law. While the Bar Council
can exercise control ober the latter, the courts are in control of the former.
9

This court then holds on the basis of theaforementioned that the Bar council of India, not
being a citizen, is not entitled to raise the question of validity of rules on the touchstone

of Article 19 of the Constitution. It has no fundamental right.

NATURAL JUSTICE: The Court holds, by relying on a number of cases, that natural
justice concepts interpretation differs from case to case. It has no straight jacket formula.
That being said, the SC in this case held that the contemner does get his/her opportunity
of being heard and that is when he/she purges his conduct, ergo, apologises to the
court.Hence, the contention of the petitioners counsel that a contemner does not get the
opportunity of being heard because of Rule 11 is untrue because, even though the
advocate is not allowed to appear in the HC under Rule 11 in his/her capacity as a lawyer,
he/she may approach the court to purge his conduct and hence he will be afforded the

opportunity to be heard.
CONCLUSION: The SC holds that Rule 11 is not ultra vires Art. 14 and 19 of the
Constitution of India and dismisses the appeal.

BHUPINDER KUMAR SHARMA v. BAR ASSOCIATION,

PATHANKOT
(2002) 1 SCC 470
(BEFORE D.P. MOHAPATRA AND SHIVARAJ V. PATIL, JJ.)

(6 Pages)

Judgement delivered by Shivaraj V. Patil, J.

This is a civil appeal under S. 38 of the Advocates Act, 1961 (deals with Appeal to SC) against
the judgement and order dated 4-11-1998 passed by the Disciplinary Committee (DC) of BCI,
confirming the order passed by DC of Bar Council of Punjab & Haryana (P&B) removing the

10

name of the appellant from the States Roll of Advocates under S. 35 (3) (d) of the Act (deals
with Punishment for misconduct).
Appellant enrolled in 1994. In 1995, the Respondent-Association made a written complaint
against the Appellant to the State Bar Council alleging misconduct. The appellant was alleged to
have carried on business even after his enrolment at the Bar. He was alleged to have carried on
the following business activities1) He was running a photocopier documentation centre in the Court compound, Pathankot, and
the space for the same was allotted to the appellant in his personal capacity on account of his
being handicapped.
2) He was running a PCO/STD booth which was allotted in his name from the P & T Department
under handicap quota.
3) He was the Proprietor/General Manager of the Punjab Coal Briquettes, Pathankot, a private
concern and he was pursuing the business/his interest in the said business even on the date when
his statement was being recorded by the State Bar Council DC on 12-5-1996.
The appellant had contended that his father and brother were carrying on the business subsequent
to his enrolment under some oral arrangement.
The DCs of State Bar Council as well as BCI appreciated and re-appreciated respectively the
evidence before them and came to the conclusion that the appellant was in fact guilty of
misconduct and thereby removed his name from the rolls. Hence the appeal.
The claims by the appellant in the present appeal were two-fold:
1) The allegations made in the complaint were not established or proved, judged by the standard
or proof required in case like this, the evidence not properly appreciated.
2) Even assuming the misconduct is proved, the punishment imposed on the appellant is grossly
disproportionate.

11

The respondent contended that the evidence on record clearly justifies the order and that the
appellant is still continuing carrying on the business as supported by a report of the Sub-Judge,
Pathankot, made to the SC. Therefore the punishment is proper.
Evidence brought on record:

Column 12 of his Enrolment Application Form where the appellant falsely declared that
he has never been engaged or was engaged in any trade, business or profession showing

suppression of material fact.

Deposition of Senior Telecommunication Office Assistant that STD/PCO has been
allotted to the appellant in 1992 and the name of the appellant continues to be on record
subsequent to enrolment and no intimation for a transfer of the same to be made to his

brother.
Deposition of an SDO office clerk stating that the Space for Kiosk for installation of
photocopy machine was allotted by Deputy Commissioner, Gurdaspur, in 1991 to
appellant in handicap quota, which was available on record, and no intimation to change

or transfer the lease was made. Lease amount continues to be paid by the appellant.
Depositions by appellants father and brother denying the existence of any oral

arrangement for transfer of any business.

1999 order passed by SC directing Sub-Judge, Pathankot to enquire about the name board
and inscription in Punjabi, in the PCO booth which disclosed the appellants name and
was therefore found to stand against the appellant. This was in pursuance to an affidavit
filed by the appellant in earlier in 1999 that the petitioner is not personally engaging
himself in any activity, business or any other profession while continuing his enrolment.

Keeping in view the above mentioned, the Court held that the finding recorded holding the
appellant guilty of professional misconduct is supported by and based on cogent and convincing
evidence even judged by the standard required to establish misconduct as required to prove a
charge in a quasi-criminal case beyond reasonable doubt. However, having regard to the nature
of misconduct and taking note of the handicap of the appellant, debarring him from practising for
all time was held to be too harsh. The punishment was modified to debar the appellant from
practising up to the end of December 2006.

12

Biji vs Registrar, High Court Of Kerala on 9 August,

2001
Facts: The petitioners before the completion of five years of practise took up the posts of
Assistant Public Prosecutor Grade II (AAP II), though temporarily. They had not completed two
years in those posts. The petitioner applied pursuant to the notification issued by the High Court
of Kerala, inviting applications from qualified candidates for appointment to the post of MunsiffMagistrate in the Kerala Judicial Service. The qualification prescribed inter alia, is that the
candidate should have a five years practice as an Advocate and for recruitment by transfer, a
practice of three years prior to his appointment to any one or more of the feeder categories
mentioned in the notification and should have functioned at least for a period of two years in
such feeder categories to be eligible (clause 4(11)). The applications of the petitioners were
rejected by the High Court on the ground that the petitioner was not practising as Advocates.
These rejections are challenged in these Original Petitions.
Petitioners contended that merely because they have taken up the position of APP II, they did not
cease to be practising advocates having a standing at the bar and the period during which they
are functioning as AAP II should also be added on to the earlier period in which they were
practising as advocates and if the periods are added up, they would satisfy the five year period of
practice envisaged in the notification prescribing qualifications. The petitioners relied on the
interpretation of R. 49 of the Bar Council of India Rulesdecision in SushamaSuri v. Govt. of
National Capital Territory of Delhi ((1999) 1 SCC 330) in support of their contention pointing
out that since they are actually practising before Courts, they must be understood as practising
advocates and the period during which they have taken up the position of the AAP II should also
be reckoned as "practice".
Under R. 49 of the Bar Council of India Rules, an advocate shall not be a full-time employee of
any person, Government, firm, corporation or concern and on taking up such employment, shall
intimate such facts to the Bar Council concerned and shall cease to practise as long as he is in
such employment. However, an exception is made in such cases of law officers of the
Government and corporate bodies despite his being a full time salaried employee if such law
officer is require to act or plead in court on behalf of others. It is only to those who fall into other
categories of employment that the bar under R. 49 would apply.
13

Respondents contended that under R. 49 of the Bar Council of India Rules, the petitioner could
not be treated as law officers so they cannot be taken to be practising advocates within the
meaning of clause 4 of the notification. Counsel referred to the Kerala Government Law Officers
(Appointment and Conditions of Service) and Conduct of Cases Rules, 1978 to point out that
aAAP II or even a Public Prosecutor is not included in the definition of "Government Law
Officer" and hence the second part of R. 49 of the Bar Council of India Rules has no application.
HELD: The qualification for the post of AAP II is that the person must be a graduate in law and
must be a member of the Bar and must have not less than three years of active practice in
Criminal Courts. Temporary appointments like these are made under R.12. The prosecutors so
appointed can only appear on behalf of the Government to prosecute in that particular Court and
that is on the strength of S. 25of the Code of Criminal Procedure. Hence the second part of R. 49
of the Bar Council of India Rules exempting Law Officers from disqualification does not apply
to APPs II appointed under the Special Rules in Kerala, though it may be a temporary
appointment in terms of R. 12 thereof. Petitioners do not qualify as Law Officers under the
Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of
Cases Rules, 1978. Since they have not completed the requisite number of years for being
considered for appointment by way of recruitment by transfer, again they are found to be not
qualified to come under that category. Hence the application was rejected.

Shri C.K Daphtary and Others v.Shri O.P Gupta and

Others 1971 (1) SCC 626
JUDGES: S. M. Sikri, M. Shelat, C. A. Vaidialingam, A. N. Grover, A. N. Ray
NO. OF PAGES: 28
PARTIES:
Petitioners Shri C.K. Daphtary and three others
Respondent 1 O.P. Gupta (hereinafter OPG); Respondent 2 Rising Sun Press, Delhi (through
its proprietor); Respondent 3 M/s. Kanak Book Depot (not traced)

14

FACTS:

Petition under Art. 129

The petitioners brought to notice a pamphlet containing scurrilous aspersions on Shah J.
regarding a judgment in a civil appeal in which Respondent 1 (OPG) was involved.
Another judge Hegde J. also heard this case with Shah J. This was prepared for the

impeachment of Shah J.
It was alleged that the pamphlet had been printed and published with the specific aim to

bring disrepute to and scandalize the Court as it was widely and unnecessarily circulated.
Also alleged that the pamphlet disparages the court and tends to weaken the confidence

of people in it.
In their prayer, the petitioners demanded that the respondents to show cause as to why
they should not be committed for contempt of court and after hearing, order an
attachment and committal, impose any penalty that may be deemed fit and pass such

order as the Court may think proper.

It was clear that OPG had personally distributed the pamphlets for which he was charging

Re. 1/-, from evidence rendered.

This case was called for hearing on Nov. 23rd 1970 the court served notices on the
respondents to be returned on December 3rd, and then again on December 9th, but these

were ignored by Respondent 1 (OPG).

The 2nd notice (to be returned on December 9th) was returned unserved and it was stated
by the wife of Respondent 1 (OPG), that he had gone to Poona. However, on enquires,
one Shri Kureel stated that OPG comes and visits him as a house guest on and off. From
this it was inferred that OPG was deliberately concealing himself to avoid service of

notice. Other notices also could not be served on account of him being out of station.
Thus, the court on Dec. 9th issued a non-bailable warrant for the arrest of OPG and his

production in court on Dec 14th, but he managed to elude the police also.
On Dec. 10th OPG sent a letter to the Registrar with his address in Puri stating that he
heard that the court required his presence and that he was trying to get there. He

requested that the matter be listed for January, 1971.

The Court felt that as the address on the letter was c/o The Station Master, Jagannath

Puri, he was still concealing his actual location and the warrant was to be executed.
Finally on Jan 25th OPG appeared before the Court and the petition was listed for hearing
on 12th February. On Jan 28th OPG filed an application alleging that the contempt petition
15

was not maintainable. The case listed for Feb 12th was adjourned to 18th February. OPG

who was directed to file an affidavit of the merits by 16th Feb., failed to do so.
On Feb. 22nd OPG moved for postponement as he wanted to engage lawyers who were

parliamentarians and busy till March 21st.

The object of these delay tactics was that C.J Shah (the judge who was abused in the
pamphlet) was due to retire on Jan 21st, 1971 as OPG wanted to file an affidavit hurling
MORE abuses at Shah, but wanted to wait after his retirement so as to use the defence

that there is no contempt with respect to a Judge who has retired.

On Feb. 18th, OPG filed a counter-affidavit as the Court held that the case would be heard

based on the affidavits already filed.

In the counter-affidavit, OPG apologized initially but then stated that in borderline cases
it was permissible to make an alternative and additional defence of no contempt and he

proceeded to do so.
In this statement he put forth a number of excuses and justifications for his behaviour and

went on to cast aspersions on the petitioners.

Respondent 2 Mela Ram [partner of Rising Sun] stated that OPG had approached him
for some printing in April 1970 but he had assigned the work to a contractor and had not
looked into it. He stated that OPG had not even paid for the prints and he apologized
unconditionally to the court.

ISSUES:

Maintainability of this petition.

Clarification of the existing law on contempt of court
Whether distributing the pamphlet amounted to contempt

CONTENTIONS:

OPG has alleged that the law relating to contempt in writings with respect to proceedings
which have finished is repugnant to Art. 19(1)(a) read with Art. 19(2) [freedom of speech
and expression]. He alleged that such a law was an unreasonable restriction on the

freedom of speech. He urged the court to apply the US law on this matter.
Art. 105(2) of the Constitution and Ss. 3 and 4 of the Parliamentary Proceedings
(Protection of Publication) Act, 1956 was relied on when he stated that the Parliaments
authority can be taken to be implied to this publication as there was no objection raised
16

against it and even if the publication was without authority only the Parliament can take

action.
CK Daphtary (petitioner), stated that Art. 19(1) (a) and Art. 19(2) dont even apply by
virtue of Art. 129. He also stated that the existing contempt law was not law as defined
under Art. 13 (3)(a) and that the existing law falls under reasonable restrictions.

HELD:

The question whether the existing law is law under Art. 13 (3)(a) has not been decided
upon as it was agreed that this law falls within the reasonable restrictions to Art. 19 (1), in

public interest based on a number of precedents.

With regard to whether the contempt was committed by circulating a pamphlet, the test is
whether the impugned publication is a mere defamatory attack or if it is calculated to
interfere with the due course of justice & proper administration. Only in the latter case
will it be punishable as contempt. The publication of a disparaging statement will be an
injury to the public if it tends to create an apprehension in the minds of people regarding

the integrity, ability or fairness of the judge.

The US law with this regard is different from the Indian position on free speech.
The court did not agree with the contention of OPG that the administration of justice is
not affected by an attack on the character of the Judge, and that after a case has been
decided, the severe and unfair criticism of a decision must be balanced against the harm
of not criticizing it at all. It was held that an attack of this sort undermines confidence in

the judiciary which in turn causes the due administration of justice to suffer.
Art. 129 and 142(2) enables the Supreme Court to punish for contempt of itself.
Though OPG tried to justify his position in the counter-affidavit, it appears that the
person who drafted it did so with a view to bring facts within the meaning of the
expression misbehaviour [Art. 124 (4)]. This is not so. On the contrary, these statements

themselves amount to gross contempt of court and the judges.

Though OPG stated that the pamphlet was distributed by members of the Parliament, no

complaints came against them.

Regarding his Art. 105 (2) defence, the Court felt that this article did not apply to this
particular case as nothing showed the publication of the pamphlet as one under the
authority of the Parliament. Also, the protection u/s. 3 is only given to newspapers and

17

broadcasting agencies and available only if such publication is made without malice for

the public good. This is not so in the present case.

The contention of OPG that Hegde J., the second judge, was not involved in the
allegation and that his name was included by the petitioners was dismissed on the
grounds that it was common knowledge that Hegde J was also hearing the case and there
is no more flagrant contempt of a Judge than to say that he surrendered his own

judgement in deference to or on dictation by another judge sitting with him.

It has been held that OPG should file his affidavit on the merits of the case without trying
to justify the contempt. If evidence were to be allowed to justify allegations amounting to
contempt of court it would tend to encourage disappointed litigants to avenge their defeat

by abusing the judge.

With regard to maintainability and the allegation by OPG that the petitioners have no
locus standi, it was held that the Court could take suo moto cognisance of contempt

issues. Also, the advocates are entitled to bring its to notice any contempt.
With regard to the impeachment motion OPG alleged that he had already put it into
motion in by a writ petition in 1969, but it was held that this is no defence to the

commission of contempt by circulation of the pamphlet.

The allegation that if the judge did not take cognisance of the contempt, then it was not
the place of the petitioners to do so and the allegation that this petition itself was a

contempt of court, were summarily dismissed.

With respect to Respondent 2, Mela Ram, it was held that due to his apology, no further

action needs to be taken.

From the facts a heavy sentence is called for, but the court leniently imposed only a
sentence of simple imprisonment for 2 months for OPG.

In the Matter of Mr G a Senior Advocate of the

Supreme Court AIR 1954 SC 557
B. Kumar Mukherjea, Sudhi Ranjan Dase, Vivian Bose, Ghulam Hasan, B. Jagannadhadas
Facts
G was an advocate in Bombay High Court and Supreme Court. He entered into agreement with
his client, in which the client had to share 50% of recoveries made in proceedings in matters
which G was engaged. The same was reported to the High Court which referred to Bombay Bar
18

Council 3 members investigated found amounted to professional misconduct. High Court

agreed and G was suspended for 6 months. HC judges considered they had no power to affect
his position as advocate of Supreme Court submitted copy of judgment to Supreme Court.
Based on this SC issued notice to G asking to show cause why disciplinary action should not be
taken. (Under Order IV Rule 30 of the Supreme Court Rules) At the same time G filed petition
under Article 32.
G in writ petition stated that he was reluctant to work on terms (which involved sharing the
recovery as client was not in a position to pay his fees) but he was insisted to do so and if he
didnt do so, the client would lose his genuine claim he reluctantly agreed.
Issue
Whether agreement with client to share recoveries made amounts to professional misconduct?
Held
G - Specially privileged class of persons, subject to certain disabilities which do not attach to
other men and which do not attach to them in a non-professional character. Bound to conduct
himself in a manner befitting the high and honourable profession to whose privileges to he has
been admitted and if he departs from the high standards which that profession has set for itself
and demands of him in professional matters, he is liable to disciplinary action.
This contract would be legally unobjectionable if lawyer not involved there is nothing morally
wrong, nothing to shock the conscience, nothing against public policy, public morals in such
transaction per se (only if legal practitioner not involved). But are these permissible under rigid
rules of conduct of members of a close professional preserve so that their integrity, dignity and
honour may be place above breath of scandal. Real question whether this kind of conduct is
forbidden or whether if once forbidden, has the ban been removed either directly or by
implication or by legislative action.
Such practice was prohibited as far as English barristers and solicitors in England were
concerned. (G- initially was with Bar in England) G - Argued that this rule applied to only to
members of English Bar and was abrogated in India in 1926 (Indian Bar Councils Act was
passed)
19

Difference between barristers and other classes of lawyers - examined in context of such
agreements; observed judgments referred deal with advocates and even where these advocates
were barristers the matter touched them as advocates of an Indian High Court and not because of
their special status as barristers. Rules laid down in decisions govern all advocates whether
barristers or otherwise.
SC quoting Bombay High Court termed it highly reprehensible, whether his practice be before
the HC or in mofussil, he will by so doing offend the rules of his profession and so render
himself liable to disciplinary jurisdiction of the court.
G argued Section 3 of Legal Practitioners (Fees), 1926 changed it now every legal
practitioner can settle terms of engagement & fees by agreement with client this entitles him to
enter into any agreement generally permitted by law legal practitioners governed by law of
contract not by rules imported from other countries. Court did not agree because LP(F)A does
not deal with professional misconduct dealt by Bar Councils Act no modification in
disciplinary jurisdiction of HC
G relied on practice in American states where agreement by attorney to purchase part of subject
matter of litigation was upheld - relied on to show contract of this kind cannot be dismissed as
reprehensible or morally wrong. For historical reasons court decided not to look into that! The
1937 ABA rule prohibits such practice.
No reason to import the American practice which is frowned upon even there. In a country like
ours where ignorance and illiteracy are the rule maintaining high standards is essential.
Conduct of G amounts to professional misconduct. In view of personal attacks on CJ in his writ
petition questioning his goof faith and attributing malice not to be dealt with lightly
suspended for 6 months.

CHANDRA SHEKHAR SONI (Appellants)v. BAR

COUNCIL OF RAJASTAN(Respondents)
(1983) 4 SCC 255 (5 page)
Coram: 3 judges A P Sen, E S Venkataramiah& R B Misra

20

Facts:
1. This appeal before the Supreme Court is against an order of the Disciplinary Committee
of the Bar Council of India. The Bar Council of India had upheld the order of the
Disciplinary Committee of the State Bar Council of Rajastan, by which the appellant had
been held guilty of professional misconduct and suspended from practice for a period of
three years under Section 35 of the Advocates Act, 1961.
2. There were two charges against the appellant.
i) The first charge was that he changed sides in a criminal case. The State Bar Council
gave the appellant the benefit of the doubt and held that though his conduct was
unprofessional, it was not tantamount to professional misconduct. The Bar Council of
India disagreed with the State Bar Council. The Supreme Court also concurred with
the Bar Council of India.
Observed: It is not in accordance with professional etiquette for an advocate while
retained by one party to accept the brief of the other. It is unprofessional to represent
conflicting interests except by express consent given by all concerned after a full
disclosure of facts or at least with permission from the learned magistrate. Counsels
paramount duty is to the client and where he finds there is conflict of interests, he
should refrain from any conduct harmful to his client.
ii) The second charge was that the appellant had taken money from a client in another
case for the purpose of giving bribe. The Complainant Bhaniya and his wife Galki
were assaulted and sustained head injuries. The Radiologist, after examining their Xrays, referred the matter to a specialist. The appellant approached Bhaniyaon the
representation

that

he

would

get

them

favourable

report

from

the

radiologist/specialist if they engaged him as counsel and paid a certain sum of money
(300 Rs.) to the doctor. The State Bar Council found the appellant guilty of
reprehensible conduct. The Bar Council of India upheld this disbelieving all versions
of the appellants defence. The Supreme Court concurred with the finding.
Observed: An advocate shall use his best efforts to restrain and prevent his client
from resorting to unfair practices. Advocate shall at all times conduct himself in a

21

manner befitting his status as an officer of the Court, privileged member of the
community and gentleman.
3. Other observations - Regarding quantum of punishment: The State Bar Council
directed that the appellant be suspended from practice for a period of three years as he had
brought, by his conduct, disrepute to the legal profession. Bar Council of India upheld the
sentence. The Supreme Court, however, felt that the sentence is rather severe considering
the appellant is merely a junior member of the bar. While strongly condemning the
appellants conduct, the Supreme Court reduced the period of suspension from three to one
year.
4. Held: Guilty of Professional Misconduct
_______________________________________________

D.S.Dalal v. State Bank of India & Ors., 1993 Supp

(3) SCC 557
FACTS:
D S Dalal, a practising advocate in Delhi, had his name removed from the rolls of advocates of
the Bar Council of Delhi and the sanad1 granted to him had been withdrawn. An Appeal was
filed under s.30, Advocates Act against the Bar Council of India.
SBI lodged a complaint before the Delhi Bar Council alleging that the appellant along with two
others was practising under the name and style of M/s. Singh and Company, a firm of
advocates and solicitors. These advocates were engaged by the SBI to file a recovery suit against
M/s Delhi Flooring (Pvt.) Ltd for the recovery of a certain sum. Mr. D.S. Dalal was one of the
advocates, also a partner at the firm, who were conducting the cases for and on behalf of the
Firm.
It is the case of the complainant that in 1975 the files relating to this recovery suit was handed
over to the firm and the firm had consequently submitted a bill for filing the recovery suit,
1 Sanad means a license to practice law.
22

including professional fees and other miscellaneous charges. 1/3rd of this was paid to the Firm
which was acknowledged by the firm under a receipt which was placed on record. However, the
Firm did not inform the bank as to whether the suit was filed and if so what was the state of the
proceedings. The bank wrote a letter to the firm asking for a copy of the plaint within a set time
failing which the bank would be compelled to withdraw the case from the firm. At that stage, one
of the partners wrote back to the bank stating that the suit had been filed on that day. Thereafter
the bank received no communication from the firm despite repeated reminders and not informed
in any manner on the progress of the case.
The lack of response prompted the Bank to engage the service of another Advocate, Mr. Arora, to
find out what happened to the suit filed. It was informed that the suit filed was returned by the
original branch to the Registry of the High Court with objections and the entire suit paper-book
had been returned to Mr B. Singh, another partner of the firm, for removing the objections and
thereafter the suit had not been refilled in the Registry of the High Court of Delhi.
ISSUE:
Advocates Act, 1961- ss. 35, 36 & 38.
The appellant and his associated were alleged to be guilty of serious professional misconduct. It
was further claimed that they had misappropriated the money paid to them and also that the files
were not yet returned.
The complaint was transferred from the Disciplinary Committee of Bar Council of Delhi to the
Bar Council of India as the case was pending for over a year. Despite notices being sent, the
orders had to be passed ex parte. Later on the application of the appellant the ex parte order was
set aside conditionally permitting the appellant to participate in the proceedings. The evidence
was concluded, arguments heard and the order was reversed.
BCI observed that the respondents had throughout adopted tactics of non-coopertaion purposely
with a view to protract the proceedings unnecessarily. The case against Dalal and Singh were
proved beyond reasonable doubt and their names were removed from the rolls of BCD and the
sanads granted to them were also withdrawn.

23

Singh filed a review petition which was still pending, while Dalal appeared on appeal before the
Supreme Court. The Bar Council has ordered stay of the order and Singh is continuing his legal
practice. The appellant argued that the files were misplaced/lost and this fact was intimated to the
Bank vide a letter informing them about the suit file being not traceable and further that the
record of the suit was to be restricted and refilled.
HELD:
The letter referred to by Singh was not produced before the BCI and there is no evidence on
record to show that the files were misplaced/lost but there was evidence to show that the files
were indeed returned from the Registry of the High Court. The guilt of the respondents was
proved beyond reasonable doubt.
The Court upheld this judgement of the BCI and dismissed the appeal without costs.

Daroga Singh and Ors. v. B.K. Pandey

Citation:(2004) 5 SCC 26
Total Number of Pages: 17
Decision by:2-Judge Bench of the SC on appeal against Patna HC order
Facts:
In the present case, Shri D.N. Barai, Ist Additional District and Sessions Judge, Bhagalpur was
attacked and assaulted by a large number of non-uniformed police officers, armed with lathis and
other weapons and shouting slogans following the day on which the bail petition of Investigating
Officer Jokhu Singh was dismissed for withdrawal by the party. They demanded the
unconditional release of Singh who had been remanded to judicial custody, in accordance with a
non-bailable warrant that had been issued against him by the said Magistrate, for his continual
failure to appear for cross-examination before the Court despite repeated notices and show
causes having been issued. The 5thAddl. District &Sessions Judge and the District & Sessions

24

Judge submitted reports to the High Court which disclosed the names of police officials who
were identified by the court staff, ShriBarai and the lawyers.
On the basis of these reports, proceedings under the Contempt of Courts Act, 1926 were initiated
in the High Court of Patna and a direction was issued to the Registry to issue notices to the above
referred persons along with a copy of the report, containing allegations against the concerned
persons, calling upon them to show cause as to why suitable action be not taken against them for
the alleged misconduct.
The Director General of Police found the said officers, guilty for the alleged incident subsequent
to which the State Government suspendedthe officials from service. A Commission of Inquiry
was also set up under the provisions of the Commission of Inquiries Act, 1952.
Show cause notices were issued to 26 officers, as to why they should not be proceeded against
for criminal contempt. After considering the evidence on record, eight persons were ordered to
undergo simple imprisonment for two months whereas the ring leader who was found to have
incited the act was to undergo three months. The present appeal was preferred against the said
decision.

Judgment:
Mainly, three contentions were by all the appellants:
(i)

The appellants contended that since the alleged contempt was that of a Court
subordinate to High Court and the allegations made constituted an offence punishable
under Section 228 IPC, the High Court could not take cognizance as it was barred
from doing so under proviso to Section 10 of the Contempt of Courts Act, 1926.
The Court held that what is made punishable under Section 228, IPC is the offence of
intentional insult to a Judge or interruption of court proceedings, but not as a
contempt of Court. The definition of criminal contempt is wide enough to include any
25

act by a person which would either scandalize the court or which would tend to
interfere with the administration of justice. It would also include any act which lowers
the authority of the Court or prejudices or interferes with the due course of any
judicial proceedings and is not limited to the offering of intentional insult to the Judge
or interruption of the judicial proceedings. The effect of the acts of the contemnors
has the tendency to effect the entire judiciary in the country and is a dangerous trend
which has to be curbed. If for passing judicial orders to the annoyance of the police
the presiding officers of the Courts are to be assaulted and humiliated, the judicial
system in the country would collapse.
(ii)

The second contention that was raised by the appellants was that the High Court
could not suomoto take action for the criminal contempt of a subordinate court, unless
a reference was made to it by the subordinate court or a motion was made by the
Advocate General under Section 15(2).
The Court held that the phrase "courts subordinate to it" used in Section 10 is wide
enough to include all courts which are judicially subordinate to the High Court, even
though administrative control over them, under Article 235 of the Constitution, does
not vest in the High Court. Under Article 227 of the Constitution, the High Court has
the power of superintendence over all courts and tribunals throughout the territories in
relation to which it exercises jurisdiction. Harmoniously construed, Section 10 and
Section 15(2) do not deprive the High Court of the power to take cognizance of
criminal contempt of a subordinate court, on its own motion, also. If the intention of
the legislature was to take away such a power from the High Court, it would have
been provided so in unequivocal language.

(iii)

The third contention that was raised was that the standard of proof required in a case
of criminal contempt is the same as in a criminal charge and therefore, the charge of
criminal contempt has to be proved beyond reasonable doubt.
The Supreme Court held that the procedure prescribed under the CrPC or under the
Evidence Act is not attracted by proceedings under Section 15 of the Contempt of
Courts Act. The High Court can deal with such matters summarily and adopt its own
procedure. The only caution that has to be exercised by the Court is that the procedure
26

followed must be fair and that the contemners are made aware of the charges leveled
against them and given a fair and reasonable opportunity to be heard. The Judge has
to remain in full control of the hearing of the case and immediate action is required to
be taken to make it effective and deterrent. When a judge is attacked by persons on
whose shoulders lay the obligation of maintaining law and order and protecting the
citizen against any unlawful act, the act must be severely condemned.
The police personnel is deployed in the Court campus for the purpose of maintaining
order and to see that not only the Judges can work fearlessly in a calm, cool and
serene atmosphere but also to see that anyone coming to the Court too feels safe and
secure. Every participant in court proceedings is either a seeker of justice or one who
comes to assist in administration of justice. A policeman should never forget that, like
every other citizen he too is subject to the Rule of Law, and that he who enforces law
must live by the law.
Decision:
Appeals were dismissed and the disciplinary authorities, the Criminal Courts and the
Commission before whom disciplinary proceedings, the prosecutions and enquiry respectively
were pending were directed to conclude the proceedings and trial at earliest.

DR. D.C. SAXENA, CONTEMNOR V. HONBLE THE

CHIEF JUSTICE OF INDIA
Bench: K. Ramaswamy, N.P. Singh and S.P. Bharucha, JJ
Court: Supreme Court
Citation: (1996) 5 SCC 216
Pages 53

FACTS
27

In this case the petitioner initiated a public interest litigation Under Article 32 to direct Shri RV.
Narsimha Rao, the President of Indian National Congress and the Prime Minister of India to pay
a sum of RS- 8.29 lakh and odd said to be due to the Union of India for the use of Indian Air
Force aircraft or helicopters from October 1, 1993 to November, 30, 1993. The Solicitor General
was asked to verify the contents of the petition and in pursuance of which he placed before the
court the original records. Thereafter the petition was dismissed by the Bench consisting of the
Chief Justice of India Mr A.M. Ahmedi, Justice SC. Sen and Justice KS. Panipoornan. Another
petition was filed by the petitioner against the Chief Justice of India, Mr AM.Ahmadi. In the
petition he several averments against the learned Chief Justice of India Mr AM. Ahmadi-and
sought for declaration that Justice AM.Ahmadi is unfit to hold the office as the Chief Justice of
India and he should be stripped off his citizenship. He wanted a direction for registration of an
FIR against him under various provisions of the Indian Penal Code for committing forgery and
fraud and under the Prevention of Corruption Act. He wanted a direction for prosecution of
Justice A.M. Ahmadi under the Prevention of Corruption Act and a direction to Justice Ahmadi
to reimburse from his pocket to the public exchequer the entire loss caused to the State as a
consequence of non-payment of the dues by Shri RV. Narsirnha Rao with interest at 18% per
annum.
The petitioner submitted inter alia that it was improper for the respondent to have heard the
earlier writ petition and that the respondent had attempted but failed to browbeat the alleged
contemnor; the dismissal of the earlier writ petition without recording the reasons there for
invited the comment, so much for the vaunted adherence to the twin principles of transparency
and accountability. The grounds for the relief which the alleged contemnor sought, inter alia,
were: for causing fabrication of court proceedings; for wilfully and advertently violating the
fundamental rights of not only the petitioner as an individual, but that of the people of India...;
for violation of the sacred oath of office by the respondent; for deliberate and wilful failure to
perform fundamental duties and stultifying their performance by the petitioner; and for
allowing his son who is practising in the Supreme Court to stay with him in his official
residence, and presumably misusing official facilities and prestige of office of Chief Justice of
India

28

The second writ petition came up for admission before a Bench comprising Verma, NP Singh and
Bharucha, JJ. After hearing the petitioner in person, the petition was dismissed. But observing
that the allegations made therein were reckless and scandalous to which the petitioner stood by,
the Court issued contempt notice to him. The petitioner contended that the Contempt of Court
Act is ultra vires the Article 19(1) (a) of the Constitution but the court did not find it relevant to
the case at hand as the Supreme Court has taken suo motu cognizance of contempt of the Court
under Article 129.

ISSUE
Whether the imputations made by the alleged contemnor are scurrilous attacks intended to
scandalise the Court and do they not impede due administration of justice?
To what extent the petitioner is entitled to the freedom of those expressions guaranteed under
Article 19(l) (a)? If they are found scandalous, whether he would get absolved by operation of
Articlel9 (1) (a)?
DECISION
The court observed that the freedom of speech and expression was required to be restricted in
the interest of the state therefore Supreme Court made it clear that the freedom of speech and
expression is subject to Articles 19(2), 129 and 215. Under Article 19(2) the restriction may be
imposed on the freedom of speech and expression if it amounts to contempt of Court. In the
exercise of the right of the freedom of speech and expression a person cannot be allowed to
lower the prestige of the court in the eyes of the people. Freedom of speech and expression
brings within its ambit the corresponding duty and responsibility and puts limitation on the
exercise of that liberty. It does not give licence to make unfounded allegations against any
institution, much less the judiciary. The Court has made it clear that fair criticism of the judicial
proceedings outside the pleadings of the Court is a democratic feature so as to enable the Court
to look inward into the correctness of the proceedings and the legality of the orders of the Court
by the Court itself for introspective. But a party has a duty and responsibility to plead as a part of
the averment or the prayer in the relevant portion with language befitting with the dignity of the
29

Court and the judicial process and not in self-abuse of the freedom of expression given under
Article 19(1) (a). Article 19(2) creates an embargo on the freedom of expression and excludes
from its operation the power of contempt of Court under the Act. The Supreme Court being
Court of record, its power under Article 129 is independent and is not subject to Article 19(1) (a).
Article 19(2) excludes the operation of Article 19(1) when speech or expression is trapped in
contempt of Court or tends to trench into it. When the Contempt of Court is committed by a
litigant, the freedom of expression being contemptuous becomes punishable under Article 129 of
the Constitution.
The Court has also made it clear that counsel or party appearing before the Court should
maintain dignity and decorum of the court and should not indulge in writing in pleadings,
scurrilous allegations or scandalisation against the Judge or Court. If the reputation and dignity
of the judges who decides the case are allowed to be prescribed in the pleadings, the respect for
the Court would quickly disappear and independence of the judiciary would be a thing of the
past.
The statement in the plaint that the Chief Justice of India gets no judicial protection unlike the
President for being prosecuted, even which Chief Justice,A.M. Ahmadi holds office as Chief
Justice of India and is accordingly liable to prosecution. This statement not only impinges upon
the protection given by Article 124(4) and under relevant provisions of the Protection of Official
Act, ex facie it is an outrageous tendency to lower the authority of the Court and interference
with judicial administration. Actually the scandalous statements in the pleading cannot be taken
as a valid method of initiating the action for the removal of a Judge on the ground of misconduct
or incompetency. An important, issue is whether the modification of the contemptuous
statements in the plaint will affect the contempt liability. In this case the Supreme Court has held
that the modification of the statement would not affect his contempt liability. Even if, the
contemnor withdraws or files statement in the modified form what the Court required to do is
whether his statements made in the writ petition originally filed constitute contempt of Court or
not and modification of the above statements would not be of material. Thus if the statement
made in the petition are contemptuous the contempt liability cannot, be avoided by modifying
the statements subsequently.

30

The contemnor, thus, was convicted for contempt and sentenced to undergo simple imprisonment
for a period of three months and to pay a fine in the sum of Rs. 2000. In default of such payment
within three months he was to undergo further simple imprisonment for a period of one month.

Delhi Judicial Services Association v. State of

Gujarat
Citation: (1991) 4 SCC406
3 Judge Bench
No. of Pages: 62
BRIEF FACTS
The newly appointed Chief Judicial Magistrate (hereinafter CJM) of Nadiad found that the
local police was not cooperating with the Courts in effecting service of summons, warrants and
notices on accused persons, as a result of which the entire judicial process was being delayed.
CJM complained to the SP and DGP, which annoyed the Inspector who in turn withdrew the
constables posted in the CJM Court. When the CJM directed the police to withdraw contempt
cases on their tendering unqualified apology, the Inspector complained about the CJM to the
Registrar of the High Court.

Later, during discussion of a case, the CJM was invited over to the police station by the Inspector
on the pretext of verification of papers. He went. On reaching there, he was forced to consume
alcohol and on his attempted refusal, he was handcuffed and tied with a rope. A panchnama was
prepared so as to implicate the CJM under the Bombay Prohibition Act under the dication of the
Police Inspector, and was signed by 2 others. Following this, the CJM was brought to the Civil
Hospital, where he was made to wait outside for 30 minutes in full public view. Furthermore, a
press photographer was called and policemen posed with the CJM who was allegedly in a
drunken state. This photo was published in the newspapers. At the hospital, the request of the
CJM to inform the District Judge of the entire issue was refused by the Police Inspector. On
examination at the hospital, the body of the CJM was found to have a number of injuries and the
Chemical Examiner concluded that there was alcohol content in the body but the quantity of
alcohol was not determined. When the lawyers arrived for getting the CJM out on bail, the Police
registered cases under Section 336 and Section 506 of the IPC as well, so as to make the offences
non bailable. The SP did not take any action on the matter, but created an alibi for himself
instead.
31

A number of writ petitions and contempt petitions were filed before the SC from all across the
country, and the Court took suo motu cognizance of the matter.
The facts were founded by a High Court judge who was appointed by the SC as Commissioner to
hold enquiry and submit report with regard to allegations in the petitions.
ISSUES INVOLVED
Whether incident constituted contempt of Court?
Whether SC has inherent jurisdiction to punish for contempt of inferior Courts under Art. 129,
and whether such jurisdiction is limited under the Act?
HELD
Criminal Contempt is wide enough to include any act that tends to interfere with the
administration of justice or lowers the authority of the Court. The Court protects a public interest
while using contempt power. It is not to protect the Court from insults to its dignity for its own
sake, but because there exists a public interest in preserving the decency and decorum of the
Courts. It is to protect the right of the public to justice which is not perverted or obstructed. Facts
show that the incident was not an assault on an individual officer of the Court, but on the
institution of the judiciary itself. The incident created ripples across the Country and highlighted
a dangerous trend where policemen would try to exert their authority. The lower Courts cater
administration of justice to the masses, and it is in public interest that their authority be
preserved. The SC has power of judicial superintendence and has a duty to protect the dignity of
inferior Courts. The power conferred on the SC by virtue of Articles 32, 136, 141 and 142 forms
part of the basic structure of the Constitution, which cannot be curtailed by any law. Since the SC
and the HC exercise concurrent jurisdiction under articles 32 and 226, and since the SC enjoys
inherent powers under Article 129, the SCs power to punish for contempt of subordinate Courts
cannot in any way be inconsistent with the Constitutional scheme, even though it is ordinarily the
duty of the High Court to do so. The prescription of power for the High Courts to take action
against for contempt of subordinate Courts under Section 15 of the Contempt of Courts Act, and
the prescription of appellate power for the Supreme Court under Section 19 does not affect the
inherent power of a superior Court under the Constitutional scheme. Constitutional powers stand
on a higher pedestal. The use of the term including the power to punish for contempt of itself,
as used in Article 129 must be construed as an inclusive provision, which does not restrict the
power of the Supreme Court. In fact, the term clearly indicates that the SC has power to punish
for contempt of itself and also for something else, which may fall within the inherent power of
another Court of record. If Article 129 is capable of being interpreted in two manners, such an
interpretation as would preserve the jurisdiction of the Supreme Court must be accepted. That
being said, the SC must exercise its inherent power to punish for contempt of subordinate Courts
sparingly, and only in exceptional circumstances such as the facts that arose in this case, where
32

the functioning of subordinate Courts all over the Country were adversely affected and the
administration of justice was paralysed.
The SC took into consideration the different degrees of the participation of the various culprits in
this episode and punished them in accordance with the degree of their involvement in the matter.
State Government was asked to take action against the DGP as well who was indifferent in the
matter, since he is the head of the Police and all that jazz.
The Court further laid down non-exhaustive guidelines which should be adhered to in case of
arrest and detention of a Judicial Officer. Guidelines to be enacted by State Governments and
High Courts:
Arrest should be only after intimation to a District Judge or the High Court as the case may be.
In case of necessity of immediate arrest, only a technical arrest or a formal arrest may be made.
Arrest must be communicated to the District and Sessions Judge of the concerned district, if
available.
Such arrested judicial officer must not be taken to the Police Station without the order or
directions of the concerned District and Sessions Judge.
No statement should be recorded or no chemical examination be made of such Judicial officer,
other than in the presence of his legal adviser or another Judicial officer of equal or higher rank,
if available.
No handcuffing.
No judicial officer must visit the Police Station on his own for his official duties without
intimating the District and Sessions Judge.
The Supreme Court also quashed the criminal proceedings pending against the CJM.
Other Provisions referred to in the Judgement
Article 136 of the Constitution: Supreme Courts appellate power under this provision is
plenary. (absolute) Even though the practice of the Court is that all other remedies must be
exhausted before the matter reaches the SC, this does not divest it of its wide powers of judicial
superintendence. This jurisdiction is unaffected by Articles 132, 133, 134 and 134A. The HC has
powers to correct the order of subordinate Courts under Article 227. Article 136 is of much wider
amplitude. Supreme Court has concurrent jurisdiction with the High Courts, in the matter of
contempt of subordinate Courts. Superior Courts of Record are not similar to Courts created by
virtue of statute. They have the power to determine their own jurisdiction, and no matter is
beyond their jurisdiction unless it is shown to be so under the Constitution.

33

Section 15 and Section 19, Contempt of Courts Act: The procedural aspects with regard to the
High Court having original jurisdiction and the SC having appellate jurisdiction in cases of
contempt of subordinate Courts does not curtail the inherent power of the Court, but are only
intended to save the time of the Court from hearing frivolous contempt cases.
Entry 77, List I read with Article 246 of the Constitution: Parliament may enact law, which
can prescribe procedure to be followed by the SC in punishing for contempt of itself, and the
maximum punishment. However, it cannot abridge the wide powers under Article 129.
Therefore, Contempt of Courts Act, 1971 does not impinge upon the powers of the SC under
Article 129.
Article 142(1) r/w Articles 32 and 136: With regard to the quashing of Criminal Proceedings
pending against the CJM, it was held that the power to do complete justice, along with the
plenary and residuary powers under Articles 32 and 136 justify quashing of criminal proceedings
even though there is no provision like Section 482 of the CrPC, which authorizes the SC to quash
criminal proceedings to prevent the abuse of the Court. (Section 482 authorizes the HC to do so
and not the SC.) The power under Article 142 (1) stands on an entirely different footing and
cannot be limited by any Act of Parliament.

Article 20(3): With regard to the contention that the facts found by the Commission could not be
taken into account as the facts were found after cross examination of the police officers against
whom contempt petitions were pending, it was held that offences of contempt are not like any
other ordinary offence, and therefore, it was not hit by Article 20(3). Three conditions must all
exist together for the application of Article 20(3):
Person must be accused of an offence.
He should be compelled to be a witness.
Against himself.
Contempt proceedings were distinguished on the following 2 grounds:
Contemnor is not in the same position as an ordinary accused. Even if contemnor is found
guilty, Court may not punish him if he tenders an unqualified apology. This is no defence in an
ordinary criminal proceeding.
The Court is both the accuser and the Judge in contempt cases. Therefore, the accused do not
qualify as persons accused of an offence, as under Article 20(3) and their testimony could be
recorded.
Article 374(2): Though Federal Court and Privy Council decisions are entitled to great respect,
they are not binding on the Supreme Court.
34

E.M. SHANKARAN NAMBOODRIPAD v. T.

NARAYANAN NAMBIAR
CITATION - (1970) 2 SCC 325
BEFORE - M. HIDAYATHULLAH, C.J, G.K. MITTER AND A.N. RAY, JJ.
(15 page case)
Facts:
This is an appeal from the conviction for the contempt of court of Rs 1000 fine or simple
imprisonment for one month by the by the majority opinion (Mathew, J., dissenting) of the
Kerala High Court, certified as fit for appeal under Article 134(1) C of the Constitution.
The conviction is based on certain utterances of the appellant, when he was Chief Minister, at a
Press Conference held by him at Trivandrum, on November 9, 1967. The report of the Press
Conference was published the following day in some Indian newspapers.
The offending passages of the news report of the Press Conference stated inter alia Marx and
Engels considered the Judiciary as an instrument of oppression and even today when the State set
up his (sic), not undergone any change it continues to be so. The Judges are guided and
dominated by class hatred, class interests and class prejudices and where the evidence is
balanced between a well-dressed pot-bellied rich man and a poor ill-dressed and illiterate person;
the judge instinctively favours the former. Election of Judges would be a better arrangement, but
unless the basic state set up is changed it cannot solve the problem.
The Chief Minister added even where the judiciary is separated from the executive it is still
subject to the influence and pressure of the executive. The Judiciary he argued was only an
institution like the President or Parliament or the Public Service Commission and even the
President is subject to impeachment, after all, sovereignty rested not with any one of them but
with the people. He also said that he did not subscribe to the view that it was an aspersion on
integrity when he said that Judges are guided and dominated by class hatred and class prejudices
and The High Court and the Supreme Court can haul me up, if they want.
35

In his affidavit before the High Court the Chief Minister explaining his Press Conference stated
that it did not offend the majesty of law, it contained only a fair criticism of the system of judicial
administration and he considered that it was not only his right but also his duty to educate public
opinion and that it could not be construed as contempt of court.
Issues:
1. Is the concept of scandalizing the judges and scandalizing whole judicial system
contempt? Has these concepts gone into desuetude?
2. Is the law of contempt encroaching upon the guaranteed freedom of speech and
expression in Article 19 (1) (a) of the Constitution?
3. What is the import of the teachings of Marx, Engels and Lenin Is Appellant guilty
distortion of these teachings?
4. Whether imputing class bias and attack on good faith of the judges by the appellant
contempt?
Issue 1 Held
(i) Scandalising the judge is a chief form of contempt. Scandalising the Judges or the courts
occurs, when the conduct of a person tends to bring the authority and administration of the law
into disrespect or disregard and included all acts which offend its dignity, affront its majesty or
challenge its authority. Such contempt may be committed in respect of a Single Judge or a single
court but may, in certain circumstances, be committed in respect of the whole of the judiciary or
judicial system.
(ii) It is not correct to say that the species of contempt called scandalising the court has gone
into desuetude.
Issue 2 Held
(i) The right to freedom of speech in Article 19(1)(a) is subject to the restriction Article 19(2)
which makes an exception in terms of contempt of court. These provisions are to be read with
Articles 129 and 215 which specially confer on this Court and the High Courts the power to
punish for contempt of themselves. While the right of freedom speech and expression is essential
to a free society, the Constitution as itself imposed restrictions in relation to contempt of court

36

and it cannot therefore be said that the right abolishes the law of contempt or that attacks upon
Judges and courts will be condoned.
(ii) Freedom of speech and expression will always prevail except where contempt is manifest
mischievous or substantial.
Issue 3 & 4 Held
(i) The statement of the appellant is based on the teachings of Marx, Engels and Lenin. The
teachings of Marx, Engels and Lenin are different. Marx, Engels and Lenin thought in terms of
withering away of the state. In all their writings there is no direct attack on the judiciary
selected as the target of peoples wrath, nor are the judges condemned personally. Engels
regarded courts as are of the means adopted by the law for effectuating itself. He only said that
judicial functionaries must be divested of sham independence which marked their subservience
to succeeding governments; he was not charging the judiciary with taking sides but only as an
evil adjunct of the administration of class legislation. He said the fault was with the State and the
laws, and not with the judiciary. Either the appellant does not know the teachings of Marx, Lenin
and Engels or has deliberately distorted their writings for his own purpose.
(ii) The Courts in India are not sui generis. They function under the Constitution which alone is
supreme. The power of interpretation by courts has never been used with bias in favour of
government or the rich class. If the Constitution and the law are defective the path of reform is
open. The courts cannot be maligned if these is a defect in law.
(iii) To charge the judiciary as an instrument of oppression, the Judges as guided and dominated
by class hatred, class interests and class prejudice, instinctively favouring the rich against the
poor is to draw a very distorted and poor picture of the judiciary. It is clear that it is an attack
upon Judges which is calculated to raise in the minds of the people a general dissatisfaction with
and distrust of all judicial decisions. It weakens the authority of law and law courts.
(iv) Judged from the angle of courts and administration of justice there is not a semblance of
doubt that the appellant was guilty of contempt of court. Whether he misunderstood the teachings
of Marx, and Engels or deliberately distorted them is not to much purpose. The likely effect of
illwords must be seen and they have clearly the effect of lowering the prestige of Judges and
37

courts in the eyes of the people. That he did not intend any such result may be a matter for
consideration in the sentence to be imposed on him but cannot serve as a justification.
(v) The ends of justice are amply served by (a) exposing the appellants error about the true
teachings of Marx and Engels (b) and sentencing him to a nominal fee. Fine is reduced from
Rs1000 to Rs 50. In default of payment simple imprisonment for one week will follow. With this
modification the appeal is dismissed.

E.S. Reddi v. Chief Secretary, Government of A.P.

and Anr.
Citation: AIR 1987 SC 1550 ; (1987) 3 SCC 258
Coram: A.P. Sen and B.C. Ray, JJ.

Pages: 8

Facts:
This is an application made by one T.V. Choudhary, a Member of the IAS, under suspension, for
recalling the Court's orders dated May 5, 1986 and August, 11, 1986 passed in Special Leave
Petition No. 14045 of 1985, on the ground that they prejudicially affect the applicants.
Background: The matter relates to defalcation of a huge amount of Rs.1.50 crores, by certain
officers of the State Government whose services were placed on deputation with the
Andhra Pradesh Mining Corporation. E.S. Reddy, member of IAS, Andhra Pradesh
cadre, who worked as the Vice-Chairman-cum-Managing Director of the Corporation
was suspended under Rule 13(1) of the A.P. Civil Services (Classification, Control &
Appeal) Rules, 1963. The main grievance of the petitioner in the SLP was that the
impugned order of suspension was wholly mala fide, arbitrary and irrational and
violative of Article 14 of the Constitution as there was no justification for the
differential treatment meted out to him while the applicant T.V. Choudhary, also a
member of the IAS, who worked in various capacities viz. as Central Manager,
Functional Director, Member, Board of Directors and Vice-Chairman-cum-Managing
Director and was involved in the commission of the alleged irregularities, had merely
38

been transferred from the Corporation and posted as Managing Director, A.P. State
Textile Development Corporation. The SLP was dismissed on it becoming infructuous,
as the State Government on September 6, 1986, based on the directions of the SC,
passed orders for suspension of R. Parthasarthy and T.V. Choudhary under Rule 13(1) of
the Rules.
In the C.M.P. No.25533/86, T.V. Choudhary, a member of the IAS and working as Managing
Director of the A.P. State Textile Development Corporation, had made reckless allegations and
cast aspersions on the Court. He asserts that:
The order of this Honble Court directing the Government to suspend the other delinquent
officers is made without affording an opportunity to the Applicant and presumably without
considering the relevant provisions of law, case law and the parameters of judicial power and the
necessity to observe the principles of natural justice.
It is submitted that the Order of this Hon'ble Court dated 11th August 1986 is illegal, insofar as it
directed the Government to suspend the applicant and others, in view of the fact that the
Government has exercised its discretion and transferred the applicant taking into consideration
the recommendation of the Anti-corruption Bureau. It is well settled that a Court of law cannot
compel a statutory authority to exercise its statutory discretion in a particular manner. The
legislative will in conferring discretion in an essentially administrative function cannot be
interfered with by Courts.
Issue: Responsibility of Senior Advocate in settling pleadings.
Held:
The court deprecated the conduct of the applicant and stated that the averments are highly
objectionable. It was expected that the applicant, who is a very senior member of the Indian
Administrative Service, should have shown greater responsibility before making such unfounded
allegations and uncalled for aspersions. On drawing the attention of the learned Counsel Shri
P.P.Rao, to the improper and objectionable averments made by the applicant, we were given the

39

impression that the application had been settled by the learned Counsel without noticing the
offending averments.
The court expressed its disapproval of the manner in which the arguments were advanced before
it on behalf of the applicant T.V. Choudhary. The court opined that, by virtue of the pre-eminence
which senior counsel enjoy in the profession, they not only carry greater responsibilities but they
also act as a model to the junior members of the profession. A senior counsel more or less
occupies a position akin to a Queens Counsel in England next after the Attorney General and the
Solicitor General. It is an honour and privilege conferred on advocates of standing and
experience by the Chief Justice and the Judges of the Supreme Court. They thus become leading
counsel and take precedence on all counsel not having that rank. They should, therefore, act in
full realisation of their duty to the Court alongside their duty to their clients and have the grace to
reconcile themselves when their pleas and arguments do not find acceptance with the Court. A
senior counsel though he cannot draw up pleadings of the party, can nevertheless be engaged to
settle i.e. to put the pleadings into proper and satisfactory form and hence a senior counsel
settling pleadings has a more onerous responsibility as otherwise the blame for improper
pleadings will be laid at his doors. They should maintain a sense of detachment and nonidentification with the causes espoused by them. In the present case not only were the arguments
advanced with undue vehemence and unwarranted passion, reflecting identification of interests
beyond established conventions but were of degrees not usual of enlightened senior counsel to
adopt. The majesty of law and the dignity of courts cannot be maintained unless there is mutual
respect between the Bench and the Bar and the counsel.
The application was dismissed for being clearly misconceived, penal cost of Rs.5000 was
directed to be paid by the petitioner to the Government.
Cases Referred:
Conflicting nature of the duties a counsel has to perform: (Roundel v. Worsley (1967) 3 All
ER 993, Lord Reid)
Every counsel has a duty to his client fearlessly to raise every issue, advance every argument,
and ask every question, however distasteful, which he thinks will help his client's case. As an
40

officer of the court concerned in the administration of justice, he has an overriding duty to the
court, to the standards of his profession, and to the public, which may and often does lead to a
conflict which may and often does lead to a conflict with his client's wishes or with what the
client thinks are his personal interests. Counsel must not mislead the court, he must not lend
himself to casting aspersions on the other party by witnesses for which there is no sufficient
basis in the information in his possession, he must not withhold authorities or documents which
may tell against his clients but which the law or the standards of his profession require him to
produce. By so acting he may well incur the displeasure or worse of his client so that if the case
is lost, his client would or might seek legal redress if that were open to him.
Counsels duty to his client and his duty to the Court: (Roundel v. W (1966) 3 All ER 657,
Lord Denning, M.R.)
It is a mistake to suppose that he is the mouthpiece of his client to say what he wants. He must
disregard the most specific instructions of his client, if they conflict with his duty to the court.
The code which requires a barrister to do all this is not a code of law. It is a code of honour. If he
breaks it, he is offending against the rules of the profession and is subject to its discipline.

Gobind Ram v. State of Maharshtra AIR 1972 SC

989
Coram: 5 Judge bench, Judgement by J. AN Grover
FACTS: Recovery suit was filed against the appellant ("A" hereinafter). A made certain
allegations against the plaintiff's advocate ("C" hereinafter) in the written statement and stated
that he was responsible for the suit. C filed a criminal defamation complaint against A. A filed a
transfer application in the defamation case stating that the magistrate is on friendly relations with
C and enjoys C's hospitality. The application was dismissed by the Addl. Sessions Judge who
also recorded that a report was to be submitted to the HC to take action for contempt of court
against A under S. 3(2) of the Contempt of Courts Act. HC convicted A sentencing him to 4
weeks simple imprisonment and 1000 Rs. fine. A filed SLP in SC.

41

Issue: Whether a mere libel or defamation of a Judge amounts to Contempt of Court?

Held: The test when deciding each case would be whether the impugned publication is a mere
defamatory attack on the Judge or whether it is calculated to interfere with due course of justice
by the Court. Only in the latter case it will be punishable as contempt. It is unfortunate that A
made allegations about social intimacy of judicial officers which may or may not be defaming
the Judges but those allegations did not amount to contempt of court. HC Conviction quashed.

Ex. Captain Harish Uppal Vs. Union of India (UOI)

and Anr.
[ (2003) 2 SCC 45 ]
Coram : G.B. Patnaik, C.J., Doraiswamy Raju, S.N. Variava, D.M. Dharmadhikari and M.B.
Shah, JJ.
Background : In light of the growing phenomenon of lawyers going on strike at the slightest
provocation, writ petitions were filed that raised the question as to whether lawyers have a right
to strike and/or give a call for boycotts of Court/s. Also, An interim Order was passed by the
Supreme Court in Writ Petition (C) No. 821 of 1990 which directed lawyers to exercise self
restraint in situations where they were called on to participate in strikes and boycotts. In spite of
the directions, the Bar Council of India had not incorporated them in the Bar Council of India
(Conduct & Disciplinary) Rules. The petitioners sought a declaration that such strikes and/or
calls for boycott are illegal.
Issue : Whether lawyers have a right to strike and/or give a call for boycotts of Court/s.
Held :
1. Strikes by Advocates are Illegal and unjustified. They may only protest in a peaceful
manner outside Court premises. The High Courts were directed to frame rules under
Section 34 of Advocates Act to regulate conduct of lawyers in Courts.
2. There is no fundamental right, either under Article 19 or under Article 21 of the
Constitution, which permits or authorises a lawyer to abstain from appearing in Court in a
42

case in which he holds the vakalat for a party in that case. The protest, if any as required,
can only be by giving press statements, T.V. interviews, carrying out-of-Court premises
banners and/or placards, wearing black or white or any colour arm bands, peaceful
protest marches outside and away from Court premises ; going on dharnas or relay fasts,
etc.
3. The lawyers holding vakalats on behalf of their clients cannot refuse to attend Courts in
pursuance to a call for strike or boycott. All lawyers must boldly refuse to abide by any
call for strike or boycott. No lawyer can be visited with any adverse consequences by the
Bar Association or the Bar Council and no threat or coercion of any nature including that
of expulsion can be held out. No Bar Council or Bar Association can permit calling of a
meeting for purposes of considering a call for strike or boycott and requisition, if any, for
such meeting must be ignored. Only in the rarest of rare cases where the dignity, integrity
and independence of the Bar and/or the Bench are at stake, Courts may ignore (turn a
blind eye) to a protest abstention from work for not more than one day. However, it will
be for the Court to decide whether or not the issue involves dignity or integrity or
independence of the Bar and/or the Bench. Therefore, in such cases, the President of the
Bar must first consult the Chief Justice or the District Judge before advocates decide to
absent themselves from Court. The decision of the Chief Justice or the District Judge
would be final and have to be abided by the bar. If a lawyer, holding a vakalat of a client,
abstains from attending Court due to a strike call, he shall be personally liable to pay
costs which shall be in addition to damages which he might have to pay his client for loss
suffered by him.
4. Grievances redressal committees at taluk level, district level, High Court level and
Supreme Court level should be established so that grievances of the advocates at all
levels could be resolved. If action is required to be taken on the grievances made by the
advocates, it should be immediately taken. If grievances are found not to be genuine, then
it should be made clear so that there may not be any further misunderstanding.
5. It was directed that all the Bar Associations in the country shall implement the resolution
dated 29th September, 2002, passed by the Bar Council of India, and under Section 34 of
the Advocates Act, 1961, the High Courts would frame necessary rules so that
appropriate action can be taken against defaulting advocate/advocates.

43

6. Advocates being Officers of the Court are a part and parcel of the judicial system and
cannot engage in strikes because strikes interfere with administration of justice. They owe
a duty to their client and cannot disrupt Court proceedings and put the interest of their
clients in jeopardy
Ratio Decidendi: For just or unjust cause strike cannot be justified, as sufferer is society-public
at large.

Harishankar Rastogi v. Girihari Sharma and Ors.,

19782 SCC 165
Bench V.R. Krishna Iyer
Brief Facts- The petitioner appeared in person and sought permission to be represented by
another person who is not an Advocate, in place of an Advocate Amicus Curiae appointed by the
Court bringing this case into the ambit of the meaning of S.2(a) of the Advocate,Act1961
Issues and Decision- The court looked into the aspect of right to practice in a court under S30(1)
of the Advocates Act subject to reasonable restriction. Not allowing a person to be represented by
a non-advocate for any reason will be a denial of justice in a country where illiteracy still
prevails. A person who is a party to a proceeding can get himself represented by a non-advocate
in a particular instance or case. Practicing a profession means something very different from
representing some friend or relation in one case. The court stated the Article 19 does guaranty
right to freely practice any profession but the reasonable restriction in this scenario is the
Advocates act which entitles the only class of persons eligible to practice the profession of law
shall be advocates. Depending on the facts of a case Permission may be granted by the Court
taking the justice of the situation and several other factors into consideration for nonprofessional
representation. But most important consideration for the court would still be dispensation of
justice and the overview that any person with no knowledge of law may not be good enough for
a case which deals with a lot of intricate matters.

44

A private person who is not an Advocate, has no right to come to Court and claim to argue for a
party. He must get the prior permission of the Court for which the motion must come from the
party himself. Even then the court can withdraw the request if it feels that the non-advocate party
is reprehensible.
Decision In this case the petitioner showed no confidence in the advocate assigned to him and
thus the court considered the assignment of the case to the friend, who seemed to be familiar
with the law to proceed with the same. Thus the petition was allowed.

(Appellants) vs.
(Respondents)
Hikmat Ali Khan

Ishwar Prasad Arya & Ors.

Civil Appeal No. 4240 of 1986, decided on Jan 28, 1997

Judges:

S.C.

Agrawal,

J.

TOPIC: Professional Misconduct & Moral Turpitude

Brief Facts:
Ishwar Prasad Arya, advocate registered with the BC of UP practicing at Budaun where during
lunch interval on (18-5-1971), he assaulted his opponent Radhey Shyam in the courtroom of the
Munsif/Magistrate with a knife after which a shot was fired by him with no casualties. After the
investigation, he was prosecuted for offences under 307 IPC (Attempt to Murder) & 25
of the Arms Act and was convicted by the 1st Temporary Civil and Sessions Judge for 3 years
and 9 months respectively for the offences, which was further maintain by the High Court.
Before he could be arrested to undergo the punishment, a copy of a letter purporting to have been
sent by Shri. L.R. Singh Deputy Sec, Ministry of Home, U.P, Lucknow was received in the Court
of the 3rd Additional District & Sessions Judge, Budaun who was responsible for the earlier
order executed, on its abolition. In the letter it was stated that the Governor has been pleased to
suspend the conviction of the Respondent under Article 161 of the Constitution (Power of
Governor to grant Pardon) and until further orders were to remain free. The proceedings
45

were stayed despite repeated enquiries and the sentence awarded suspended till, when on receipt
of a crash radiogram message from the Home Ministry, it was found that the mentioned letter
was fraudulent and thereupon a warrant for the Respondent's arrest was immediately issued by
the court and sent to Budaun Jail.
Shri. G.S. Sharma, 3rd Addtl. District and Sessions Judge, sent a complaint containing the above
facts to the Chairman, Bar Council of U.P for taking action against Respondent I under 35
(Punishment for Misconduct) Advocates Act, 1961. On the basis of the said complaint,
disciplinary committee (DC) proceedings were initiated against Respondent 1, and found him
guilty of gross professional misconduct by taking the benefit of a forged and fabricated
document prepared at his behest and directed he be barred from practice as an Advocate for a
period of 2 years. He filed an appeal against the BC & DC order and the said appeal was allowed
and thus the previous order was set aside on the basis of a lack of material evidence which could
reasonable hold Respondent 1 prepared the said Document.
The Appellant, Hikmat Ali Khan, submitted a complaint against him to the Secretary of the BC
of U.P reminding him of the previous instances of trouble caused by the Respondent which has
resulted in this outcome of him remaining scot-free. It was also mentioned in the complaint that
the Respondent 1 is noted as a 'Bad Character' in Register No. 8 of the Police Station, Budaun
and that a number of criminal cases have been registered against him. It was prayed for that a
fresh enquiry in the matter may be made upon him as he is a blot on all other Advocates and thus
his registration to Advocacy be cancelled. In the said proceedings, Respondent 1 appeared and
filed his written statement after which he did not appear nor participate hence leading to ex-parte
proceedings against him. The DC with regard to all the circumstances held that it is unbecoming
of an Advocate to earn such a bad reputation and was liable to be punished and be debarred from
practice for 3 years. Appeals were filed by both the Respondent & Appellant against the order to
be set aside & on the other hand to be enhanced and his to be removed from the roll of
Advocates. Both the appeals were disposed of by the DC.
Held:
In view of the provisions of 35(b)(reprimand), (c)(suspend) & (d)(remove from rolls)
and 24-A(Moral Turpitude) of the Advocates Act, 1961 , the conduct involving
46

conviction of an offence involving moral turpitude which could disqualify a person from being
enrolled as an advocate has to be considered a serious misconduct when found to have been
committed by a person who is enrolled as an Advocate and it would call for the imposition of the
punishment of removal of the name of the advocate from all the rolls of Advocates. The gravity
of misconduct committed by him is such as to show that he is unworthy of remaining in the
profession. In the instant case Respondent 1 has been convicted of the offence of attempting to
commit murder under 307 of the IPC and requires him to be directly removed from the Rolls
of Advocates. Thus, the appellants appeal is allowed and the order passed by the DC is upheld
with the slight modification that instead of his being debarred from practicing for 3 years, His
name shall be removed from the Rolls of Advocates. No orders as to costs.

Himalayan Cooperative Group Housing Society v

Balwan Singh
[2015 SCC OnLine SC 537]

Coram: H.L Dattu, S.A. Bobde and Arun Mishra

Background: The appellant is a co-operative society under which the respondents were enrolled
for allotment of apartments. The respondents failed to comply with demand for payment and in
view of this default a resolution was passed to expel the respondents from membership. The
Registrar of Co-operative Societies under Rule 36 of Delhi Co-operative Society Rules
confirmed this. A revision petition was preferred before the Financial Commissioner,
Government of NCT who reaffirmed the order. The respondents then appeared before the Writ
Court. The court observed that the Registrar and revisional authority have not committed any
error. However on the request of the respondents seeking additional allotment of apartments to
them, the Court issued certain direction for construction of the additional apartments and their
allotment to the respondents. The appellant authority had not authorized the learned counsel who
had appeared for them to make any concession in favour of the respondents. The preferred a

47

Review Petition which was dismissed and aggrieved by this an appeal was preferred before the
Supreme Court.

Issue: Whether counsel appearing on behalf of the appellant makes concession on behalf of the
appellant and would such a concession bind the appellant?
Held:
1. Lawyers are perceived to be their clients agents. Lawyers are also fiduciaries and
therefore their duties will sometimes be more demanding than those imposed on agents.
Lawyers assume all traditional duties that agents owe their principals and this they have
to respect their clients autonomy to make decision at a minimum, as to the objective of
the representation and there lawyers should follow the clients instruction rather than
substituting his own judgment for that of the client.
2. Rule 15 of the BCI rules mandates that the advocate shall uphold the interest of his
clients by fair and honorable means without regard to any unpleasant consequences to
himself or any other. Rule 19 prescribes that an advocate shall only act on the instructions
of his client or his authorized agent.
3. In Periyar & Pareekanni Rubber Ltd v State of Kerala, it was held that any concession
made by the government pleader cannot bind the government.
4. Therefore it is the duty of the advocate to not transgress the authority conferred on him
by the client. It is better to seek appropriate instruction from the client. The advocates
represents the client before the count and conducts proceedings on his behalf and there is
the link between the Court and client. His responsibility is onerous.
5. In the view of the above, the direction issued by the Writ Court and order passed by High
Court in review Petition was set aside.

In Re A an advocate
SINHA, BHUVNESHWAR P.(CJ) SUBBARAO, K.SHAH, J.C.DAYAL, RAGHUBAR
MUDHOLKAR, J.R.

48

CITATION: 1962 AIR 1337 1962 SCR Supl. (1) 288

The advocate on record had sent the Minister of Law of the state of Maharashtra a post card
along with a letter advertising and soliciting for work. The same was forwarded by the secretary
to the govt. of Maharashtra to the Registrar of this court (SC). When this was placed before the
CJ, he directed the registrar to informally enquire whether this letter had in fact been written by
him. He admitted to having sent it, but was unaware of committing any breach of etiquette.
The CJ constituted a committee and on their recommendation, a tribunal of 3 members of the Bar
and notice was served to the advocate to explain his alleged conduct. In reply, he denied having
written the letter and claimed the allegations were false and mala fide. He went on to say that
even if it were proved that it was written by him, there was nothing unprofessional or
objectionable and is not solicitation if one enquires from another whether he wishes to have
services of another advocate. When the Tribunal questioned him about whether the post card was
sent by him or from his office, he completely denied everything. The tribunal also made him
write and sign to compare the handwritings which matched.
He was confronted about the admissions made to the Registrar he claimed to not remember
details or making certain statements. The Registrar, on being called, affirmed his previous
statements. After recording the evidence, the Tribunal was satisfied that it had been written by
him and that he was not aware that it amounted to breach of professional etiquette.
Supreme Court:
When the advocate was to be heard, he denied everything initially, but on being pressed to make
a true statement, with his hand writing and the Registrars statements, he gave in and admitted to
writing it.
Held:
The advocate has condemned himself a liar and is either ignorant of the rules of the profession or
has no regard for its ethics. If he is ignorant, there is inadequacy in his training befitting a
member of this profession. If he knew such conduct was improper, he is unworthy of being a
member of this profession. Suspension for 5 years.

49

IN THE SUPREME COURT OF INDIA

In Re: S. Mulgaokar
Decided On: 21.02.1978Appellants: In Re: S. Mulgaokar
Equivalent Citation: AIR1978SC727, (1978)3SCC339, (1978)SCC(Cri)402, [1978]3SCR162
Hon'ble Judges/Coram: M. Hameedullah Beg, C.J., P.S. Kailasam and V.R. Krishna Iyer, JJ.

A news item was published in the Indian Express which was termed to be a milder publication.
The erring sentence in the publication was, "So adverse has been the criticism that the
Supreme Court Judges, some of whom had prepared the draft code, have disowned it". It was
found that the judges of court were not even aware of the contents of the letter before it was sent
by the Chief Justice of India to the Chief Justices of various High Courts suggesting, inter alia,
that Chief Justices could meet and draft a code of ethics themselves or through a Committee of
Chief Justices so as to prevent possible lapses from the path of rectitude and propriety on the part
of Judges.
The error was pointed out to the Editor of the Indian Express in a letter sent by the Registrar of
this Court.

In reply, the Registrar received a letter from the Editor showing that the contents

of the letter, which were confidential, were known to the Editor. Instead of publishing any
correction of the mis-statement about the conduct of Judges of this Court, the Editor offered to
publish the whole material in his possession, as though there was an issue to be tried between the
Editor of the newspaper and this Court and the readers were there to try it and decide it. It was
pointed out that the writer of an article of a responsible newspaper on legal matters is expected to
know that there is no constitutional safeguard or provision relating to the independence of the
judiciary which could possibly prevent Judges themselves meeting to formulate a code of
judicial ethics or to constitute a committee to formulate a code of judicial ethics and etiquette.
The article proceeded on the assumption that there was already a formulated code of ethics sent
to the Chief Justice which in fact was not correct. The counsel appearing for the alleged
contemnor to whom the notice was issued tried to convince the court that there was no intention
50

on the part of the writer of the article or the Editor to injure the dignity or position of the court
but the intention was only to direct public attention to matters of extreme importance to the
nation.
Beg, CJ observed that the judiciary is not immune from criticism but when that criticism is
based on obvious distortion or gross mis-statement and made in a manner which is designed to
lower the respect of the judiciary and destroy public confidence in it, it cannot be ignored. This
Court is armed, by Article 129 of the Constitution, with very wide and special powers, as a
Court of Record, to punish its contempts. Articles 121 and 211 of our Constitution, prohibiting
discussion of the conduct of a Supreme Court or a High Court Judge in the discharge of his
duties even by Parliament or a State Legislature, except upon a motion for his removal by the
constitutionally prescribed procedure of addresses presented by each House of Parliament after
proved misconduct or incapacity of a Judge and resolutions by 2/3 majorities of each House
present and voting, are there in our Constitution to ensure this (He relied on the case of Bennet
Coleman while delivering his judgement).In fact, nothing more than some suggestions or
examples of the kind of conduct which a possible code could deal with were sent to the Chief
Justices. If there was anything inappropriate which could be found in those suggestions that
could be criticized and set right or discarded. Better suggestions could be made and incorporated
in a proper code of judicial ethics and etiquette, if that could be framed.
The question whether an attack is malicious or ill-intentioned, may be often difficult to
determine, yet, the language in which it is made, the fairness, the factual accuracy, the logical
soundness of it, the care taken in justly and properly analyzing the materials before the maker of
it, are important considerations. Moreover, in judging whether it constitutes a contempt of Court
or not we are concerned more with the reasonable and probable effects of what is said or written
than with the motives lying behind what is done. A decision on the question whether the
discretion to take action for contempt of Court should be exercised in one way or the other must
depend on the totality of facts and circumstances.
It seems to me that it was also necessary for me to refer to the reasons why I consider codes of
ethics, and, in particular, judicial ethics are necessary. That is a matter of conscience and of
my understanding of what is right for a judge to do "without fear or favour, affection or ill

51

will". The Chief Justice made his statement clear and removed the mis-apprehensions, dropped
the proceedings.
Krishna Iyer, J. while concurring observed:
"The contempt power, though jurisdictionally large, is discretionary in its unsheathed exercise.
Contempt power is a wise economy to use by the Court of this branch of its jurisdiction. The
court will act with seriousness and severity where justice is jeopardized by a gross and/or
unfounded attack on the Judges, where the attack is calculated to obstruct or destroy the judicial
process.
He explained this position through the following principles;
1. The first rule in this branch of contempt power is a wise economy of use by the Court of
this branch of its jurisdiction.
2. The second principle must be to harmonise the constitutional values of free criticism, the
fourth estate included, and the need for a fearless curial process and its presiding
functionary, the judge. Section 2(1)(c) of the Contempt of Courts Act, 1971 provides :
Criminal contempt" means the publication (whether by words, spoken or written, or by
signs, or by visible representations, or otherwise) of any matter or the doing of any other
act whatsoever which- (i) scandalises or tends to scandalise, or lowers or tends to lower
the authority of any court.
This is an extremely wide definition however, all laws related to contempt provisions
would fall under Art 19(2)[Reasonable restrictions].
3. The third principle is to avoid confusion between personal protection of a libeled judge
and prevention of obstruction of public justice and the community's confidence in that
great process. The former is not contempt, the latter is.
4. The Fourth principle is that the Fourth Estate should be given free play within responsible
limits even when the focus of its critical attention is the court, including the highest
Court.
5. The fifth normative guideline for the judges is to observe in this jurisdiction is not to be
hypersensitive even where distortions and criticisms overstep the limits, but to deflate
vulgar denunciation by dignified bearing, condescending indifference and repudiation: by
judicial rectitude.

52

6. The sixth consideration is that, after evaluating the totality of factors, if the court
considers the attack on the judge or judges scurrilous, offensive, intimidatory or
malicious beyond condonable limits, the strong arm of the law must, in the name of
public interest and public justice, strike, a blow on him who challenges the supremacy of
the rule of law by fouling its source and stream.
He relied on the case of Perspective Publications Ltd. v. State of, Maharashtra [1971] 2
S.C.R. 779 Grover, J., speaking on behalf of the Court, reviewed the entire case law and stated
the result of the discussion of the cases on contempt as follows :
(1) It will not be right to say that committals for contempt for scandalizing the court have
become obsolete.
(2) The summary jurisdiction by way of contempt must be exercised with great care and caution
and only when its exercise is necessary for the proper administration of law and justice.
(3) It is open to anyone to express fair, reasonable and legitimate criticism of any act or conduct
of a judge in his judicial capacity or even to make a proper and fair comment on any decision
given by him
(4) A distinction must be made between a mere libel or defamation of a judge and what amounts
to a contempt of the Court.
The test in each case would be whether the impugned publication is a mere defamatory
attack on the judge or whether it is calculated to interfere with the due course of justice or
the proper administration of law by this Court. It is only in the latter case that it will be
punishable as Contempt.
(5) Alternatively the test will be whether the wrong is done to the judge personally or it is done
to the public.
Hidayatullah, C. J., in R. C. Cooper v. Union of India MANU/SC/0074/1970 : [1971]
1SCR512 observed : There is no doubt that the Court like any other institution does not
enjoy immunity from fair criticism.
P.S. Kailasam, J.
53

This is not a fit case to be proceeded with under the Contempt of Courts Act, 1971.
The Judgment which he(KRISHNA IYER)himself characterises as obiter dicta may be left
alone without any comments.
Contempt, proceedings will stand dropped.(All three Judges concurred with this view.)

In the matter of Mr. D, an Advocate of the Supreme

Court (In re D)
Citation:AIR 1956 SC 102: (1955) 2 SCR 1006
Quorum:Bijan Kumar Mukherjea, CJ, SudhiRanjan Das, J (who delivered the judgment in this
case), T.L. VenkataramaAyyar
Brief Facts: Mr. D/respondent was an advocate of some standing in the Bombay High Court who
was also enrolled in the Supreme Court. He was convicted of an offence under the Bombay
Prohibition Act by Magistrate Mr.Sonavane which on appeal was upheld by the Bombay
although it altered the quantum of punishment. Shortly after the conviction by Magistrate, the
Magistrate Mr.Sonavane made a report to the Bombay High Court Registrar as to the conduct of
Mr. D who appeared in person as the accused before him. A tribunal (Bar Council Tribunal) was
constituted to enquire into the matter on two counts:
1. report of misconduct
2. judgement of High Court upholding Mr.Ds conviction for offence under the Bombay
prohibition Act
The proceedings before the Tribunal extended for around 1.5 years towards the end of which
period Mr. D sent a letter to the Bar Council tribunal and the High Court requesting the tribunal
to send a report to the high court in terms of his pleading guilty to the charges levelled against
him. Thereupon the tribunal made a report to the high court holding the allegations to be proved
on Mr. Ds own admission and recommended that a very serious notice should be taken of Mr
Ds conduct. On the second count tribunal held that mere conviction of the respondent under
the Prohibition Act did not amount to professional or other misconduct under Section 10 of
the Indian Bar Councils Act.
54

After perusal of the report the High Court heard the respondent for final disposal. Counsel for
Mr. D offered an unconditional and unqualified apology on behalf of Mr. D and pleaded that the
ends of justice would be met if the Court administered only a warning to Mr. D. But the High
Court found the misconduct to be so serious and so grave that it suspended Mr. D from practice
for a period of one year. Mr.Ds application for certificate for fitness to appeal was refused. Mr.
Ds Special Leave Application before SC was also dismissed.
The Supreme Court however had to deal with matter as per Order 4 Rule 30 of the Rules of
Supreme Court under which Rule Mr.D was required to show cause why in the matter
adjudicated by Bombay High Court appropriate action, disciplinary or otherwise should not be
taken by Supreme Court. In answer to the summons under the Rule Mr. D filed a petition, by
way of showing cause, stating that the report of the Magistrate was an exaggerated and
manifestly incorrect version of the incidents that occurred and that Mr.D was compelled to tender
a humiliating apology and requested the Supreme Court to direct that a proper inquiry be held in
the matter by the Supreme Court.
The main contention of Mr D was that the Tribunal had no jurisdiction to enter upon the
inquiry inasmuch as the misconduct complained of was not committed by him in his
capacity as an Advocate for he appeared in person as the accused in the Prohibition case.
Findings of the Supreme Court: The SC pointed out that as his special leave to appeal was
dismissed the SC was not concerned with the proceedings before Bombay HC or the Tribunal.
The respondent then asked for fresh inquiry to be conducted.
The SC found that Mr. D had admitted the truth of everything contained in Mr.Sonavanes report
and that he was not referring to any particular statement to claim that the tribunal was manifestly
incorrect.
The court emphasised that a person holding the responsible position of an Advocate of a High
Court and of SC cannot be permitted to play with the Court in this way. Mr. D had tendered an
unconditional apology evidently in the hope that he would get away with it by merely tendering
an apology. As that tactic did not work he is now asking for inquiry which he had himself
avoided by means of his admission and apology.

55

The SC went through Mr.Sonavanes report and agreed with the finding of the High Court. The
SC found that the conduct of Mr. D in the criminal trial was indefensible by any standard as
it discloses a continuous and persistent attempt by him to be rude and contemptuous of the
Magistrate, to hold up the trial and to do everything in his power to bring the
administration of justice into contempt. Such a conduct merits severe condemnation.
The SC referred to the decision of the Bombay High Court in The Advocate-General of Bombay
v. Three Advocates 1934 wherein it was held that the Indian Legislature by using the words
professional or other misconduct in Section 10 of the Indian Bar Councils Act intended to
confer on the Court disciplinary jurisdiction to take action in all cases of misconduct whether in
professional or other capacity leaving it to the discretion of Court to take action only in suitable
cases. The Court also referred to Calcutta HCs decision in In the matter of an Advocate 1936
and In re a Pleader 1943 to support this interpretation. The SC thereby found Mr. D guilty of
conduct unworthy of any member of legal profession although such conduct was not done
in professional capacity.
Held: The SC also suspended Mr.D from practice for the time fixed by Bombay High Court.
This was in view of the fact that Mr. D being an advocate of the Supreme Court was entitled
under the Supreme Court Advocates (Practice in High Courts) Act to exercise his
profession in all Courts throughout India.(thus, sole judgment of suspension by Bombay HC
would have been of no effect had SC not interfered)Hence any suspension for a period less than
that fixed by Bombay HC would lead to serious anomaly and inconvenience.

In the matter of Summons under Order IV Rule 30

of the Supreme Court Rules 1950 (as amended), 1956
SCR 811 [Quorum: B. Jagannadhadas, T.L. Venkatarama Aiyyar, Bhuvneshwar P. Sinha]
Facts:
The complainant, Attar Singh, engaged Sardar Raghbir Singh, a Senior Advocate of the Supreme
Court, who associated with himself with a Junior Advocate, Madan, and the respondent M, a

56

former Agent of the Supreme Court2 who had become an Advocate on Record under the 1954
Supreme Court Rules to file a criminal appeal. This appeal was filed by them under a
Vakalatnama executed in favour of M. The complainant entrusted a bank draft of Rs. 750 to M
for printing charges in respect of the appeal. This draft was deposited in the Punjab High Court,
which had passed the judgment appealed against. A receipt for the amount was issued in Ms
name, and the printed record was prepared and dispatched to the Supreme Court shortly
thereafter. Subsequently, M applied to the High Court for refund of the unspent balance, and he
received a sum of about Rs. 242.
When the complainant later found out and demanded a refund, M first denied receipt, and
afterwards refused to refund the amount. A complaint was filed against M, which was forwarded
by the Supreme Court Chief Justice to a Chamber Judge.
An elaborate enquiry was held by the Chamber Judge, and charges were framed by him against
M. Subsequently, summons were issued to M to appear before the present Special Bench
constituted under Order IV, Rule 30. M challenged the validity of the summons on the ground
that summons must precede an enquiry under Order IV, Rule 30.3 The enquiry was also objected
to as it was held in Chambers, thus the statements of witnesses were not on oath. The present
Special Bench therefore directed the evidence to be taken afresh and that the procedure,
substantially as in a warrant case, should be adopted as far as possible under Section 251A of the
CrPC. The following 3 charges were framed by the Court (paraphrased):
i.

M, having deposited Rs. 750 towards printing charges and received the receipt,
applied for and obtained the balance of Rs. 242 without his clients authority.

2 I believe an Advocate on Record was formerly known as an Agent. In terms of

Order IV, Rule 12, of the former 1950 Supreme Court Rules that no person shall
appear as Advocate in any case unless he is instructed by an Agent. The concept
appears to be that of an AoR.
3 Rule 30 only provided, the Court shall issue, in the first instance, a summons
returnable before the Court or before a Special Bench to be constituted by the Chief
Justice to show cause against specified matters. No specific procedure had been
provided for.
57

ii.

After obtaining the said sum, M did not return any part to his client, even when called
to do so, even though he is not entitled to recover anything beyond Rs. 72 from his

iii.

client as he had agreed to receive only a sum of Rs. 100 towards his fee.
M retained the said sum without intimating his client or claiming any amount as due
by way of fees or lodging a bill of taxation for over three years.

Parties Contentions:
The complainant claimed that having lost his job, he was impecunious, and he had approached
the Senior Advocate Raghbir Singh through a relative and requested him to conduct the appeal
for a fee of Rs. 600 for himself, a junior advocate and an Agent together. Raghbir Singh agreed,
and was paid the amount at the outset. The complainant was not privy to their arrangements
regarding the fee, thus M was not entitled to any amount from him. [Raghbir Singh corroborated
the complainants version and claimed that the sum was shared by them as Rs. 300 for himself,
Rs. 200 for Madan, and Rs. 100 for M: the respective amounts had then been paid out. Madan,
who had nominated M as the Agent, confirmed their arrangement to pay Rs. 100 only to M.] He
alleged that after enquiring about the balance of the High Court Registrar, he had confronted M,
who had initially denied receipt and then evaded payment of the money.
M claimed he was not aware of the above arrangement, and that only Rs. 50 had been paid to
him by the complainant himself, with the promise of a reasonable fee later on. To disprove the
arrangement, he also purported to produce a copy of a bill for Rs. 320 allegedly sent to him by
Madan, which he passed on to the complainant. [But Madan denied sending the bill and the
complainant denied its receipt.] M also claimed that he had been authorized by the relative of the
complainant to withdraw the balance amount. He claimed to have informed the complainant of
the withdrawal and that his bill of work would come to Rs. 500, and alleged he had a lien over
the withdrawn balance.
Issues:

Charge 1: Whether, for withdrawing the unspent balance from the Punjab High Court, M
had the requisite authority.

58

Charge 2: (i) Whether the Agent M came into this case on a definite arrangement that his
entire fee for the case was to be Rs. 100, and (ii) Whether he was in fact paid the said

sum of Rs. 100 by Sardar Raghbir Singh at the outset.

Charge 3: (i) Whether M intimated Attar Singh about the withdrawal of the unspent
balance of printing charges; (ii) Whether M intimated Attar Singh that any fee remained
due and made any demand in that behalf, and (iii) Whether M was justified in retaining
the amount towards fees without lodging a bill for taxation against his client.

Overall, whether on the above facts M is guilty of professional misconduct.

Held:
Concerning the first charge, the Court did not accept that M had been authorized by the relative
of the complainant to withdraw the unspent balance, as during the Chamber Judges enquiry he
had been unable to specifically point out who had authorized him to do so; he only later claimed
it was the relative. M had also initially alleged in his affidavit that he withdrew the balance with
the permission of the complainant himself, though in cross-examination unsatisfactorily tried to
explain that he had meant to refer to the relative.
As for the second charge, it was held that the version of Madan, who was a witness to the
arrangement, and Raghbir Singh, who was a witness to the payment, did not seem unreliable.
However, since neither sides evidence was decisive, the benefit of doubt was given to M
considering that otherwise M would be open to prosecution for criminal misappropriation.
The third charge was decided against M. He could not produce properly addressed copies of the
alleged letters to the complainant claiming fees due, or satisfactorily explain why he had not
applied to the court for taxation against the complainant.
As regards professional misconduct, it was held that Rule 30 of Order IV of the Supreme Court
Rules virtually made an Advocate a trustee for his client in respect of all his moneys which came
into his hands except what was specifically ear-marked for fees. Any lien would not justify the
appropriation of such money towards his fees without the express or implied consent of the client
or an order of Court. Nor could an Advocate, in absence of a prior settlement of fees, constitute
himself a judge in his own cause and determine what would be reasonable fees payable to him. It
59

might be that in certain circumstances he was entitled to exercise a lien, but he had to give
reasonable intimation both of the fact of moneys having come into his hands and of the exercise
of his lien over them until his account was settled. Surplus money meant for a specific purpose
attracts the principle of trusteeship, there being no legal lien over the same. M was therefore
suspended from practice for a period of 2 years.

JOHN DDOUZA v. EDWARD ANI

(1994) 2 SCC 64
Judges: Ratnavel Pandian and P.B. Sawant, JJ
The case is under s.35 (1) of the Advocates Act.
Facts:
-

The appellant (i.e John DSouza) is an advocate in Karnataka. Mrs. Mary Raymond and
her husband are his clients. The appellant drafted her will, which she entrusted to him
after execution. He made an entry into the Register of Wills which supports the fact that

the will has been entrusted to him. He also gave a receipt to Mrs. Mary.
When Mary Raymonds husband died, she changed her lawyer from the appellant to Mr.
George DaCosta and engaged him as her advocate. George DaCosta asked the appellant
to return his clients will. But the appellant denied having it. So, Mary Raymond made

another will that was prepared by George DaCosta.

The respondent (Mary Raymonds son-in-law a.k.a Edward Ani) sent two letters to the
appellant- one written on behalf of Mary Raymond and another written by him, asking

the appellant about the will. But the appellant did not reply to them.
When Mary Raymond died, the second will was probated. The respondent is the legal

representative of Mary Raymond.

Aggrieved by the appellants behavior, the respondent complained to the State Bar
Council. Then he appealed to the Bar Council of India which held the appellant for
professional misconduct and suspended him from practice for one year.

Issue: Does the appellants action of not returning the Will under his custody, after repeated
demands for the same, result in breach of trust and amount to professional misconduct?
Judgment:
60

The Counsel for the appellant (Jethmalani), contended that the respondent son-in law has
not substantiated that George DaCosta had requested the appellant for the will which he
allegedly denied having. On the other hand, George DaCosta had sent a letter to the State
Bar Council Disciplinary Committee stating that he never requested the will nor had the

appellant denied having it.

The Counsel also contended that the will had been revoked by Mary Raymond when she
was alive and this was supported by an endorsement made by the appellants wife in the
Register of Wills. So even if the will has not been returned, the appellant is not
committing breach of trust as a revoked will has no value (res nullius) and has become a
mere scrap of paper. He does not hence have any hidden agenda of pecuniary interest in

holding the will. It was also admitted that the second letter was received but not the first.
The respondent contended that the will which was in the appellants custody was held by
him in the nature of a trustee and he was obligated to return the will on demand. Further,
neither Mary Raymond nor the respondent son-in law had abandoned the will which was
their property and cannot be res nullius. The appellant must have deemed to have

received the letter.

The State Bar Council held that the actions do not amount to professional misconduct as
there was strained relationships and delay in complaint. BCI and Supreme Court did not
take this into account. George DaCostas letter denying the demand made came into
being only after proceedings began and hence cannot be taken in as valid evidence
against respondent son-in laws claim. The entry in the Register of Wills has been

manipulated.
In a disciplinary proceeding, the charging party has the burden of proving the misconduct
(the respondent). On overall evaluation of the evidence, the appellant has not returned the
will after repeated demands. He initially denied having it and then said he returned it. He
was duty bound to return the will. He is responsible for professional misconduct as he has
blatantly violated lawyer attorney relationship created under law. BCI order of suspension
of one year upheld.

L D Jaisinghani v. Naraindas N Punjabi

(1976) 1 SCC 354
61

Before A. N. Ray, C.J and M H Beg, R S Sarkaria and P N Shinghal, JJ.

\\ Issue: Professional Misconduct- Benefit of Doubt //
Facts:
Complaint about an Advocate not filing a suit on behalf of his client after taking monies for the
same, but going to the length of committing and perpetuating a gross deception on his client by
giving a false and fictitious number of a suit which has not been filed and leading on his client to
believe that a suit has been filed.
The appellant is an Advocate against whom a complaint was made before the Bar Council of
Maharashtra by the Respondent Naraindas M. Punjabi.
As the complaint was not disposed of within six months of its receipt by the State Bar Council it
was transferred to the Disciplinary committee of the Bar Council of India under Section 36B of
the Advocates Act, 1961 for disposal.
The Disciplinary Committee had not only found the appellant guilty but had disbarred him
permanently.
Issue:
Whether the Disciplinary Committee had been unduly swayed by the unsavoury background of
the appellant so that it could not see its way to giving the appellant even the benefit of doubt ?
Held:
After going through the relevant evidence, the court doubt whether both sides have come out
with full and true facts. It is more likely that there was some dispute over the payment of Rs.
350/- which the Advocate appellant claimed as his fee for work done, but, the complainant seems
to have considered himself entitled to demand the payment back.
The enquiries were made in an attempt to holster up a weak case and this could be the result of
an attempt to give a semblance of truth to a coloured and exaggerated version.

62

It is also true that the appellant had been most unwise in not sending a Registered letter in reply
to the registered notice received by him by the complainant.
The court cannot help thinking that the Disciplinary Committee had been unduly swayed by the
unsavoury background of the appellant so that it could not see its way to giving the appellant
even the benefit of doubt in the instant case

Judgment:
In the circumstances of this case, the court held that the appellant is entitled to the benefit of
doubt. Allowed the appeal and set aside the order disbarring the appellant.
Advised -appellant to conduct himself in a more satisfactory manner in his dealings with his
clients.

Lalit Mohan Das v. AG, Orissa(6 Page case)

Citation: AIR1957SC250, 1957()ALT411(SC), 1957(1)AnWR78, [1957]1SCR167
Judges: SudhiRanjan Das, C.J., N.H. Bhagwati, S.K. Das, B.P. Sinha and T.L. Venkatarama
Aiyyar, JJ.
Relevant Act & Section: Legal Practitioners Act, 1879 - Section 14
Brief Facts:
Appellant, L.M.Das is a pleader in the courts at Anandpur, Orissa. The Munsif, Shri.
L.B.N.S.Deo, drew up a proceeding against the appellant on a charge under s. 13 of the Legal
Practitioners Act referring to three incidents as mentioned below.
1) On July 15 1953, before the munsif of Anandpur there were 3 cases pending of which the
munsif took the oldest suit for hearing and postponed the case in which the appellant was
appearing. When informed of this postponement appellant made a remark that, If the
Peshkar is gained over, he can do everything. Munsif asked the appellant to explain his
conduct and appellant denied such a conduct in very improper terms.
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2) Appellant who was appearing on behalf of a defendant applied for time on the ground of
illness of defendant without any medical certificate in support and thus it got rejected.
When on a later date the case was called up for hearing the appellant remarked that the
court is very unfair to him.
3) A preliminary point of jurisdiction and sufficiency of court fees was raised by the court in
a case where the appellant was appearing. This case got decided against the appellant and
a civil revision petition to HC subsequently got rejected. When an order was passed
dismissing the preliminary objection, the appellant stood up and shouted that he
challenges the order and that the court has no principles.
As a reply to show cause notice issued to appellant, he denied all charges and took up the stand
that the munsif is not competent to hold the enquiry as the munsif was in the position of the
complainant. The proceeding against the appellant under the Legal Practitioners Act started, and
munsif sent the record to the District Judge in connection with the plea of the appellant that the
enquiry should be made by some other judicial officer. The District Judge, however, took the
view that the enquiry should be made by the Munsif himself and the records were accordingly
sent back. Thereafter, the appellant non-co-operated and did not appear at the enquiry though
more than one communication was sent to him. The enquiry was concluded and munsif
submitted his report to the HC though District Judge.
At the same time appellant filed an application to the Additional District Judge for time to move
the High Court to get an order to have the matter heard by some other judicial officer. One
month's time was accordingly granted. The Additional District Judge, it appears, made an effort
to settle the trouble, and there was some resolutions passed on this behalf. In January, appellant
appeared in court and filed a written apology and thus order was passed to the effect that the
proceeding against appellant was dropped. However, munsif expressed the view that this
resolution passed did not fully carry out the terms of settlement suggested by the Additional
District judge. Accordingly, the proceeding was re-opened and the record was resubmitted to the
District Judge. The District Judge thereupon sent the report of the Munsif to the High Court
accompanied by his opinion that the pleader should be suspended from practice for one year.
HC held that the pleader was guilty of grave professional misconduct and suspended him from
practice for a period of five years.

64

Appellant then obtained special leave from HC to appeal against the order and judgement of
Orissa HC. The case now stands at SC.
Issues:
a) Whether there was any valid reason for reviving the proceeding against the appellant,
after the dropping of proceedings and submission of apology and expression of regret?
b) Quantum of punishment to be awarded?
Held:
a) The order passed by the learned Munsif on January did not have the effect of terminating
and bringing to an end the proceeding against the appellant. It was asa result of the wellintentioned efforts taken by the Additional District Judge, but at the same stage Munsif
had already made a report to HC and thus HC alone was competent to pass final orders in
the matter.
Even though it is true that the appellant did express his regret and to that extent the
settlement was carried out, it cannot be said to have met with the terms of settlement
suggested by the Additional District Judge. Resolutions passed were so worded as to give
the impression that the misunderstanding between the Munsif and the appellant was all
due to the bench clerk and that there was nothing in the resolution to show that the
appellant was in any way at fault.
Thus it is concluded that the appellant is guilty of grave professional misconduct.
b) Munsif himself had recommended a one year suspension from practice which was
increased to five years by HC. Also appellant did file an apology and expressed his
regret. Considering these two circumstances as mitigating ones, punishment is reduced to
two years of suspension.
Ethics points discussed:
A member of the Bar undoubtedly owes a duty to his client and must place before the Court all
that can fairly and reasonably be submitted on behalf of his client. He may even submit that a
particular order is not correct and may ask for a review of that order. At the same time, a member
of the Bar is an officer of the Court and owes a duty to the Court in which he is appearing. He

65

must uphold the dignity and decorum of the Court and must not do anything to bring the Court
itself into disrepute.
The appellant before us grossly overstepped the limits of propriety when he made imputations
of partiality and unfairness against the Munsif in open Court. In suggesting that the Munsif
followed no principle in his orders, the appellant was adding insult to injury, because the Munsif
had merely upheld an order of his predecessor on the preliminary point of jurisdiction and Court
fees, which order had been upheld by the High Court in revision. Scandalising the Court in such
manner is really polluting the very fount of justice; such conduct as the appellant indulged in was
not a matter between an individual member of the Bar and a member of the judicial service: it
brought into disrepute the whole administration of justice.

Mahabir Prasad Singh vs.Jacks Aviation Pvt. Ltd

In the case of Mahabir Prasad Singh vs. Jacks Aviation Pvt.Ltd , an application was made to the
trial Court to suomoto transfer the case to some other Court as the Bar Association had passed a
resolution to boycott that Court. Thus the lawyers could not appear before that Court. The trial
Court rightly rejected the application. In a revision petition the High Court stayed the
proceedings before the trial Court. It was later held that the High Court had committed grave
error in entertaining the revision petition and passing an Order of stay.
Every court is to bound to proceed with the judicial business during court hours, and the court is
not obliged to adjourn a case because of strike. The court cannot shirk its obligation to hear cases
on the ground that the advocates are on strike. A strike infringes the litigants fundamental right
for speedy trial and the court cannot remain silent on such violation of the fundamental right.
No lawyer has right to obstruct or prevent another lawyer from discharging his professional duty
of appearing in court. If anyone does, then it is a criminal offence and commits contempt of court
and he is liable to be proceeded against on all these courts.

The Bar Council of Maharashtra v M.V. Dabholkar &

Ors (AIR 1976 SC 242)
A.C. Gupta, R.S. Sarkaria, S. Murtaza Fazal Ali and V.R. Krishna Iyer, JJ.
66

\\ Issue: Professional Misconduct- Brief Snatching from Clients //

Facts:
Advocates in criminal courts of Bombay used to lie in wait and accost potential litigants. Bar
Council of Maharashtra heard complaints against 16 advocates and referred same to disciplinary
committee. Common judgment was passed by the committee that this amounted to conduct that
lowers the reputation of the Bar and the advocates were suspended for 3 years. Appeal to
National Disciplinary Committee reversed the order. Maharashtra Bar appealed to SC.
Issue:
Whether the act of snatching briefs amounted to misconduct under Rule 36 of the BCI Rules?
Held:
Rule 36 of BCI Rules states that an advocate shall not solicit work. To attract the section, 3
conditions are to be proved

Soliciting work,
From a particular person and
With respect to a case.

In the present case, insufficient evidence led to no action under Rule 36. Witnesses were not sure
if they actually saw brief snatching. The court indicated that misconduct is not restricted to
technical interpretations of Rules of conduct and went on to show that brief snatching amounted
to misconduct in a broad sense of the term though it did not fall within Rule 36.
It has been universally understood that wherever there is an organized bar assisting in
administering justice, that an attorney, solicitor, barrister or advocate will be suspended or
disbarred for soliciting legal business (Similar provision in Canon 27 of ABA Rules). The
'snatching' species of solicitation are more revolting than 'ambulance chasing', advertising and
the like.
The high moral tone and the considerable public service the bar is associated with has earned for
it a monopoly to practice law and an autonomy to regulate own procedure. This heavy public

67

trust should not be forfeited by legalizing or licensing fights. Rule 36 is not the only nidus of
professional ethics.4
The appellate disciplinary tribunal was wholly wrong in applying Rule 36 which was
promulgated only in 1965 while the alleged misconduct took place earlier. Professional ethics
were born with the organized bar, even as moral norms arose with civilized society. Snatching
briefs by standing at the door of the court house and in-fighting for this purpose is too
dishonorable, disgraceful and unbecoming to be approved even for other professions. The canons
of ethics and propriety for the legal profession totally taboo conduct by way of soliciting,
advertising, scrambling and other obnoxious practices, subtle or clumsy, for betterment of legal
business.
The Court also observed that the State tribunal erred in procedure. The consolidation of 16 cases
and trying them all jointly although the charges were different episodes, were obviously violative
of fair trial. The Court expressed hope that disciplinary proceedings would get more attention
from the Bar Council.
Judgment:
Appeal heard on a case by case basis. Based on evidence and admissions of guilt, exonerated
some advocates and reduced the punishment for the rest. The Court gave the judgment, hoping
that that standards and sanctions befitting the national Bar will be maintained in such dignified
and deterrent a manner that public confidence in this arm of the justice-system is neither shaken
nor shocked.

Mrs. Roma Banerjee vsUshapati Banerjee, Muktear,

on 29 January, 1954

2 judge bench
Mukhtear Ushapati Banerjee, an advocate was hired by Roma Banerjee for prosecution
against two people for cheating. The case ended in conviction of the accused, at which

4 Nidus = A place or environment that favors the development of a thing

68

point they preferred an appeal to the Sessions judge. At this point the advocate informed
his client that a senior advocate would have to be appointed and induced her to pay Rs 75

as the fee for the same.

When the client didnt hear anything for a long time, she made enquires and found out
that the advocate had compromised the criminal appeal for a sum of Rs 1500. This sum
had been paid to the advocate over the course of three dates and on the last of these dates,

the appeal was dismissed on account of the compromise.

The compromise amount had not been handed over to the client and hence the client
caused a pleaders notice to be served to the advocate. However the advocate still
provided no restitution or explanation. The client then moved to the district judge for

appropriate action who forwarded this application to the additional sessions judge.
The respondent was then furnished with a copy of the application under the Legal
Practitioners Act and was asked to show cause why he should not be dealt with under that
Act. By a petition, the respondent showed cause in which it was, inter alia, stated that the
allegation as to the payment of Rs. 75/- as fee for engaging a senior lawyer was a myth,
that the allegation of compounding the case without the knowledge of the petitioner and
of misappropriating the amount of Rs. 1,500/- paid by the accused was totally false, and
that the case sought to be made out against the respondent would be negatived by
overwhelming evidence not only of very respectable witnesses but also of a documentary
nature. On the respondent's application for time, the hearing of the petition under the
Legal Practitioners Act was fixed for May 23, 1953. The respondent, however, chose not
to appear on that occasion. Mrs. Banerjee, the complainant, and three persons, including
Mr. Ramesh Chandra Rai, pleader, who had appeared for the accused persons in the said
criminal appeal, were examined. Certain records or documents were proved and tendered
as evidence. On three subsequent dates, namely, May 30, 1953, June 6, 1953, and June
13, 1953, the respondent asked for time to effect a compromise with Mrs. Banerjee as to
the charge of misconduct. The Judge allowed time on two occasions, but disallowed the
respondent's petition of 13th of June, The matter was finally fixed for 15th June for
arguments. On 18th June, the reference was made to this Court recommending that the
respondent be suitably punished under Section 13 of the Legal Practitioners Act.

69

The charge of misconduct was on three counts : (a) The respondent induced his client to
pay Rs. 75/- to engage a senior lawyer. No such lawyer Was engaged and the money was
retained by the respondent (b) The criminal appeal was compromised without the
knowledge, and consequently without the consent, of the respondent's client and (c) The
sum of Rs. 1,500/- being the consideration for the compromise, was retained by the
respondent.

The respondent claimed that he had offered the compromise amount to the client who in

turn had refused to accept it with a view to blackmail the respondent.

It was proven that in the initial case, the lawyer of the accused had asked the respondent
lawyer to bring his client along for the compromise, but the respondent lawyer had failed

to do so.
It was pointed out that after asking for time twice, the advocate had failed to appear in
court and so the petition for more time was disallowed the third time and hence it could

not be said that the advocate did not get a fair chance to be heard and examined.
The next point urged on behalf of the respondent was that the reference was incompetent
because it had not been made through the District Judge, as required under Section 14 of
the Legal Practitioners Act. Although this is a very technical point, we have given this
matter our serious consideration and have come to the conclusion that the contention put
forward by Mr. Basu is without substance. Mr. Basu's point is that the last paragraph of
Section 14 requires that every report made to the High Court should be through one of the
appropriate functionaries mentioned in Clauses (a) to (d) and that each such report shall
be accompanied by the opinion of each Judge, Magistrate or Revenue authority as the
case may be, through whom or which it is required to be made. In this case, according to
Mr. Basu, the reference concerned was not made through the District Judge and
consequently it was not accompanied by his opinion. Mr. Das, learned Government
Pleader, appearing on behalf of the State, argued that as the Additional Sessions Judge
had, except in administrative matters, concurrent jurisdiction with the Sessions Judge, the
reference concerned must be deemed to be a reference by the Sessions Judge. This,
according to Mr. Das, is clear by reason of the provisions of Section 8 (2) of Bengal, Agra
and Assam Civil Courts Act, 1887. In our view, the requirement that every report made to
the High Court under the section shall be made through one or other of the functionaries
70

mentioned in Clauses (a) to (d) applies in those cases only which are specified in those
clauses. In our view, there is ample power under the first part of the section for an
Additional Sessions Judge, to whom a matter under the Legal Practitioners Act has been
transferred for disposal, to make a report direct to the High Court without any further

intervention on the part of either the District Judge or the Sessions Judge.
The last point raised was that the case of misconduct should have been decided in a
criminal court and this was refused on the grounds that not every misconduct would fall

under the mischief of the penal code.

HELD- Advocate suspended for 6 months.

N.B Mirzan vs. The Disciplinary Council of Bar

Council of Maharashtra & Ors
Citation: AIR 1972 SC 46, Bench: S Sikri, D Palekar, A Ray
Relevant provisions: Advocates Act, S. 35 (Professional misconduct), S. 39 (Appeal to SC).
Facts: The appellant, N.B Mirzan (Advocate) was an Advocate on the rolls of Bar Council of
Maharashtra. Respondent No. 2 (Respondent) was a previous client of the appellant in the
case of an obstructionist notice served to him. The Advocate collected money from Respondent
on various occasions Rs. 190 for court fee stamps, then Rs. 975 on representation that the
amount was required for deposit by way of rent and then again Rs. 250 on representation that the
amount was necessary for payment to a judge for getting the rent bill transferred in the name of
Respondent. The obstructionist notice was discharged in favour of the Respondent. Thereafter
the landlord filed another suit against Respondent and his brother for ejectment and mesne
profits. He gave a written statement admitting that no rent had been paid by Respondent. The
Court directed to deposit such sum. Since some money was already deposited to the Advocate,
the Respondent was under the impression that the Advocate will make the payment. He was
surprised when the Advocate made a demand for the rent again. This started the current state of
events. The Respondent understood that the appellant misappropriated the money and made a
compliant in the State Bar Council against the Advocate. Later, there was an attempt for a
settlement between them with a condition that the Advocate will pay the Respondent Rs. 1000 in
instalments of Rs 150 every month. The Advocate did pay the first instalment but later denied the
existence of any such settlement when the Disciplinary Proceedings started.
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Issue: The respondent made several allegations of professional misconduct.

The State Bar Council Disciplinary Committee, after detailed inquiry came in to conclusion that
professional misconduct had been established on three counts including moral turpitude. The
committee directed the appellant should be suspended permanently and should not be allowed to
appear in any court in the country.
An appeal was filed on this order to the Bar Council of India. The appeal was heard by the
Disciplinary committee of BCI. The BCI Disciplinary Committee confirmed the findings of the
State DC, but reduced the punishment for a period of 5 years suspension and to pay the
Respondent, a sum of Rs. 850 in 2 months. Further, if the amount was not paid, the punishment
of the State DC will stand.
An appeal to the SC was made.
Held: SC approved the findings of both the Disciplinary Committees. The findings of the Bar
Council of India Disciplinary Committee upheld.

New India Assurance Co. Ltd vs. A.K. Saxena

Bench: S.N. VARIAVA & DR. AR. LAKSHMANAN
Facts
Respondent was an advocate on panel of the appellants. As such a number of matters used to be
assigned to him It appears that some dispute arose between the appellants and the respondent as a
result of which the respondent was asked to return all papers. The respondent was willing to
return the papers provided that all his fees were paid.
When appeal was on the Board of the High Court, the respondent moved an application before
the High Court saying that he has been asked to return the files and therefore he may be
discharged on payment of his full fees.
Held

72

The application of Sri A.K. Saxena is allowed and he is granted leave for being discharged as
counsel for the appellant. However, the appellant New India Assurance Co. Ltd. shall pay his full
fees. On payment of full fees, he will immediately return the files as required by the appellant
company. It has been held that the right of the litigant to have the files returned to him is a
corresponding counterpart of the professional duty of the advocate and that dispute regarding
fees would be a lis to be decided in an appropriate proceeding in Court.

P. D. GUPTA v. RAM MURTY

TOPIC: PROFESSIONAL MISCONDUCT
CASE CITATION: (1997) 7 SCC 147
JUDGES: S.C. AGRAWAL AND D.P. WADHWA
No. of pages: 5
The appellant is an advocate practicing in Delhi. He has filed this appeal before the Supreme
Court of India, under section 38 of the Advocates Act, 1961 against the order of the Disciplinary
Committee of the Bar Council of India holding him guilty of misconduct and suspending him
from practice for a period of one year. This order by the Bar Council of India was passed as the
Disciplinary Committee of the Bar Council of Delhi could not dispose of the complaint received
by it within a period of one year and proceedings has thus been transferred to the Bar Council of
India under Section 36-B of the Act. (Section 36-B enjoins upon the Disciplinary Committee of
the State Bar Council to dispose of the complaint received by it under Section 35 of the Act
expeditiously and in any case to conclude the proceedings within one year from the date of the
receipt of a complaint or the date of initiation of the proceedings if at the instance of the State
Bar Council.)
So the case goes like this, One Srikishan Das died leaving behind extensive immovable
properties. Claims to the said properties were made by one Vidyawati claiming to be the sister of
the deceased, Mr. Ram Murti and two others who claimed themselves to be the heir of the

73

deceased. Later, the said properties were purchased by the advocate of Vidyawati knowing them
to be disputed. The advocate thereafter sold the property to a third party and made profit.
The Bar council of India was of the view that the conduct of P.D. Gupta in the circumstances was
unbecoming of professional ethics and conduct. It observed that the lawyer conducting the case
of his client has a commanding status and can exert influence on his client. No doubt there is no
bar for a lawyer to purchase property but on account of common prudence specially a law
knowing person will never prefer to purchase the property, the title of which is under doubt. For
the purpose of the present complaint, having regard to all the facts and circumstances of the case,
the Committee was of the opinion that the conduct of the respondent is patently unbecoming of a
lawyer and against professional ethics. Therefore the Committee said that Mr. Gupta should be
suspended from practice for a period on one year so that the other erring lawyers should learn a
lesson and refrain themselves from indulging in such practice.
The question which arises for consideration: In view of the aforementioned facts is P.D. Gupta
guilty of professional or other misconduct and if so is the punishment awarded to him
disproportionate to the professional or other misconduct of which he has been found guilty?
Supreme Court upheld the Disciplinary committees (BCI) decision.
Supreme Courts observation
The appellant- advocates contention that he was no longer concerned with the property as he
had sol away the same and therefore he was not guilty of any misconduct, cannot be sustained
since that is not the issue here. Court is concerned with the professional conduct of the appellant
as a lawyer conducting the case of his client. Here the appellant in buying the property has in
effect subverted the process of justice. His action has raised serious questions about his fairness
in the conduct of the trial touching his professional conduct as an advocate. By his action he has
brought the process of administration of justice into disrepute.
In the present case the Bar Council of India, through its Disciplinary Committee, has considered
all the relevant circumstances and has come to the conclusion that the appellant was guilty of
misconduct and there is no reason to take a different view. There is no ground to interfere with

74

the punishment of debarring him from practicing for a period of one year awarded to the
appellant in the circumstances of the case.

Perspective Publications (P) Ltd. and Anr.v.State of

Maharashtra
Citation: AIR1970SC221
Quorum: J.C. Shah, V. Ramaswami and A.N. Grover, JJ.
Pages: 10
Decision: Appeal Dismissed. Decision of High Court was upheld.
Facts:
The appellants in this case had published an article in a weekly periodical called Mainstream
titled STORY OF A LOAN and Blitz Thackersey Libel Case which was about the decision of
the Libel Suit filed against the weekly newspaper Blitz and its Editor, by one Krishnaraj
Thackersey. The suit was decided by Justice Tarkunde in favour of Thackersey and the sum of
Rs. 3 Lacks was decreed.
The impugned article, in this case, was a skilful attempt on the part of the writer to impute
dishonesty and lack of integrity to Justice Tarkunde in the matter of Blitz-Thackersey suit. The
writer says that the Khare-Tarkunde Private Limited of Nagpur, the partners of which included
the father and two brothers of Justice Tarkunde, had received a loan of Rs. 10 Lacks from the
Bank of India.It was pointed out, in the article, that the date on which Rs. 10 lacks loan facility
was granted by the Bank of India was about five and a half months after the Thackersey-Blitz
libel suit had begun and just over six weeks before Justice Tarkunde began delivering his
"marathon judgment" on January 19, 1965.
It was then said that for Rs. 10 lacks loan facility granted to Khare-Tarkunde, the New India
Assurance Co. stood guarantee and that the two Directors of the Bank of India who voted in
favour of the credit of Rs. 10 lacks being granted to Khare-Tarkunde were Thackersey and
JaisinhVithaldas (believed to be a relative of Thackersey). Next the writer had stated that one of
75

the Directors of the New India Assurance that stood guarantee for the loan was N. K. Petigara,
who was the Solicitor of Thackersey in the Blitz Thackersey Libel Case before Justice
Tarkunde.The writer laid emphasis on the fact that Khare-Tarkunde had a capital of Rs. 5 lacks
only and the balance sheet of the firm of June 1964 revealed indebtedness to various financiers to
the tune of Rs. 14 lacks. Thus Khare-Tarkunde is stated to be "lucky to get against all this a
handsome loan of Rs. 10 lacks from the Bank of India"
A petition was filed before the Bombay High Court by the State of Maharashtra pointing out that
the aforesaid article contained scandalous allegations and was calculated to obstruct the
administration of justice and constituted gross contempt of court. The article purported to state
certain facts relating to the transaction between Khare-Tarkunde and the Bank which were false
and there were several misstatements and suppression of facts.
ISSUE: Whether the appellant editor had committed contempt of court through misstatements
and inaccurate scandalous allegations, calculated to obstruct administration of justice and
wrongly implicate the Judge.
The article, though cleverly worded, contains obvious implications and insinuations which create
a strong prejudicial impact on the mind of the reader about the lack of integrity, honesty and
impartiality on the part of Justice Tarkunde in deciding the suit.
This case is an appeal from the judgement of the Bombay High Court in which the
appellants(Appellant 1and 2 being Perspective Publications (P) Ltd and D.R. Goel, the Editor,
Printer and Publisher of Perspective Publications, respectively) were held to be guilty of
contempt of Mr. Justice Tarkunde in his judicial capacity.
The High Court analyzed the implications of the facts stated in each paragraph of the impugned
article in great detail and observed that reading the article as a whole, not reading into it anything
more than its plain language, it is impossible to avoid the conclusions that this article exceeds the
bounds of fair and reasonable criticism. In so far as it suggests that there is sort of casual
connection between the granting of the loan to M/s. Khare Thackersey Pvt. Ltd and the judgment
of Mr. Justice Tarkunde in the Blitz-Thackersey case, it clearly attempts to lower the learned
judge in his judicial capacity, shake the confidence of the public in the High Court and impair the
due administration of justice in the court.

76

The Honble Apex Court restated the result of the discussions of many cases which were referred
to before the court on the head of contempt:
(1) It will not be right to say that committals for contempt for scandalizing the court have
become obsolete.
(2) The summary jurisdiction by way of contempt must be exercised with great care and caution
and only when its exercise is necessary for the proper administration of law and justice.
(3) It is open to anyone to express fair, reasonable and legitimate criticism of any act or conduct
of a judge in his judicial capacity or even to make a proper and fair comment on any decision
given by him because "justice is not a cloistered virtue and she must be allowed to suffer the
scrutiny and respectful, even though outspoken, comments of ordinary men".
(4) A distinction must be made between a mere libel or defamation of a judge and what amounts
to a contempt of the court.
The court observed that no attempt was made to substantiate the facts stated in the article to be
true or founded on correct data. The contention of bias or existence of some sort of pecuniary
interest in Khare-Tarkunde was held to be baseless as there was nothing to show that Justice
Tarkunde was neither a shareholder nor did he have any interest in Khare-Tarkunde. The fact that
his brother had some holding in it per se does not establish that Justice Tarkunde would also have
some pecuniary interest therein.
The appellant showed no contrition in the matter of publication of the impugned article. He never
even tendered an unqualified apology.
HELD:
The Supreme Court ,held that, as in the impugned article there was a clear imputation of
impropriety, lack of integrity and oblique motives to Justice Tarkunde in the matter of deciding
the Thackersey-Blitz suit which, on the principles already stated, undoubtedly constituted
contempt of court, the decision of the High Court, was fully justified in punishing him for
contempt of court and in awarding the sentence of simple imprisonment for one month together
with fine amounting to Rs. 1,000/-, in default of payment of fine he was to undergo further
simple imprisonment for the same period.

77

Pralhad Saran Gupta v. Bar Council of India

Citation: (1997) 3 SCC 585
Quorum: S.C. Agrawal and G.B. Pattanaik, JJ
Relevant Law: Advocates Act, 1961 - Section 36B, Section 38; Code of Civil Procedure Section 80, Order 21 Rule 72
Pages: 09
Facts:
Prahlad Saran Gupta (Appellant) was a practising Advocate in Ghaziabad and was enrolled
with the Bar Council of UP. He was appearing for the decree holder, M/s. Atma Ram Nanak
Chand, in an Execution Case. The U.P. State Bar Council received a complaint from one,
Rajendra Prasad (complainant), a partner at M/s. Atma Ram.
The allegations made were as follows:
1. The Appellant colluded with the judgment debtor and had realised Rs. 1,600 from him
out of which Rs. 1,500 was withheld by the Appellant for a period of eight months
inspite of repeated requests by the decree holder. The balance amount was taken by
him as fee to get time from the High Court for procuring stay order in the execution
proceedings.
2. The Appellant received Rs. 245 from the judgment debtor for getting some other
counsel engaged to get the execution proceedings stayed and to see that the auction of
judgment debtor's property was not approved by the court.
3. The Appellant had collected from the judgment debtor a further sum of Rs. 450 on
account of fees and expenses for getting some counsel engaged at Allahabad to get the
execution proceeding stayed and for the purpose. However, he had not referred the
case to the advocate he had claimed to refer the case to.
4. The Appellant, as counsel for the complainant's firm, had filed the suit in the Court of
Munsif (Judge, Small Causes Court, Ghaziabad) with utter carelessness thus their new

78

counsel had to take back the plaint and file it in the proper court, namely, the Court of
Civil Judge, (Judge, Small Causes Court), Ghaziabad.
5. The Appellant was indulging in money lending business at very high rate of interest
and thus misconducting himself as an advocate and had advanced loan to one Sunderlal
of Ghaziabad.
The State Bar Council on receiving the complaint referred the same to the Displinary
Committee. The Committee did not complete the proceedings in the prescribed time (i.e. 1
year) and the matter was transferred to the Bar Council of India u/s. 36-B of the Advocates
Act1961. The Disciplinary Committee of Bar Council of India holding the Appellant guilty of
serious professional misconduct, imposing punishment of suspension from practice for one
year.
The Appellant thus filed an appeal before the Supreme Court under section 38 of the
Advocates Act.
Decision:
The action of the appellant in not returning the money i.e.Rs.1,500 either to the decree-holder
or to the judgment debtor, and retaining of the amount with himself till it was deposited in the
court, was not in consonance with moral standard of a senior member of the legal profession.
The court held that the appellant had rightly been held guilty of professional misconduct for
having retained Rs. 1,500 with him in connection with the execution proceedings. The court
stated that the ends of justice would be met if the punishment for reprimand is imposed on the
appellant for misconduct on his part.

Pravin C. Shah v. K.A.Mohd.Ali and Another, (2001)

8 SCC 650 (14 pages)

79

Coram : 2 judges K.T. Thomas and S.N. Variava

Facts:
The Respondent in this case (An advocate) was practising mostly in the courts situated in
Ernakulum district. He was hauled up for contempt of court on 2 successive occasions. The High
court of Kerala however found him guilty of criminal contempt in both cases and convicted him
under s. 12 of the contempt of courts Act, 1971 and sentenced him in with fine- Rs. 10,000 (1 st
occasion) & Rs. 2000 (2nd Occasion). At this juncture he went on for an appeal to the Supreme
Court challenging the conviction and sentence imposed upon him by the High Court, but he did
not succeed in the Supreme Court except getting the fine of Rs. 2000 in one case deleted and the
apology tendered by him in the court was not accepted by the court. But however this did not
create any ripple in him and as a result, he continued to appear and conduct cases in the courts.
At this point the Appellants in this case (Lalan Road Residents Association, Kochi) brought a
notice to the Bar Council of Kerala that this Advocate was continuing practise and conducted
cases in courts in cochin in spite of his conviction and sentence.
The Bar council of Kerala thereupon initiated disciplinary proceedings against the respondent
and finally imposed a punishment on him debarring him from Acting or pleading in any court
till he gets himself purged of the contempt of court by an order of the appropriate court. The
interdict was passed by the council by taking into account Rule 11 of the Rules Framed by the
High Court of Kerala under s. 34 (1) of the Advocates Act 1961 regarding conditions of practise
of Advocates
Rule 11 : No advocate who has been found guilty of contempt of court shall be permitted to
appear, act or plead in any court unless he has purged himself of contempt.
Challenging this order of the State bar council, the respondent filed an appeal before the BCI
and the BCI set aside the interdict imposed upon him. Against this order is the present appeal
before the Supreme Court by the same person at whose instance the State bar council initiated
action against the respondent Advocate.
Other Important matters discussed:

80

Interpretation of Rule 11:

Rule 11 is a self operating rule for which only one stipulation needs to be satisfied i.e. the
advocate concerned should have been found guilty of contempt of court. And it will come to an
end once the Advocate purges himself of the contempt.
Rule 11 of the Rules is not a provision intended for the disciplinary committee of the Bar
Council of the state or the Bar council of India. It is a matter entirely concerning the dignity and
the orderly functioning of the courts. The Rights of the advocate to practise envelops a lot of acts
to be performed by him in discharge of his professional duties. Rule 11 has nothing to do with
all the acts done by the advocate during his practise except his performance inside the court. The
right to appear and conduct cases in the court is a matter on which the court has major
supervisory power.
In the case of Prayag Das v. Civil Judge, Bulandshahr AIR 1974 All 133, it was said that:
the High Courts have the power to regulate the appearance of advocates in courts.
Rule 11 of the Rules is a self-operating provision. When the advocate is found guilty of contempt
of court, his authority to act or plead in any court stand snapped and if he does such things
without the express permission of the court he would again be guilty of contempt of court. It will
continue to be so, until he purges himself of the contempt.
How to Purge?
To purge means to get oneself cleared of the guilt.
According to Disciplinary committee of BCI, it can be done by apologising to the court.
(Criminal cases) and
in civil cases by subsequent compliance with the orders or directions the contempt can be
purged of.
In the case of Madan Gopal Gupta v. Agra University, it was held that Purging process would
be complete only when the contemplator undergoes the penalty.

81

A mere statement made by the contemnor before the court that he apologises is hardly enough to
amount to purging himself of teh contempt. The court should also be satisfied of teh genuiness of
the apology. If the court is satisfied, it has to pass an order stating that it is satisfied and hence the
contemnor has purged himself of the contempt. Till such an order is passed by the court, the
advocate shall be under the spell of the interdict under Rule 11 of the rules.
Decision: The respondent still have the option to purge himself in the ways mentioned above to
the court. But until then the advocate cannot plead or act in any court situated within the domain
of the Kerala High Court. And it shall be the duty of the Registrar of the High Courts to inform
all other courts coming within its purview against any such advocate who has been convicted by
the courts.
And appeal is disposed.

R.D. Saxena v. Balram Prasad Sharma 5- Justice

K.T. Thomas

and Justice R.P. Sethi

Facts: The appellant, a septuagenarian was enrolled as an advocate with the State Bar Council of
Madhya Pradesh. He was appointed as legal advisor to the Madhya Pradesh State Co-operative
Bank Ltd. ('Bank', for short) in 1990 and the Bank continued to retain him in that capacity during
the succeeding years. He was also engaged by the said Bank to conduct cases in which the Bank
was a party. On 17.7.1993 the Bank terminated the retainership of the Appellant and requested
him to return all the case files relating to the Bank. Instead of returning the files the Appellant
forwarded a consolidated bill to the Bank showing an amount of Rs. 97,100/- as the balance
payable by the Bank towards the legal remuneration to which he is entitled. He informed the
Bank that the files would be returned only after settling his dues.
Respondent Bank disclaimed any liability outstanding from them to the Appellant. The dispute
remained unresolved and the case bundles never passed from Appellant's hands. As the cases
were pending the Bank was anxious to have the files for continuing the proceedings before the
Courts/Tribunals concerned. At the same time the Bank was not disposed to capitulate to the
52000 (41) ALR 1
82

terms dictated by the Appellant which they regarded as grossly unreasonable. A complaint was
hence filed by the Managing Director of the Bank, before the State Bar Council (Madhya
Pradesh) on 3.2.1994. It was alleged in the complaint that Appellant is guilty of professional
misconduct by not returning the files to his client. It was alleged in the complaint that appellant
is guilty of professional misconduct by not returning the files to his client.In the reply which the
appellant submitted before the Bar Council he admitted that the files were not returned but
claimed that he has a right to retain such files by exercising his right of lien and offered to return
the files as soon as payment is made to him.
The complaint was then forwarded to the Disciplinary Committee of the District Bar Council.
The State Bar Council failed to dispose of the complaint even after the expiry of one year. So
underSection 36-B of the Advocates Act the proceedings stood transferred to the Bar Council of
India. After holding inquiry the Disciplinary Committee of the Bar Council of India reached the
conclusion that appellant is guilty of professional misconduct.
Issue: The issue is this: Does the advocate have a lien for his fees on the litigation papers
entrusted to him by his client? In this case the Bar Council of India, without deciding the above
crucial issue, has chosen to impose punishment on a delinquent advocate debarring him from
practicing for a period of 18 months and a fine of Rs. 1000/-. The advocate concerned was
further directed to return all the case bundles which he got from his client - Respondent - without
any delay. This appeal is filed by the said advocate under Section 38 of the Advocates Act, 1961.
Judgement: Justice Thomas in his judgment noted the position before independence, when there
was a divergence of opinion on this position. However, with the enactment of the Advocates Act
and the formation of the new Bar Council of India, rules were made to cover such situations. It
contains provisions specifically prohibiting an advocate from adjusting the fees payable to him
by a client against his own personal liability to the client. As a rule an Advocate shall not do
anything whereby he abuses or takes advantage of the confidence reposed in him by his client
(vide Rule 24)
Rules 28 and 29 of the BCI Rules can be referred to in this context, which provides for a right of
an advocate to deduct the fees out of any money of the client remaining in his hand at the
termination of the proceeding for which the advocate was engaged. It is important to notice that
83

no lien is provided on the litigation files kept with him. In the conditions prevailing in India with
lots of illiterate people among the litigant public it may not be advisable also to permit the
Counsel to retain the case bundle for the fees claimed by him. Any such lien if permitted would
become susceptible to great abuses and exploitation.
The court dismissed the claim made by the appellant that the case files fall under goods as
contemplated under S.171 of the Contract Act. Goods to fall within the purview of Section
171 of the Contract Act should have marketability and the person to whom it is bailed should be
in a position to dispose it of in consideration of money. In other words the goods referred to
in Section 171 of the Contract Act are saleable goods. There is no scope for converting the case
files into money, nor can they be sold to any third party. Hence, the reliance placed on Section
171 of the Contract Act has no merit.
The court held that misconduct as envisaged in Section 35 of the Advocates Act is not defined.
The section uses the expression "misconduct, professional or otherwise". The word "misconduct"
is a relative term. It has to be considered with reference to the subject matter and the context
wherein such term occurs. It literally means wrong conduct or improper conduct. Citing Darling
Js exposition in In Re Solicitor Ex-Parte a Law Society the apex court felt it was also inclined to
take the same wide canvass for understanding the import of the expression "misconduct" in the
context in which it is referred to in Section 35 of the Advocates Act. Therefore, the refusal to
return the files to the client when he demanded the same amounted to misconduct under Section
35 of the Act.
Nobody would dispute the proposition that the cause in a court/tribunal is far more important for
all concerned than the right of the legal practitioner for his remuneration in respect of the
services rendered for espousing the cause on behalf of the litigant. If a need arises for the litigant
to change his counsel pendentelite, that which is more important should have its even course
flowed unimpeded. Retention of records for the unpaid remuneration of the advocate would
impede such course and the cause pending judicial disposal would be badly impaired. Even if
there is no lien on the litigation papers of his client an advocate is not without remedies to realise
the fee which he is legitimately entitled, like suing the client for what is legitimately due to him.

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The court converted the punishment pronounced by the BCI into a reprimand since the appellant
would have bona fide believed, in the light of decisions of certain High Courts, that he did have a
lien.

RajendraNagrath v. Col VNVohra and Ors

AIR 2009 MP 131
Key question: Whether an Advocate can continue as a counsel in spite of having been cited as a
witness
Facts of the case:
AS Usmani an advocate was engaged by the petitioner as counsel in a property dispute before
XIIIth Addl District Judge Jabalpur. The declarations sought by the plaintiff were based on a
will which was executed by Smt Vidyavathi Nagrath in favour of the petitioner. The will in
question was reduced into writing by Shri AS Usmani and he was cited as a witness by the
plaintiffs. The defendants in the suit filed objections seeking an order to direct Shri A S Usmani
to not appear as a counsel as he was also stated as a witness and had knowledge about material
facts related to the case. The trial court ordered in favour of the defendants.
Aggrieved by this order, the Petitioners filed a writ petition before the Madhya Pradesh High
Court
Held: The High Court observed that the will in question was a material fact. Since the will was
reduced into writing by AS Usmani, he may be aware of several facts. Consequently he may be
aware of several facts and thus he should not continue as a counsel in the case.
The High Court observed that higher standards of professional ethics are expected of a lawyer
and what may be proper for others may not be proper for a lawyer. In the light of Rule 13 of
Chapter II, Part VI of Bar Council of India Rules, an advocate cannot identify himself with the
client and it was not proper for Mr AS Usmani to continue with the case.

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The High Court also relied on Motilal v. Anandibai in which the Supreme Court held that it is not
proper for a lawyer to appear for a party knowing that it is not proper for a lawyer to appear for a
party in Court knowing that he was likely to be called as a witness in support of a will bearing
his attestation
A.S Usmani was directed to voluntarily retire from the case failing which the Trial Court was
directed not to permit him to continue as a counsel
Relevant legal provision
Part VI Chapter II , Rule 13 : Duties to client
An advocate should not accept a brief or appear in a case in which he has reason to believe that
he will be a witness, and if being engaged in a case, it becomes apparent that he is a witness on a
material question of fact, he should not continue to appear as an Advocate if he can retire without
jeopardising his clients interests.

RAJENDRA V. PAI V. ALEX FERNANDES AND OTHERS

Bench : R.C.Lahoti and Venkataram Reddi ; JJ.
FACTS:
Appellant was an advocate of Bar Council of Maharashtra and Goa. Large scale acquisition of
lands lands of 150 villagers involved. The appellant being an advocate and also personally
interested in defending the land belonging to relatives, played an important role in the land
acquisition proceeding and also obtaining a feasible quantum of compensation.
3 claimants filed complaints against the appellant on the grounds that:

appellant solicited work from villagers

he settled contingent fee on the basis of compensation awarded to claimant
he identified certified certain claimants in opening bank account where cheque for
awarded compensation was lodged and amount withdrawn ( This identification was
later found to be false)
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Matter inquired by disciplinary Committee of State Bar Council

Contentions of the appellant:

He did not solicit work. Villagers confided in him as he was an advocate and also he was

looking after litigation of the family property.

Villagers voluntarily agreed to contribute to collective fund raised for covering the

expenses of litigation.
With regard to false identification of bank account he acted irresponsibly as he relied on

villagers who persuaded him to make such identification

If he is debarred appellant and his family will be ruined.

SUPREME COURT HELD:

Debarring a person is an extreme punishment. High standards of ethics and morality to be
maintained and thus situations of misconduct to be dealt with severely. However, in the present
case, advocate seems not to have defaulted or committed misconduct. Thus the punishment
seems to be disproportionate. Appellant should not have indulged in a prosecution in which he
has personal interest. The fact that in a group litigation which involved 150 members, only 3
have found cause for grievance is a factor of relevance. Thus in totality of facts, decide that
appellant should be suspended for a period of 7 years. This will also act as an example to others
to prevent recurrence of such incidents.

C. Ravichandran Iyer vs Justice A.M. Bhattacharjee

& Ors

Bench: Ramaswamy, K

Equivalent citations: 1995 SCC (5) 457

FACTS:
The petitioner, a practising advocate, has initiated the public interest litigation under Article 32 of
the Constitution seeking to issue an appropriate writ, order or direction restraining permanently
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the Bar Council of Maharashtra and Goa [BCMG], Bombay Bar Association [BBA] and the
Advocates'

Association

of

Western

India

[AAWI],

respectively,

coercing

Justice

A.M.Bhattacharjee. Chief Justice of Bombay High Court, to resign from the office as Judge.
He also sought an investigation by the Central Bureau of investigation etc. [respondents 8 to 10]
into the allegations made against the Justice Bhattacharjee and if the same are found true, to
direct the Speaker Lok Sabha to initiate action for his removal under Article 124 (4) and (5) read
with Article 218 of the Constitution of India and Judges (Inquiry) Act, 1968.
Supreme court:

This Court on March 24, 1995 issued notice to respondents BCMG,BBA and AAWI only
and rejected the prayer for interim direction to the President of India and the Union of
India not to give effect to the resignation by the 1st respondent.

Court also issued notice to the Attorney General for India and the President of the
Supreme Court Bar Association [SCBA].

The BBA filed a counter affidavit through its President, Sri Iqbal Mahomedali Chagla.
Though respondents BCMG and AAWI are represented through counsel, they did not file
any counter-affidavit. The SCBA informed the Court that its newly elected office bearers
required time to take a decision on the stand to be taken and court directed them to file
their written submissions

Contentions of the Petitioner:

The petitioner argued that the news published in various national newspapers do prove
that respondents BCMG and AAWI had pressurised Justice Bhattacharjee to resign from
the office as Judge for his alleged misbehaviour.

The Constitution provides for independence of the Judges of the higher courts, i.e., the
Supreme Court and the High Courts. It also lays down in proviso [a] to clause (2) of
Article 124; so too in Article 217 (1) proviso (a) and Article 124 (4), procedure for
88

voluntary resignation by a Judge, as well as for compulsory removal, respectively from

office in the manner prescribed therein and in accordance with the Act and the Rules
made there under.

The acts and actions of the respondents BCMG and AAWI are unknown to law, i.e.,
removal by forced resignation, which is not only unconstitutional but also deleterious to
the independence of the judiciary.

Argued and requested the Court to adopt such procedure which would safeguard the
independence of the judiciary and protect the judges from pressure through
unconstitutional methods to demit the office.

BBA explained the circumstances that led the BBA to pass the resolution requesting Justice
Bhattacharjee to demit his office as a Judge in the interest of the institution.

It was also rumoured that the former Chief Justice of Bombay has been paid a large sum
of money in foreign exchange purportedly as royalty for a book written by him, viz.,
Muslim Law and the Constitution. The amount of royalty appeared to be totally
disproportionate to what a publisher abroad would be willing to pay for foreign
publication of a book which might be of academic interest within India There was a
growing suspicion at the Bar that the amount might have been paid for reasons other than
the ostensible reason.

Further stated that Justice Bhattacharjee himself had discussed with the Advocate General
on February 14, 1995 impressing upon the latter that the Chief Justice had decided to
proceed on leave from the end of February and would resign in April 1995.

Suddenly on February 19, 1995, a press interview published in Times of India said to
have been given by Justice Bhattacharjee stating that he had not seriously checked the
antecedents of the publishers and it was possible that he had made a mistake in accepting
the offer. He was not contemplating to resign from judgeship at that stage and was
merely going on medical leave for which he had already applied for and was granted.

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AFTERMATH:

The BCMG passed a resolution on February 19, 1995 seeking resignation forthwith of
Justice. On February 21, 1995, the BBA received a requisition for holding its General
Body meeting to discuss the financial dealings said to have been had by the Justice for a
purpose other than the ostensible purpose thereby raising a serious doubt as to the
integrity of the Chief Justice. At the desire of Chief Justice to meet, Shri Chagla and Shri
Yande met him at his residence at 10.00 a.m.:

Justice Bhattacharjee informed that he had already agreed to resign and in fact called for
and showed a letter dated 17th February, 1995 addressed to the Honourable the Chief
Justice of India in which he proposed to go on medical leave for a month and that at the
end of the leave or even earlier he proposed to tender his resignation.

Justice Bhattacharjee assured Shri Chagla and Shri Yande that he would resign within a
week which resignation would be effective some 10 or 15 days thereafter and that in the
meanwhile he would not do any judicial work including delivery of any judgment

On enquiry being made from the Principal Secretary to Justice Bhattacharjee whether he
had tendered his resignation, it was replied in negative which showed that he had not kept
his promise. Consequently, after full discussion, for and against, an overwhelming
majority of 185 out of 207 permanent members resolved demanding his resignation.

Since the 1st respondent has already resigned, the question is whether a Bar Council or Bar
Association is entitled to pass resolution demanding a judge to resign, what is its effect on the
independence of the judiciary and whether it is constitutionally permissible.
Shri Nariman counsel for BBA contended that:

The Supreme Court and the High Court are two independent constitutional institutions.
The Judges and the Chief Justice of a High Court are not subordinate to the Chief Justice
of India. The constitutional process of removal of a Judge as provided in Article 124 (4)
of the Constitution is only for proved misbehaviour or incapacity.
90

Impeachment proceedings against Justice V. Ramaswami indicate that the process of

impeachment is cumbersome and the result uncertain. Bar being a collective voice of the
court concerned has responsibility and owes duty to maintain independence of the
judiciary.. Bar is not aware of any other procedure than the one under Article 124 (4) of
the Constitution, and the Act.

Therefore, the BBA, instead of proceeding to the press, adopted democratic process to
pass the resolution, in accordance with its bye-laws, when all attempts made by it proved
abortive. The conduct of the Judge betrayed their confidence in his voluntary resignation.
Consequently, the BBA was constrained to pass the said resolution. Thereby it had not
transgressed its limits.

Shri Salve Counsel for BCMG contended that:

Justice Bhatacharjee is its member, submitted that when the Bar believes that the Chief
Justice has committed misconduct, as an elected body it is its duty to pass a resolution
after full discussion demanding the Judge to act in defence of independence of the
judiciary by demitting his office.

Independence of the judiciary is paramount. Such procedure which would be conducive

to maintain independence of the judiciary and at the same time would nib the evil in the
bud, needs to be adopted. Court to evolve a simple and effective procedure to meet the
exigencies.

Attorney General contended:

Any resolution passed by any Bar Association tantamounts to scandalising the court
entailing contempt of the court. It cannot coerce the Judge to resign.. The Chief Justice of
India would adopt such procedure as is appropriate to the situation.

Cited the advice tendered by Lord Chancellor of England to Lord Denning, when the
latter was involved in the controversy over his writing on the jury trial and the
composition of the black members of the jury, to demit the office, which he did in grace.
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Rule of Law and Judicial Independence Why need to be preserved?

Rule of law and judicial review are basic features of the Constitution. As its integral
constitutional structure, independence of the judiciary is an essential attribute of rule of law. In
S.P.Gupta vs. Union of India [(1981) Supp. SCC 87], this Court held that if there is one
principle which runs through the entire fabric of the Constitution it is the principle of the rule of
law, and under the Constitution it is the judiciary which is entrusted with the task of keeping
every organ of the State within the limits of the law and thereby making the rule of law
meaningful and effective.
Judicial review is one of the most potent weapons in the armoury of law. The judiciary stands
between the citizen and the State as a bulwark against executive excesses and misuse or abuse of
power by the executive. It is, therefore, absolutely essential that the judiciary must be free from
executive pressure or influence which has been secured by making elaborate provisions in the
Constitution with details.
Judicial individualism whether needs protection? Independent judiciary is, therefore, most
essential when liberty of citizen is in danger. The heart of judicial independence is judicial
individualism. Justice Douglas in his dissenting opinion in Stephen S. Chandler v. Judicial
Council of the Tenth Circuit of the United States [1970] USSC 160; [398 US 74:26 L.Ed. 2d
100] stated:No matter how strong an individual judge's spine, the threat of punishment the
greatest peril to judicial independence would project as dark a shadow whether cast by political
strangers or by judicial colleagues. A federal judge must be independent of every other judge.
Neither one alone nor any number banded together can act as censor and place sanctions on him.
It is vital to preserve the opportunities for judicial individualism.

Principles laid down in regard to Bar-Bench relations.

By passing a resolution for the removal of a sitting Judge of a High Court, the Bar
Association has made a contempt of Court. This is not a proper manner of removal of a

92

Judge. Article 124 gives the power to the Parliament to remove a Judge of a High Court
or a Supreme Court only after impeachment and by following proper procedure.

A Libel upon a judge in his judicial capacity is contempt.

Sanjay R Kothari v. South Mumbai Consumer

Disputes Redressal Forum.
Questions raised
The matter was decided by a 2 judge bench of the Bombay High Court. The questions raised in
this case, which consisted of 2 writ petitions involving common issue, were whether parties
before the Consumer Disputes Redressal Forum(CDRF) and Consumer Disputes Redressal
Commission are entitled to be represented by authorised agents who are not enrolled under the
Advocates Act, 1961 and such Authorised Agents have the right of audience.
Brief Facts
The petitioners in the first writ petition who are advocates by profession, filed complaint
respondent Nos. 2 and 3 tour operators before respondent - CDRF complaining deficiency in
their service. The petitioners through this writ petition contests the order given by CDRF which
held that Shri Jahangir Gai, the authorised agent of the petitioners, had no right to plead before
the Consumer Forum since he is not enrolled as an Advocate under the Advocates Act, 1961.
The second writ petition has been filed by original Complainant, petitioner No. 1 and his
"authorised agent", petitioner No. 2 against the order of the CDRF restraining petitioner No 2
from appearing before it. CDRF also passed order preventing any agent other than advocates
from appearing before it.
Though in the aforesaid writ petitions, the issue involved is common, the difference is that in
first writ petition "the consumer" is before the Court contending that he has a right to engage an
"agent" to act, appear and plead before the Consumer Forum, while in the second writ petition,
93

the authorised agent himself is before the Court contending that he has every right to act, appear
and plead before the Consumer Forum as authorised agent of the parties whenever parties so
desire.
Since the question of greater importance to the Bar was raised, the Bar Councils of Maharashtra
and Goa and the Bar Council of India were impleaded into the petition.
Relevant provisions of statutes discussed
The Maharashtra Govt framed rules in exercise of its power under S 32 of the Consumer
Protection Act of 1986. A party to a dispute before the Consumer Forum has a right to appoint
an agent to represent it and the said right is conferred under the Rules of 2000 which are
framed by the State of Maharashtra in exercise of the powers conferred on it under Section 30(2)
of the Act of 1986(Rules 4(7) and 8(7)).
Ss 29,32 and 33 of Advocates Act were also discussed in the case. The sum and substance of
these provisions are - the right conferred on advocate under the provisions of the Advocates Act
is a statutory right and not a fundamental right guaranteed under the Constitution. A person who
is not an advocate cannot practise law. Any person other than party to the proceedings or
advocate cannot claim right of audience before the Court, tribunal or authority unless it is
provided by law or such person is specifically permitted by such court, tribunal or authority.
Thus, a person who is not enrolled as advocate can appear before the authority or person if
so provided by law.
Decision of the Court
A party to the proceeding before the District Forum/State Commission has right to authorise a
person of his choice to represent him and appearance of such agent authorised by the party on the
date of hearing before District Forum/State Commission is not restricted to physical appearance
but includes in terms of Rule 4(7), 8(7) or 9(6) of Rules of 2000 to examine and cross examine
the witnesses, address the court and take part in the proceedings as the case may be.
The Act of 1986 is a special piece of legislation for the better protection of the interests of
consumers. In District Fora, State Commission and the National Commission, extensive
participation is given to non-legal or non-judicial persons to be members of the District Fora,
94

State Commission or National Commission. The Act has been enacted to give succour and relief
to the affected or aggrieved consumers quickly with nil or no expense. Therefore taking a view
which does not grant the authorised agent of the complainant, the right to appearance (which
includes right to examine and cross examine witnesses, address the court and take part in the
proceedings) and the right to audience by the Court would negate the objectives for which the
Act of 1986 was enacted. By not accepting the writs, the complainant to the proceeding before
District Forum/State Commission who cannot conduct the case himself shall be compelled to
engage the services of legal practitioner when the law makers intended to provide remedy with
nil or no expense. Therefore the Court accepted the writ and ruled in favour of the petitioners
holding that authorised agent of complainant can appear before the Consumer Fora and this agent
has the right to audience before the Fora.
Relevant cases discussed
HarishankarRastogi v. Girdhari Sharma.AIR 1978 SC 1019
The Supreme Court in this case held that a private person, who is not an advocate, has no right to
barge into Court and claim to argue for a party. He must get the prior permission of the Court, for
which the motion must come from the party himself. It is open to the Court to grant or withhold
permission in its discretion. In fact, the Court may, even after grant of permission, withdraw it
half-way through if the representative proves himself reprehensible.
Observations and the ratio laid down in the case of Harishankar Rastogiwould not have any
application in the present case. Firstly, the Apex Court was considering an application of a
person who was seeking permission to be represented by another person who was not an
advocate to represent him before the Apex Court and not before Consumer Fora. Secondly, case
in hand arises out of social beneficial oriented legislation enacted for better protection of the
interest of consumers. Thirdly, the Consumer Fora are quasi judicial authority and not a Court
and fourthly the Code of Civil Procedure is not applicable except for a limited purpose reflected
in Sub-section (4) of Section 13 of the Act of1986.Thus the Court held that the ratio of
Harishankar Rastogi cannot be applied in the instant matter.
Various other cases were also mentioned and discussed, however they are not relevant.

95

Shiv NarainJafa Vs. The Hon'ble Judges of the High Court of Judicature at Allahabad
AIR1953SC368, (1953)IIMLJ238(SC)
Brief Facts: The advocate (Mr. Jafa) appealed against a decision of the Full Bench of the
Allahabad High Court, suspending him from practice for a period of 6 months under the
provisions of the Indian Bar Councils Act. Mr. Jafa represented a man accused of attempting to
rape a woman (Himman) of the lower caste at a trial before the Asst. Sessions Judge, u/s 376,
IPC, r/w S. 511, IPC. Despite the defence put forth, by way of improbability of his committing
the offence due to physical defect as well as by attributing false implication by his enemies, the
accused was sentenced to rigorous imprisonment for 5 years, which was brought down to one
year on appeal. Owing to the conduct of the advocate during the trial, the Asst. Sessions Judge
complained to the High Court for taking disciplinary action against Mr. Jafa for professional
misconduct.
Issues: The HC directed the District Judge, u/s 10(2), Bar Councils Act to hold an inquiry into
the matter, pursuant to which the Dist. Judge framed several charges and found that Mr. Jafa
should not be allowed to continue as a member of the Bar.
There were 3 main charges:
The first charge mainly referenced Mr. Jafas conduct in the trial.
The second charge (based on questions put to Himman, and a witness in another case) is to the
effect that Mr. Jafa was in the habit of putting scandalous and obscene questions to women
witnesses.
The third charge is that he deliberately raised groundless personal issues (to pick up quarrels and
bully the presiding officers of courts).
The High Court acquitted Mr. Jafa of all charges, save 2 subsidiary charges, the content and
reasons for which are explained below:

96

The action of Mr. Jafa in misleading the court by listing Himmans husband in an application for
a copy of his witness statement, even though u/s. 162, CrPC, he could not apply for and obtain a
copy of the statement recorded by the Police as the husband was not called for the prosecution to
give evidence in the Sessions trial. This action of the Advocate is characterised by the High
Court as a piece of sharp practice which was entirely unworthy of a member of the Bar and
amounted to professional misconduct.
Mr. Jafa had put forth a very improper and irrelevant question to the Investigating Inspector (S.I.)
in cross-examination in the trial, (whether he had been alone with Himman in her field till midnight or till a late hour in the night). The suggestion of misbehaviour by the S.I, was a scandalous
allegation put forward in the form of a question without any real justification. The HC took the
view that the Advocate's conduct was reprehensible and that it amounted to professional
misconduct which would justify disciplinary action against him.
Other questions put forth by Mr. Jafa in the trial, such as those put to Himman as to the physical
characteristics of the accused, were held by the HC as reflecting in some measure upon the
Advocate's capacity as a lawyer and containing no sufficient reason for holding that Mr. Jafa
deliberately intended to put indecent questions to the witness merely to embarrass and annoy her.
Held: The Supreme Court, in considering the matter on appeal, felt that the case did not deserve
severe disciplinary action and held for the 2 subsidiary charges that:
Mr. Jafas conduct in obtaining the copy as under the first subsidiary charge, cannot justify
suspension from practise, as the Court itself failed to exercise its jurisdiction in not refusing the
application in view of the express provisions of Section 162.
The questions put by Mr. Jafa did carry a veiled insinuation about the S.Is behaviour, but were
not objected to by the S.I. or the Court, and were intended to impeach the S.Is credit. However,
the subject matter of the questions and the manner in which they were put were held by the
Supreme Court to suggest that the advocate did exceed the legitimate bounds of his privilege to
some extent. While the HC order was set aside, Mr. Jafa was issued a warning by the Court, so as
to make him more careful in the future.

97

P.J. Ratnam v. D. Kanikaram and Ors., AIR 1964 SC

244 7 pages
Bench C.J. Bhuvaneshwar Prasad Sinha, J. JC Shah, J. N Rajagopala Ayyangar
Brief Facts
Respondents and one other were Pl. in O.S. 432 of 1951 before the District Munsiff,
Guntur claim for possession of certain lands; appellant was the advocate of the
respondents.
Suit dismissed by the Trial Court and appealed before the Sub Judge, Guntur pending
disposal of appeal court directed sale of standing crops on suit - land and deposit of
proceeds in the court; accordingly, sum of Rs. 1,600/- deposited in Court on 19th
December, 1951.
Appeal allowed by Sub Judge and the unsuccessful defendants of that cases preferred a
second appeal before the High Court meanwhile, Pl. applied to withdraw the sum
deposited in Court.
interim order of high court granted liberty to Pl. to withdraw the money, pending disposal
of second appeal, after furnishing security of immoveable property.
Security furnished, withdrawal ordered cheque petition EA 250 of 1952 filed and
allowed cheque issued to the Advocate (Appellant of this case) for a sum of Rs.
1,452.40/- which was left over after deduction of poundage etc. in favour of the Pl.
(respondents of this case)
Appellant advocate cashed the cheque on 23 April, 1953 and the allegation against him is
that he did not pay the sum to the Respondents despite their repeated demands.
Second Appeal before the High Court was allowed in August 1955 and the sum had to be
refunded to those defendants.
8th February 1956, Pl.(Respondents) made a written demand on appellant(lawyer)
claiming the unpaid proceeds from the cheque that was issued in their credit but which
the Appellant allegedly did not hand over.
April 14th 1956 appellant replied claiming to have paid over the said sum on their passing
a receipt and that the receipt was in the bundle of case papers which had been returned to
the Respondents.

98

 Before receipt of reply, the respondents filed complaint u/s 12 and 13 of the Legal
Practitioners act alleging non payment of money and charging the advocate with
professional misconduct and praying for an enquiry.
As the Appellant was an advocate, the complaint was treated as one u/s 10(2) of the Bar
Councils Act, 1926.
Explanation of advocate called for; District Judge, Guntur directed to hold enquiry into
the matter and submit report to the High Court.
District Judges report held that Appellants (lawyer) case was not unbelievable and that
he was entitled to the benefit of the doubt.
High Court hearing of the same alleged that material witnesses were not examined
agreeing with the same HC directed the Dist. Judge to summon and examine the
witnesses, record and submit their evidence.
Subsequently, matter was heard by a three judge bench of the HC and they held that the
charge against the appellant i.e. that he did not pay over the money was clearly made out
and held him guilty of professional misconduct and suspended him from practise.
Appellant (lawyer) preferred a SLP under Article 136 challenging the decision.
Issues and Decision
Bar Council had not been consulted before the case was referred to the learned
District Judge for inquiry and report and this vitiated the legality of the entire
proceedings against the appellant. Section 10(2) of the Indian Bar Councils Act lays
down that upon receipt of a complaint, by a court, or Bar Council or any person, as to the
conduct of an Advocate, the HC (if it does not summarily reject such complaint) refer the
case for inquiry to the Bar Council, or after consultation with the Bar Council to the
Court of the District Judge.
Held matter is a question of fact; the matter was not agitated before the HC at the time
of hearing or at the time of applying for certificate to appeal before the SC under Article
136. Thus Court declined to look into the factum of whether or not such a consultation
had taken place, and if it did not then why it did not etc. even if the section was
mandatory. Presumption of legality of judicial and official acts absence of explicit
statement in the order of reference u/s 10(2) to the Dist. Judge about consultation with
Bar Council did not automatically prove that there was no consultation.

99

 Complaint filed by respondents not signed or properly verified per relevant HC rules
dissimilarity of signatures of respondents the petition was not filed by the
respondents but by someone inimical towards the Appellant.
Held objection considered frivolous and dismissed
As the complaint against the lawyer was misappropriation of money, the court should
have asked the complainants to prosecute the appellant for the same and not initiated
action against the lawyer u/s 10.
Held without going into the substantive law presented, the court stated that the object of
a proceeding in respect of professional misconduct differs from others proceedings
under the Bar Councils Act are taken to ensure that the highest standards of professional
conduct are maintained at the Bar such proceedings designed for the purpose of
maintaining discipline and to ensure that a person does not continue in practice who by
his conduct has shown that he is unfit to do so. Other proceedings for the purpose of
enforce the law and punish the offender. Although court accepted that if ordinary
proceedings were initiated against the erring lawyer and he was acquitted, there would be
no scope for a charge of professional misconduct on the same facts. Discretion in
deciding how to treat such complaints not beyond the jurisdiction of the court to
proceed with enquiry for professional misconduct when the charge against him is an
offence under ordinary criminal law misconduct in this case intimately connected with
duty of lawyer to his client in his professional capacity.
Stephens v. Hill - if the attorney has been guilty of something indictable in itself but not
arising out of the cause (in which he is engaged professionally) the Court would not
inquire into that with a view to striking him off the roll but would leave the party
aggrieved to his remedy by a criminal prosecution.
Procedural irregularity - mode in which the case against the appellant was
conducted - evidence on behalf of the complainants was permitted to be led after the
appellant had examined himself and it was urged that thereby the complainants had
been afforded an opportunity of filling up any lacuna in their case.
Held dismissed
Pl. No. 4 (Kagga Veeraiah) had admitted that he and the other Pl.s had received the
proceeds of the cheque and the HC was wrong in finding against the appellant
Held case of the complainants that 4th Pl. (Kagga) died in 1957 man produced as
Court Witness No. 7(CW 7) claiming to be Kagga and stating that the money had been
paid was an impersonator death certificate of Kagga produced cross examination of
100

the CW 7 was unsatisfactory; either CW 7 was an impersonator or being the real Kagga
he was lying SC did not interfere with the HCs appreciation of this fact.
Punishment of 5 years too harsh
Held punishment given too lenient in view of misappropriation of clients money and
bringing false evidence - refused to change the punishment.

SUPREME COURT BAR ASSOCIATION v. UNION OF

INDIA
(1998) 4 SCC 409
CORAM:
HON'BLE JUSTICE S. C. AGRAWAL, HON'BLE JUSTICE G. N. RAY, HON'BLE JUSTICE
DR. A. S. ANAND,
HON'BLE JUSTICE S. P. BHARUCHA& HON'BLE JUSTICE S. R. BABU
FACTS
In Supreme Court bar Association case, the Supreme Court revisited its earlier decision in Vinay
Chandra Mishra, Re. In Vinay Chandra Mishra case, the Supreme Court punished a lawyer for
contempt. While meting out the punishment, apart from sentencing for imprisonment, the lawyer
was suspended from practice for a period of 3 years.
Aggrieved by the decision of the Court to suspend the lawyer for 3 years under contempt
jurisdiction, the Supreme Court Bar Association, through its Honorary Secretary, approached the
Supreme Court under Art.32 of the constitution.
ISSUES
Whether the Supreme Court has powers to enquire into or debar / suspend a lawyer for
professional misconduct, which is an exclusive jurisdiction of Disciplinary Committee of BCI,
arising out of contempt of court?
HELD
Supreme Court has been vested with all the powers of a Court of Record under Art. 129 of the
Constitution. A court of record is a court, the records of which are admitted to be of evidentiary
101

value and are not to be questioned when produced before any court. The power of the courts of
records to punish for their contempt is part of their inherent jurisdiction and is essential for the
proper administration of justice. The powers of the Supreme Court to punish for contempt is also
governed by Art.142 of the Constitution. Art.142(2) allows the Parliament to create a statute for
regulating the contempt powers of the apex court. However, no such law has been enacted by the
Parliament. The Contempt of Courts Act does not have provisions which deal with the Supreme
Courts powers to enquire and inflict punishment for contempt.
Jurisdiction of the Supreme Court to punish an advocate for contempt is different from the
jurisdiction of the Supreme Court to punish an advocate for professional misconduct. In Vinay
Chandra Mishra case, the Supreme Court had held that since, the apex court had appellate
jurisdiction under S.38 of the Advocates Act over the punishment imposed by the Disciplinary
Committee, it also had powers to suspend or debar a lawyer from practicing under contempt
jurisdiction. The Court held that Punishment for professional misconduct is the exclusive
jurisdiction of the State bar Councils or Bar Council of India. Supreme Court while punishing an
advocate for contempt cannot punish him by suspending his license for practice or removing his
name from the rolls of the State Bar. Such punishments cannot be imposed by the Supreme Court
even while exercising its appellate jurisdiction under S.38 of the Advocates Act,1961. When the
Court finds an advocate for contempt of court, the Bar Councils should act in aid of the Court
and initiate proceedings for professional misconduct as per the relevant provisions of the
Advocates Act and Rules. To that extent, the Court overruled the decision in Vinay Chandra
Mishra Case.
This decision has been approved in Bar Council of India v. High Court of Kerala.

TC Mathai and Anr V. District, Sessions Judge

Thiruvananthapuram ,Kerala
Division bench- K T THOMAS & M B SHAH
Facts-The appellant claims to be power of attorney holder of the respondants , a couple in
Kuwait-asked permission at Session Court Tvm to represent them in criminal revision petition
where they are arrayed as respondants- court denied as such request didnt emanate from
respondant couple-moved to HC Kerala under A-226 for issuance of direction to the session
102

judge to grant permission sought- single judge HC dismissed original petition against the
appellant filed a writ appeal which was also dismissed by Division bench of HC- Appellant
moved to Supreme Court appeared in person to argue in this matter.
His contentions as he having the power of attorney he should be allowed to plead on behalf of
the respondant couple
Sec 303 of CrPc entitles a person to right of being defended by a pleader of his choice.
The term pleader defined 2(q) Pleader, when used with reference to any proceeding in any
court, means a person authorized by or under any law for the time being in force, to practice in
such court, and includes any other appointed with the permission of the court to act in such
proceeding.
The definition include two people:
1) legal practitioner
2) any other person- here the permission of the Court must be obtained in order to appear in the
Court ,in tune with sec 32 of the adv act which empowers the Court to permit anyone who is not
enrolled as an advocate to appear before it in any particular case. But if he is to plead for another
person in a criminal Court such permission must be sought for by that person.
It is not necessary that pleader should be the power of attorney holder of the party in the case, the
necessity is the permission of the Court must be obtained.
The work in a Court of law is a serious function. The primary duty of the criminal court is to
administer criminal justice .Any mistake can cause serious consequences to the parties
concerned. It is not just somebody representing the party in the criminal court who becomes the
pleader of the party. An advocate is entitled to represent but in the matter of other proposed
person if he is not such a qualified person the Court has to first satisfy itself whether the person
would be able to assist the Court as expected. The reason for Parliament for fixing such a filter in
the def clause 2(q), that prior permission must be secured before a non advocate is appointed by
the party to plead his cause in Court , is to enable the Court to verify the level of equipment of
such person for pleading on behalf of the party.
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The appellant submitted that he is the duly appointed attorney of the respondent-couple by virtue
of an instrument of power of attorney executed by them and on its strength he contended that his
right to represent the respondent-couple in the court would be governed by the said authority in
the instrument.
Section 2 of the Power of Attorney Act 1882 empowers the donee of a power of attorney to do
anything in and with his own name and signature by the authority of the donor of the power.
Once such authority is granted, the said Act recognises that everything done by the donee shall
be as effectual in law as if it had been done by the donee of the power in the name and with the
signature ..... of the donor thereof.
Section 2 of the Power of Attorney Act Cannot override the specific provision of a statute which
requires that a particular act should be done by a party-in-person.
When the Code requires the appearance of an accused in a court it is no compliance with it if a
power-of-attorney holder appears for him. It is a different thing that a party can he permitted to
appear through counsel.
Chapter XVI of the Code empowers the Magistrate to issue summons or warrant for the
appearance of the accused. Section 205 of the Code empowers the Magistrate to dispense with
the personal attendance of the accused, and permit him to appear by his pleader if he sees
reasons to do so. Section 273 of the Code speaks of the powers of the court to record evidence in
the presence of the pleader of the accused, in cases when personal attendance of the accused is
dispensed with. But in no case can the appearance of the accused be made through a power-ofattorney holder. So the contention of the appellant based on the instrument of power of attorney
is of no avail in this case.
Appeal dismissed.

Thomas P C v. Bar Council of Kerala & Ors

69
Coram: K. Balakrishnan Nair, J.
Facts;
104

AIR 2006 Ker

This Writ Petition is filed by a Priest. He submitted the application for enrolment, before the
Kerala Bar Council. However, he was called upon to submit certain particulars and also to
furnish an affidavit, stating that, he is not holding any post or rendering any service or doing any
business or profession in any society or institution. He submitted the documents and also
produced a certificate, which stated that he is working as a Parish Priest of a Church, for which,
there was no remuneration. The Petitioner was called for a hearing, by the Enrolment Committee
but he was not permitted to participate in the enrolment. According to the Bar Council, the
petitioner has entered the profession of divinity which has got all the trappings of an employment
or a profession. He is employed as a parish priest and therefore, is not eligible to be enrolled as
an advocate, as per the rules (Rule 2(h) of the Bar Council of Kerala Rules & Rules 47 to 49 of
the Bar Council of India Rules).
Question raised:
Whether priests and nuns are eligible to be enrolled as advocates?
Held:
Going by the dictionary meaning of profession, religion/divinity is treated as a profession. So,
nuns and priests are members of that profession. But, the profession mentioned in Rule 2(h) of
the Bar Council of Kerala Rules, is a profession, which is analogous to trade or business, which
generates income and not the profession of religion. The contention of the Respondents that
priests, nuns etc., are not eligible to join the profession of lawyering, is not supported by any
statutory provision. The entry of such persons, will only add luster to the profession. The
profession needs selfless dedicated persons to take up the causes of the downtrodden without
being concerned with the fee paid. Being a Parish priest, also need not be necessarily a
disqualification, as the same will depend upon the time required to discharge his duties as a
Parish priest. If those duties, are rendered as a part-time voluntary service to the parishioners and
the same will not affect his functioning as a full-time lawyer, he can be allowed to be enrolled.
Otherwise, he can be asked to quit the post of Parish priest, to enable him to get enrolled as an
Advocate.

105

U.P. Sales Tax Service Association v. Taxation Bar

Association, Agra and Others
Citation: (1995) 5 SCC 716
Quorum: K. Ramaswamy and B.L. Hansaria
Relevant Law: Advocates Act, 1961 - Section 35, Contempt of Courts Act, 1971 Section 2(c)
Pages: 14
Facts:
Pursuant to a resolution passed by the Taxation Bar Association, one Ramesh Chander Gupta,
Advocate and President of that Association along with two others met Respondent 3, Satti Din
[Deputy Commissioner (Appeals), Sales Tax] in his chamber and accused him of demanding
illegal gratification in the discharge of his duties as appellate authority and dissatisfaction widely
prevailing amongst the advocates and litigants. Allegations and abuses were made by both sides
resulting in widespread violence.
The advocates then went on strike. Later, the first respondent made a representation to the
District Magistrate, Agra, who asked Satti Din to go on leave on the conditionthat advocates
would withdraw the strike. Though Satti Din initially went on leave, the advocates continued the
strike. On his superior officers instructions, Satti Din rejoined duty. The advocates called an
emergency meeting of the Associations and resolved to boycott all courts and observe total
strike. Furthermore, they made representations to the Governor, Attorney-General and all
concerned. The Attorney-General also initiated contempt proceedings against Satti Din and
issued a show-cause notice under Section 15 of the Contempt of Courts Act.
As the strike did not evoke the desired response, Respondent 1 filed a writ petition under Article
226 in the High Court. The High Court passed an order restraining Respondent 3 from
discharging his functions until further orders and making it open to the Commissioner to transfer
his cases to another court. This appeal reached the Supreme Court by special leave under Article
136 of the Constitution.

106

To satisfy whether there is some substance to the allegations of corruption against the officer,
the Government was sent a notice to produce all his confidential service records and the
Secretary filed an affidavit. The Court could not find any adverse remarks or any imputation
with regard to corruption. The Court concluded that these allegations were made by
Respondent 1 as they had been irked by Satti Din disposing of all matters on merits and not
conceding to their demands for adjournments.
Issues:
The crucial question before the Court was whether the High Court could issue a writ or
direction prohibiting a statutory authority from discharging quasi-judicial functions; direction
to the State Government to withdraw all powers from it and transferring the pending cases
before the officer to any other authority? Whether advocates would be justified to go on strike
as a pressure group in that behalf?
Decision:
The Court after considering several decisions and authorities came to the conclusion that the
High Court does not have the aforesaid power. Exercise of such power generates its rippling
effect on the subordinate judiciary and statutory functionaries. On the slightest pretext by the
aggrieved members or displeased members of the Bar, by their concerted action they would
browbeat the judicial officers or authorities, who would always be deterred from discharging
their duties according to law without fear or favour or ill-will.
If the rule of law is to have any meaning, the confidence of the public in the authority of a
court or statutory authority should not be allowed to be shaken, diluted or undermined. Casting
defamatory aspersions upon the character, ability or integrity of the judge/judicial
officer/authority undermines the dignity of the court/authority and tends to create distrust in
the minds of the public and impede their confidence. Therefore, making wild allegations of
corruption against the presiding officer amounts to scandalising the court/statutory authority.
With regard to the strike by the advocates, the Court observed that advocates strike work and
boycott courts at the slightest provocation overlooking the harm caused to the judicial system.
107

An advocate is an officer of the court and enjoys a special status in the society. After analysing
several precedents on this subject, it was concluded that the advocates in this case were not
justified in calling for a strike and boycott. Moreover, the Court observed that the advocate in
this case in arming himself with a licensed revolver and attending the court with the same was
acting in a manner that was regrettable and not befitting the dignity of the legal profession.

V.C. RANGADURAI v. D. GOPALAN AND OTHERS AIR

1979 SC 201; (1979) 1 SCC 308
Judges: V.R. Krishna Iyer, D. A. Desai, and A.P. Sen
No. of pages: 14
The appeal files under section 38 of the advocates act, 1961 by V C Rangadurai, an advocate
against the order of the disciplinary committee of the bar council of India upholding the order of
the disciplinary committee II of the state bar council, Tamil Nadu.
In the instant case advocate received a money suite from brief his client who is 70 year old deaf
man (Deivasenapathy) and his aged wife (Smt. Kamalammal) and the power of attorney agent of
the complainants (D. Gopalan) for the suit that the money advanced by the client under two
promissory notes for Rs.15,000/- and Rs. 5000/- were not repaid by the debtor. The client
handed over the case before the expiry of the limitation period to the advocate. They also paid
the fee as fully demanded by an advocate. The advocate failed to file the suite with in the
limitation period and even after the considerable time. In spite of this, the advocate made false
representations to the complainants that the suits had been filed and were pending, gave them
various dates as fixed in the two suits and later on falsely told them that the court had passed the
decrees for recovery on the basis of two promissory notes. On the faith of such representations,
the complainants issued a lawyers notice on the debtor (Smt. Maragathammal) to pay the
amount due under decrees. Actually no such had in fact been filed nor any decree passed.
On a complaint being made to the State Bar council, Tamil Nadu the appellant denied having
received the two promissory notes or any amount for court-fees or his fees. He also pleaded that
though he had drafted the plaints, he handed over the case to another advocate (K. S. Lakshmi
108

Kumaran), a junior who was the complainants choice, as he felt that since the debtor had
consulted him in another matter, he as should not be engaged by the complainants. The other
advocate pleaded that he had never met the complainants nor he had been instructed by them to
file the suits, but had in fact signed the vakalat as junior counsel, as a matter of courtesy at the
appellants behest. He also said that the appellant later told him that the plaint together with all
the documents had been returned to the complainants as per a receipt. The receipt was found by
the bar council to be forged by the appellant. The state bar council observed that in a case of such
grave professional misconduct the appellant deserved the punishment of disbarment but in view
of his young age, suspended him from practice for six years under section 35(4) of the act.
He failed an appeal to the bar council of India. The disciplinary committee of the Bar Council of
India upheld the decision, however reduced the period of suspension of the appellant from
practice to one year.
Further failed an appeal in the Supreme Court under section 38 of the Advocates Act, 1961, the
appellant contended that the finding of professional misconduct was nit based on legal evidence
but proceeded on mere conjectures and that the finding could not be sustained as there were
discrepancies in the evidence. The apex court dismissed the appeal with a modification in the
punishment that the appellant will do only free legal aid for one year under the State Legal aid
Board and produces a certificate in that behalf from the board and shall not accept any private
engagement during this period. And also pay Rs.2, 500 to the victim of the misconduct.
The Court also has stated and outlined the duties and responsibilities of a counsel. In paragraph
30 of the said judgment this Court has held that counsels paramount duty is to the client and
accordingly where he forms an opinion that a conflict of interest exists, his duty is to advise the
client that he should engage some other lawyer. It was further held that it is unprofessional to
represent conflicting interests, except by express consent given by all concerned after a full
disclosure of the facts. The Court further went on to hold that the relation between a lawyer and
his client is highly fiduciary in its nature and of a very delicate, exacting, and confidential
character requiring a high degree of fidelity and good faith and that it is purely a personal
relationship, involving the highest personal trust and confidence which cannot be delegated
without consent. This Court also held that when a lawyer is entrusted with a brief, he is expected

109

to follow the norms of professional ethics and try to protect the interests of his clients, in relation
to whom he occupies a position of trust.
Sections
Section 35 Punishment of advocates for misconduct.
(1) Where on receipt of a complaint or otherwise a State Bar Council has reason to believe that
any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case
for disposal to its disciplinary committee. 1[(1A) The State Bar Council may, either of its own
motion or on application made to it by any person interested, withdraw a proceeding pending
before its disciplinary committee and direct the inquiry to be made by any other disciplinary
committee of that State Bar Council.]
(2) The disciplinary committee of a State Bar Council 2[***] shall fix a date for the hearing of
the case and shall cause a notice thereof to be given to the advocate concerned and to the
Advocate-General of the State.
(3) The disciplinary committee of a State Bar Council after giving the advocate concerned and
the Advocate-General an opportunity of being heard, may make any of the following orders,
namely:
(a) dismiss the complaint or, where the proceedings were initiated at the instance of the State Bar
Council, direct that the proceedings be filed;
(b) reprimand the advocate;
(c) suspend the advocate from practice for such period as it may deem fit;
(d) remove the name of the advocate from the State roll of advocates.
(4) Where an advocate is suspended from practice under clause (c) of sub-section (3), he shall,
during the period of suspension, be debarred from practising in any court or before any authority
or person in India.
(5) Where any notice is issued to the Advocate-General under sub-section (2), the AdvocateGeneral may appear before the disciplinary committee of the State Bar Council either in person
110

or through any advocate appearing on his behalf. 3[Explanation.In this section, 4[section 37
and section 38], the expressions Advocate-General and Advocate-General of the State shall,
in relation to the Union territory of Delhi, mean the Additional Solicitor General of India.]
Section 37 Appeal to the Bar Council of India.
(1) Any person aggrieved by an order of the disciplinary committee of a State Bar Council made
1[under section 35] 2[or the Advocate General of the State] may, within sixty days of the date of
the communication of the order to him, prefer an appeal to the Bar Council of India.
(2) Every such appeal shall be heard by the disciplinary committee of the Bar Council of India
which may pass such order 2[(including an order varying the punishment awarded by the
disciplinary committee of the State Bar Council)] thereon as it deems fit: 2[Provided that no
order of the disciplinary committee of the State Bar Council shall be varied by the disciplinary
committee of the Bar Council of India so as to prejudicially affect the person aggrieved without
giving him reasonable opportunity of being heard.]
Section 38 Appeal to the Supreme Court.
Any person aggrieved by an order made by the disciplinary committee of the Bar Council of
India under section 36 or section 37 1[or the Attorney-General of India or the Advocate-General
of the State concerned, as the case may be,] may within sixty days of the date on which the order
is communicated to him, prefer an appeal to the Supreme Court and the Supreme Court may pass
such order 1[(including an order varying the punishment awarded by the disciplinary committee
of the Bar Council of India)] thereon as it deems fit: 1[Provided that no order of the disciplinary
committee of the Bar Council of India shall be varied by the Supreme Court so as to prejudicially
affect the person aggrieved without giving him a reasonable opportunity of being heard.]

V.P.Kumaraveluv Bar Council of India &Ors.

(6 Page Case)
(1997) 4 SCC 266

111

Judges: S.C.Agrawal& Sujata V. Manohar JJ.

Civil Appeals arose from a common order passed by the disciplinary committee of the Bar
Council of India.
Facts:
V.P.Kumaravelu(Appellant) was appointed as City GovernmentPleader in all the civil courts
constituted in Madras other than the High Court of Madras. He was also allowed the assistance
of Office Staff.During the term of his office as a Government Pleader, two Complaints were filed
against him before the Bar Council of Tamil Nadu regarding his omission to prosecute two cases
resulting in ex-parte decrees being passed against the state and alleging that as a result of gross
negligenceon the part of the appellant the Govt. of Tamil Nadu had suffered substantial loss.
These complaints were later transferred to the Bar Council of India as the State Bar council could
not dispose of the cases within the prescribed time period.6
The first complaint was in respect of asuit7on the file of the city civil court at Madras in which
the Govt.Pleader was instructed to appear on behalf of the state Government.Memo of
appearance had been filed by the earlier Govt. Pleader. The appellant took charge during the
pendency of the suit. Fresh memo of appearance had not been filed by the appellant when he
took charge as Govt. Pleader.The suit was decreed ex-parte against the state. An application was
thereafter moved by the appellant to set aside the ex parte order. Court set aside the ex parte
order on the condition that the Govt. should pay some amount as to costs. However, the cost was
not deposited, and consequently the suit was decreed ex parte with costs.
6Section 36B(1) Advocates Act, 1961 : The disciplinary committee of a State Bar Council shall dispose
of the complaint received by it under section 35 expeditiously and in each case the proceedings shall be
concluded within a period of one year from the date of the receipt of the complaint or the date of initiation
of the proceedings at the instance of the State bar Council, as the case may be, failing which such
proceedings shall stand transferred to the Bar Council of India which may dispose of the same as if it
were a proceeding withdrawn for inquiry under sub-section (2) of section 36.
7The suit was filed by Travancore textiles pvt. Ltd. Against the state of Tamil Nadu relating to a lease of
land admeasuring 1240 sq. ft. forming part of a channel. The plaintiff had prayed for a declaration that the
annual rent and municipal taxes levied were illegal. There was also a prayer for refund and a declaration
that he need not pay any rent.
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The Second Complaint was in respect of a suit filed by an employee of the Department of
Education of Tamil Nadu challenging his Date of Birth. Summons and letters were forwarded to
and received by the office of the Govt. Pleader regarding the suit. However, memo of appearance
was not filed on behalf of the State. Ex-parte decree was passed in this suit as well.
The Appellant failed to attend to two cases and the client had to suffer ex parte decrees.
Contention of the appellant in both these complaints was that papers were not placed before him
by his office staff.
Accepting his contention BCI held office staff also responsible for misleading the appellant and
not informing him. Government also did not depute a responsible officer to attend the office of
the Govt. Pleader. However, appellants failure to attend to two cases cannot solely be the
responsibility of his office staff as the appellant being the head of the office has a responsibility
to make sure that the work is being properly and diligently done by the staff.
Appellant has been held guilty of constructive negligence by the Bar Council of India. BCI has
reprimanded him.The appeal before the Supreme Courtarose out of the common order passed by
the BCI in both these complaints.
Issue:
Whether Negligence of the appellant amount to professional misconduct?
Held:
Whether negligence will amount to professional misconduct or not will depend upon the facts
of each case. Gross negligence in the discharge of duties partakes of shades of delinquency and
would undoubtedly amount to professional misconduct. Similarly,conduct which amounts to
dereliction of duty by an advocate towards his client or towards his case would amount to
professional misconduct. But negligence without moral turpitude or delinquency may not amount
to professional misconduct8.

8In the case of In re A vakil (1926 ILR 49 Mad. 523), "negligence by itself is not professional
misconduct; into that offence there must enter the element of moral delinquency.
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In the present case, there is failure on the part of the appellant to discharge his dutiestowards his
client. This failure, however, is not deliberate. It is on account of heavy pressure of workcoupled
with lack of diligence on the part of his staff as well as on the part of his client in notsending a
responsible person with papers tothe officeof the Government pleader.However, whilethe
appellant cannot be held responsible for his client's failure to attend theoffice, the appellant
cannot shift the blame entirelyon hisstaff. It was hisresponsibility as the head of the office to
make surethat the work is properly attended to and the staff performs its functions properly and
diligently. Theappellant has, therefore, rightly been held guilty of negligence. However, inthe
absence of any moral turpitude or delinquency on his part, thefinding of the Bar council of India
that his conduct in the facts and circumstances of this case amounts to professional misconduct
cannot be sustained. The negligence on the part of the appellant in these circumstances cannot be
construed as professional misconduct.

Vijaya Singh v. Murarilal

AIR 1979 SC 1719: (1979) 4 SCC 758
The appellant in the case was charged for improperly certifying, the solvency of a surety for an
accused person, his client in a bailable offence. Rule 10, chapter 2 part six of the Rules of Bar
Council of India for Professional Misconduct was violated by the appellant. Suspension from
practice for one month was by trial tribunal and in appeal. Appeal was therefore preferred before
the Supreme Court for an admonitory sentence by the Court ex-misericordium.
The court on consideration pointed out that S.35 of the Advocates Act does permits reprimand
provided the ends of public justice are met by this leniency.
In the case of Moti Ram and Ors. v. State of M.P. [1969] 1 SCR 335, the Supreme Court taking
cognizance of the harassment9flowing from sureties being insisted upon before a person is
enlarged or bailed out, that the Court has the jurisdiction to release on his own bond without the
necessity of a surety.
9The court pointed out that there are some magistrates who are never satisfied about the
solvency of sureties except when the property of the surety is within their jurisdiction and
Revenue Officers have attested their worth. This harasses the poor and leads to corruption.

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The Rule with which we are concerned is a wholesome one in the sense that lawyers should not
misuse their role for making extra perquisites by standing surety for their clients or certifying the
solvency of such sureties. That is a bolt on the bar, an exploitative stain on the profession. At the
same time, the punishment is flexible in the sense that where the situation cries for the help of
the lawyer in favour of a client who is languishing in jail because his surety is being
unreasonably rejected, we may not frown upon a lawyer who helps out the person, not by false
pretences, but on the strength of factual certitude and proven inability to substantiate solvency.
The culpability of the advocate in the instant case is therefore to be decided on whether the
circumstances of the offence and offender are venal or venial. The court noted that the lawyer is
young, the offence is not tainted with turpitude and the surety whose solvency be certified was
found to be good. In the present case, the circumstances are amelioratory and hardly warrant
condign punishment.
It held that public admonition was an appropriate sentence in the present case and administered it
in open court to Appellant. Court reprimanded Appellant directed that Appellant should not
violate the norms of professional conduct and should uphold the purity and probity of the
profession generally, and, in particular, as spelt out in the rules framed by the Bar Council of
India.

Vikas Deshpande v. Bar council of India and others.

(2003) 1 SCC 384
Judges: V.N Khare, Ashok Bhan
No: of pages: 7
Facts: Ramrao chandobha jadav, vidhyadar ram rao, chandrakanth ramdeo jadhav were
prosecuted for committing murder of 6 persons. They requested the sessions court for
Some sympathetic lawyer who appears for an indigent accused may commiserate and
enquire whether the surety is solvent. If he is satisfied, on sure basis, that the surety is
sufficiently solvent, then he may salvage the freedom of the accused by certifying the
solvency of which he has satisfied himself. This would be a violation of Rule 10, chapter 2
part six of the Rules of Bar Council of India for Professional Misconduct. But it has to be
noted that the degree of "Culpability in a lawyer violating Rule 10, chapter 2, part six
depends on the total circumstances and the social milieu.

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appointment of an advocate as amicus curiae to defend them. The court appointed S.V
Ardhapurkar, advocate as amicus curiae to defend them. Sessions court after trial found
complainants guilty of offence and awarded them death penalty. On the same day advocate
contacted them in prison and obtained their thumb impression & signatures on vakalatnama to
prefer an appeal in high court of Bombay. The advocate told he would not be charging any fees
as he is doing this to make a name for himself. Some days after advocate meet the complainants
again and obtained their signatures on some stamp pares. The deed was not read to them and the
contents were not known to them. They signed and put their thumb impression in good faith. The
high court dismissed the appeal and confirmed the death sentence. The advocate later met
complainants in prison and told that he had sold their land on the basis of power of attorney
executed in hid favour by them authorizing him to sell the land. That he had appropriated that the
money received by him towards his fees. There after the complainant filed a complaint to the
state bar council on effect that the advocate has committed an act which amounts to professional
misconduct under section 35 of advocates act and for taking disciplinary action. State bar council
took suo motu cognizance and issued notice to advocate who filed reply that he had also engaged
some other lawyers and he was trying his level best to pay their fees of the said advocates by
selling the land of complainants. He further stated that on the request of complainants he
accepted vakalatnama on behalf of the complainants on an oral agreement that complainants
would pay an amount of rs.50000 as fees and authorize him to dispose their land to recover and
appropriate the money received from sale towards his fees. The complainant 2 was examined on
oath. He stated that he and his two other associates hadnt executed any power of attorney in
favor of advocate authorizing him to sell their land and appropriate the sale consideration
towards fees. He obtained their signatures on blank papers by misrepresenting the facts in order
to defraud them. As state bar council couldnt complete the proceedings in 1 year the complaint
was transferred to bar council of India under s.36 (b) of advocates act. Repeated notices were
send to advocate but he didnt appeared. He was proceeded ex parte the BCI found advocate
guilty of professional misconduct. It was found that the advocate failed to prove that the
complainants had executed the power of attorney in his favor. the disciplinary committee of BCI
found advocate guilty of gross professional misconduct under section 35 of advocates act and
directed the state bar council of Goa and Maharashtra to remove the name of advocate from the
roll of bar council of Maharashtra under section s.35 (3)(d) of act. Cost of 25,000 was imposed
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and made payable to heirs of complainants because by that time complainants had already been
put to death in execution of sentence imposed on them. A lien was created in property of
advocate to recovery of cost.
The advocate filed an appeal to Supreme Court against this decision. Dismissing the appeal SC
held: the appellant took advantage of the situation and obtained power of attorney on
misrepresentation & sold the property of complainants. He has committed a grave professional
misconduct. The court further said the relationship between an advocate and his client is of trust
and therefore sacred. Preservation of mutual trust between advocate and client is a must
otherwise prevalent judicial system in the country would collapse and fail.

Vinay Chandra Misra, In Re

[(1995) 2 SCC 584]

JUDGES: Kuldip Singh, J.S. Verma, P.B. Sawant, Jj.

Judgment delivered by Justice Sawant.
FACTS OF THE CASE:
A letter was addressed to acting Chief Justice by Justice S.K. Keshote of Allahabad HC
complaining of misbehavior by one Shri. V.C. Mishra who was appearing in a case before him
(M/s Bansal Forgings Ltd. v. U.P. Financial Corpn.).
Brief facts of that bullshit case: [all part of the letter]
M/s Bansal [B] took a loan from U.P. Fin. Corp. [UPFC] and defaulted in payment of
installment. UPFC went against B. B filed civil suit against UPFC and also applied for grant of
temporary injunction. UPFCs counsel suo motu took this up with trial. Trial court passed orderUPFC to not take seize Bs factory and B has to pay installment amount and furnish security for
disputed amt. by 31/1/94.
Appeal has been filed against this order contending that court had no jurisdiction. When the
judge asked V.C Misra [VCM] under which provision this order was passed, he went bat shit
crazy and screamed at the judge saying he had no jurisdiction to ask that question before
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threatening to get him impeached or transferred because of his influence and contacts. *Judge
claims:*In sum and substance it is a matter where except to abuse me of mother and sister, he
insulted me like anything. What VCM meant to convey was that admission and not arguments
are heard at this stage. And the judge goes on to say that since this judge heard cases on the basis
of merit and not admissions alone, he may have offended the lawyer. (also note that VCM was a
senior advocate and questions were raised as to the example hed set amongst the juniors).
[letter over]
Acting CJ forwarded letter to CJI who constituted a bench to hear the matter on 15/4/94, where
court took the view of it to be criminal contempt of court by VCM and issued notice to him to
show cause why contempt proceedings should not be initiated against him. VCM replied by an
affidavit and also an application to discharge the show cause. Alternatively, hold an inquiry into
this incident. He claims to deeply regret the remarks about the comments about all the contacts
and connections he had, but also that the facts and circumstances are such which made him make
such statements and that the judge was committing contempt of his own court. He then stated his
version of that same bullshit case:
B took a loan from UPFC. A controversy arose between them and B had to file a civil suit against
UPFC so there is no judicial sale of their assets. Injunction was granted and B had to furnish
security. B, being aggrieved by this order (which would require them t take out a mortgage),
filed a complaint against the portion requiring them to furnish security where VCM argued for B.
He goes on to state that the applicant (the judge in question) took charge of court proceedings not
giving the senior judge opportunity to intervene. He then enquired under what law the order was
passed to which VCM said O. 39 CPC. He then decided to set aside the entire order, and not just
the portion he had appealed against, because he held the view that the Lower Court was not
competent to pass such an order. To which VCM said that being the appellant, he had dominion
over the case and it could not be made just because he appealed to HC. To this, the judge lost his
temper and said hed set aside the order in toto, to which he lost his temper since his
professional and institutional sensitivity was deeply wounded and he said it isnt the practice if
the court to dismiss cases without hearing or upset judgments (or their part) not appealed against.
He admits to the exchange getting heated, wherein he mentioned transferring the judge but not
impeachment (in between a few witty remarks). He has gone on to say that the judge used
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threatening remarks (about goondaism), lowering the authority of the court. He also denied the
applicants claim of his reply about lack of jurisdiction to ask such a question, abusing him and
said that such conduct would be foolish.
He further contended that had he committed contempt, the senior judge or the applicant judge
himself would have initiated proceedings under Art. 129 of the Constitution, instead of going to
the acting CJI. He goes on to submit that under the compulsion of his institutional and
professional conscience and upholding the standards as expected by the bench and bar, to order
a thorough investigation into whether contempt was committed by him under Art 215 of the
constitution or by the judge under sec 16 of contempt of courts act.
He also made a complaint for not being given a copy of the letter given to the acting CJI and
cant gauge the rationale as to why the applicant did not initiate proceedings against him
immediately, instead of writing a letter. The formal enquiry was not for vindication but to ensure
that punishment is not meted out to outspoken lawyers, thus, keeping it a healthy democratic
judicial system. He also stated that he is moving an independent petition against the judge under
sec 16 of the contempt of courts act in the interest of fair play and justice.
Court gave him 4 weeks time to file an additional affidavit giving more facts and details, which
he did. The court heard VCM and his legal counsel, perused the counter and additional affidavit
and decided to initiate proceedings of criminal contempt against VCM, dismissing his notice for
discharge.
Justice Keshote forwarded his comments on the affidavit denying all allegations against him
following which MCV filed his unconditional written apology (where mainly, he boasts about
the posts held by him and how lawyers need to learn to be good sporting losers. :/) following
which he withdrew all his applications, counter affidavits and prayers made to the court.
The court stated that it may not by inclined to accept the apology and adjourned the case to a
later date so the counsels could argue the case on all points.
ISSUES RAISED:
1. According to him, a court of record can only take cognizance for contempt to itself, (as
worded in arts. 129 and 215 of the Cons.). hence, this action was not maintainable in the
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Supreme court, as the alleged contempt was against the Allahabad High Court (also a
court of record) which had vested in it power to punish for its contempt.
2. It was contended that it will be necessary to hold an inquiry into allegations made by the
judge by summoning him for examination by VCM to verify his version of the incident
as against that given by VCM.
3. Whether VCM is in fact guilty of contempt of court.
HELD:
1. Article 129 vests in this court the power to punish for contempt of itself in the courts
capacity as the highest court of record whose duty and responsibility it is to correct and
protect lower courts i.e. superintendence over lower courts. As held in [Delhi Judicial
Services Assn. v. State of Gujarat (1991) 4 SCC 406], the wordings of Article 129 and
215 are inclusive (including the power to punish for contempt of itself), which has been
interpreted by the courts to give it a wide scope. High Courts have inherent power under
Art. 215 to punish for a lower courts contempt (even in the absence of express provision
in the Act). The same should apply to the SC. Thus, it was held that SC had the power to
initiate and entertain proceedings of contempt in subordinate courts.
2. There is nothing unusual in the course taken be the learned judge by writing a letter
instead of initiating proceedings because he probably didnt want to be a prosecutor,
witness and judge in the same matter. The procedure adopted was summary and VCMs
interests were adequately safeguarded by issuing notice, allowing him to file a counter
and supplementary affidavit and produce other material. But giving him the right to
question the judge before whom contempt was committed destroys the jurisdiction of the
court to adopt proceeding for this conduct. Section 14(3) of the Contempt of Courts Act,
1971 states that it is not necessary for the judge or judges, in the presence of whom the
offence is committed, to appear as witness. His statement before CJI is enough evidence.
3. Contempt of court is defined as an act or omission calculated to interfere with the
administration of justice. From the facts, it is evident that the allegation against VCM, if
true, amounts to criminal contempt [ criminal contempt means the publication (whether
by words, spoken or written, or by signs, or by visible representation, or otherwise) of
any matter or the doing of any other act whatsoever which
(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any
court; or
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(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial
proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the
administration of justice in any other manner;]
Instead of filing evidence to back his story up, the advocate tendered a written apology.
After hearing both sides, it is evident that the lawyer did try to insult the judge (in his
manner, tone, demeanor and even in his version of the case by saying that the judge took
charge of the proceedings), he admits to having lost his temper. Such conduct brings
disrespect and disrepute to the entire judicial system and shakes the confidence of the
people in the judiciary to deliver free and fair justice. If the judiciary is to perform its
duty effectively, the dignity and authority of courts has to be respected and protected.
Satisfied that VCM did indulge in the said acts, he had to undergo simple imprisonment
for a period of 6 weeks and was suspended from practicing for a period of 3 years.

Srimathi And Others vs Union Of India And Others

It was held that there is no provision to enable the bar council to deal with the dispute between the advocate and
the client to compensate him for the damages and refund the money.
Issue: to reconsider constitutionality of section 3 of Consumer Protection ACT; so as to excuse the service
provided by advocates from the ambit of the act
Facts:

The petitioner in these cases are practising advocates. Claims have been made against them by
certain persons who are impleaded as respodents in the respective cases, before the Consumer
Disputes Redressal Forum. In some cases it is before the District Forum and in some cases it is
before the State Forum.
The petitioner take the contention that advocates are governed only by advocates act, and they
are not answerable for claims under consumer protection act
They take the contention that no provision under the consumer protection act has the scope to
include the services provided by an advocate.
Also the definition of consumer would not include a client who has availed services from an
advocate.
According to the petitioners, an advocate in a particular case, can be made to defend a proceeding
1. under the Advocates Act before the Bar Council,
2. under the Criminal Law before the Criminal Courts,
3. before the Civil Court under the Civil Law, and
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4. before the Consumer Redressal Forum under the Consumer Protection Act.
It is argued that when there is a special enactment governing the advocates, viz., Advocates Act,
he shall not be made to face claims under the different Acts, referred to above.
It is stated that the provision contained in Section 3 of the Consumer Protection Act, by which,
the provisions of the said Act are declared to be in addition to and not in derogation of the
provisions of any other law for the time being runs counter to the objects of the Act.
The prayer in these cases is to declare Section 3 of the Consumer Protection Act as
unconstitutional, being opposed to the objects of the Act.
Section 3 of the Act says is that the provisions of the Act shall be in addition to and not in
derogation of the provisions of any other law. In other words, the Act does not have the effect of
overriding other enactments with reference to matters dealt with in the Act. The section only
provides that it will be open to any person to claim the benefits of this Act and also avail himself
of the provisions of other enactments if there is no inconsistency or conflict and if he is not barred
otherwise, by any other principle of law, like estoppel or election.
Even if S 3 is made unconstitutional, the other sections remain intact and if the service provided
by an advocate to the client falls under the purview of consumer act, the advocate can be taken to
the consumer redressal forum.
The writ was dismissed. The contentions of the petitioners were negatived. And further it was
directed that in all petitions against whom proceedings have taken before the Consumer Redressal
Forum, to raise all defences available to them in law excepting the question that the Advocates are
not covered by the provisions of the Consumer Redressal Act.

Further, in the matter of Srimathi v. Union of India, the services performed by advocates were held to be
services within the ambit of Section 2(1)(o) of the Consumer Protection Act, 1986, and it was laid down that it
is open for aggrieved clients to institute proceedings against the advocates in the Consumer Redressal Forum.
This would include actions for negligence. But this too, does not resolve the crisis of relitigation, giving rise to
conflicting judgments by courts of competent jurisdiction.

Dinesh Chandra Pandey v. High Court of Madhya

Pradesh and Anr.
CITATION: (2010) 11 SCC 500Pages 14
Corum: B.S. Chauhan and Swatanter Kumar, JJ.
Facts: Dinesh Chandra Pandey, the appellant herein, was appointed to the post of Civil Judge in the M.P.
Judicial Service (Class II) on 27 th January, 1982 and in September, on completion of the training period,
he joined as Civil Judge, Dhamtari. During his tenure as Civil Judge, certain irregularities were noticed by
the competent authority and in 1988, a charge-sheet was served upon him, primarily, on the ground that
he was possessed of disproportionate money/assets to his known sources of income. He was served with a
charge sheet containing two articles of charges. The allegations were denied by him and he submitted that

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it is out of this agricultural income(from lands he owns) that he has been depositing amounts in the bank
and has not committed any violation of service regulations or other offence which would attract
disciplinary action against him. Besides appointing an enquiry officer to conduct a regular departmental
enquiry, the High Court also appointed an Addl. Judge as Presenting Officer. Meanwhile, the appellant
made an application for permission to engage a legal practitioner to assist him in the departmental enquiry
but the same was declined by the High Court. The appellant however, participated in the enquiry and the
enquiry officer submitted his report which returned the finding of guilt against the appellant.Disciplinary
authority, after receiving the said report, issued show cause notice to the appellant, to which the latter
submitted a detailed reply. However, the authority decided that the stand taken by the appellant was not
satisfactory and consequently, imposed the punishment of removal from service. The appeals preferred by
the appellant against this order before the Governor and later, vide a Writ Petition in the High Court were
both dismissed. Still dissatisfied with the judgment of the Court, a Letter Patent Appeal was filed which
also met the same fate and was dismissed by the Division Bench of the Madhya Pradesh High Court. The
legality and correctness of this order was again challenged by the appellant in the present appeal filed at
the Supreme Court under Article136 of the Constitution.
Contentions: The challenge to the impugned order is, primarily, on two grounds.
Firstly, the appellant had asked for assistance of a legal practitioner which had been unfairly
denied to him.
Secondly, the enquiry officer as well as the High Court have not appreciated the evidence in its
proper perspective and has failed to accept plausible defence raised by the appellant in regard to
deposit of money in the bank.
Held: No merit was found in the appeal and the case was dismissed with an order as to costs.
To deal with each of the contentions:
Contention 1: The request of the appellant has been rightly rejected by the disciplinary authority. The
appellant could have asked for appointment of any colleague whose assistance he wanted to take and who
would have been as well qualified and experienced as the presenting officer. It will be entirely uncalled
for that an Additional Judge should be termed as a legal practitioner and, therefore, vesting in the
appellant a right to engage a legal practitioner or an advocate for defending him in the departmental
proceedings.
Furthermore, the appellant took no steps whatsoever to challenge the order of the Disciplinary Authority
declining assistance of an advocate and on the contrary, he participated without any further protest in the
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entire departmental enquiry and raised no objections. The Enquiry Officer conducted the proceedings in a
just, fair manner and in accordance with rules and there is no challenge to that aspect of the matter. In the
application, the appellant had stated "that the complainant neither has necessary experience nor the
required skill to handle his defence in such circumstances." This statement ex facie is not correct. Charge
against the appellant was not of a very complicated nature, which a person having qualification and
experience of the appellant would not be able to defend. In these circumstances, it was held that no
prejudice whatsoever has been caused to the interest of the delinquent officer.
Contention 2: Coming to the other aspect of the case, that there is perversity in appreciation of the
evidence in the impugned judgment under appeal, it is to be noticed that the finding of facts arrived at by
the enquiry officer was not interfered with by the learned single Judge as well as the Division Bench of
the Madhya Pradesh High Court, it is hardly permissible for this Court to disturb such findings of fact in
exercise of its jurisdiction under Article 136 of the Constitution of India. Infact the appellant could have
produced witnesses and supplemented his case with documentary evidence during the enquiry and in his
reply filed. Non-examination of witnesses and non-production of necessary documents must lead to draw
an adverse inference against the appellant. Moreover, the conduct of the appellant during the stages of
enquiry by itself shows that the appellant has not approached the Court with clean hands and has not
disclosed true facts which were known to him alone. In the departmental proceedings, he took incorrect
defence contrary to his return and failed to discharge the onus placed upon him. It was expected of the
appellant to disclose all true and correct information and documents in his power and possession before
the Enquiry Officer. It was not required of him to with-hold relevant material and take such a defence
which could not be substantiated during the course of departmental enquiry. Having failed to produce
relevant documentary evidence as well as examine the witnesses, the appellant cannot argue that the
Disciplinary Authority or the Courts have not appreciated the evidence in its correct perspective.

ShrimatiJamilabai Abdul Kadar v

ShankarlalGulabchand and others
(1975) 2 SCC 609
Bench: Justice Krishna Iyer
Headnote of sorts - this case was a civil appeal filed before the Supreme Court. The
essential question to be decided by the court was whether a pleader could enter
into a compromise without the consent of the client. In this regard, does the fact
that the pleader in question has not chosen to enrol himself under the Advocates
Act have any bearing on his duties to consult his client.

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Summary of the actual judgement

In 1964 the landlords (Respondents) brought an action for eviction against the
tenants (Appellants) under the rent control laws in Maharashtra. The case was
finally decided by the Court in 1965 and recorded a compromise entered into by the
pleaderof the tenants stating that the tenants would give vacant possession of the
property within 18 months. The tenant however wished to avoid eviction completely
and after a series of miscellaneous suits approached the SC stating that he was
not bound by a compromise entered into by his pleader without his authority. The
counsel for the Appellant stated that the pleader had no authority to agree to this
compromise especially because he did obtain consent as an advocate and he was a
mere pleader. At the time of the actual compromise it was not the tenant but his
agent who was present. The trial Court and the District Court both decided that the
tenant had not given any specific instructions not to compromise and therefore
there was nothing held against the pleader in these Courts. The HC therefore
dismissed the suit in the same manner. There is no statutory provision directly
addressing this issue. Section 29 of the Advocates Act provides for categories of
legal professionals including pleaders, advocates, etc. The pleader in question was
not registered under the Advocates Act but was registered under the Bombay
Pleaders Act, 1920. However, pleaders who chose not to enrol under the new
Advocates Act of 1961 will continue to enjoy the same rights as under the Bombay
leaders Act. The Court stated that there is merit in the suggestion that even if a
pleader does not get himself enrolled, their very eligibility to be enrolled entails the
same statutory responsibilities towards client and court. This was substantiated by a
reference to CPC Order III Rule 1 and Rule 4(1) which essentially state that a pleader
may practice in any court. Thus furthering the argument that different categories of
legal practitioners cannot be treated differently as far as their duties to their clients
are concerned. The Court after examining several English decisions stated that the
counsel had the general power to settle the dispute on his clients behalf in order to
protect the clients interest. After examining decisions from various Indian Courts,
the Court stated that a legal practitioner was not a mere agent of the client. The
legal skill that the lawyer is expected to exhibit may be beyond the understanding
of the client and it is for this reason that the lawyer has a power to act. Therefore in
the absence of speaking instructions an advocate has the power to settle the suit in
the interest of the client only if this is done bona fide, therefore safeguarding their
power to act. This power is exceeded if the matter is not settled in good faith or if
the lawyer has agreed to compromise matters that are extraneous to the suit.
Thus, it was finally held that:
The pleader has actual, though implied authority to enter into a compromise even
without specific instructions, subject to two conditions that he does so in good
faith to protect the interests of his client and that he has if he had time and
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opportunity he consulted his client. Thus, in this case, the Court felt that the pleader
had acted with the adequate knowledge and encouragement of his client and there
is no liability on his part.

Ram Bharosey Agarwal v Harswarup Maheshwari(1976) 3 SCC 435

Appellant Adv. Ram Bharose was engaged by respondent Har Swarup Maheshwari on behalf of
his daughter to pursue her application against her husband Jai Narain. Case was decided in her
favour and maintenance allowance granted. When order was put into execution Harswarup
appointed another advocate to prosecute the execution application. Jai Narayans property
attached and his father claimed that its his property. Application to that effect was alleged to
have been filed by Ram Bharose(this is the first charge against appellant). And also, meanwhile
Jai Narayan filed an application for reconsideration of maintenance order and examined 3
witnesses. Har swarup instituted case of defamation against these witnesses and appellant Ram
Bharosey was engaged in those proceedings also (second charge against appellant). The third
allegation is that appellant wrote a letter to another advocate in Allahabad HC to get an appeal
dismissed even though there was no instruction from the client and it was detrimental to the
client.
Bar council of UP framed 4 issues including the above mentioned 3 and a new issue of whether
appellant was guilty of professional misconduct. Bar Council held that appellant is guilty of
professional misconduct suspended him from practice for 2 years and awarded Rs. 100 as cost to
complainant without giving any proper reason in support of its findings and also all issues were
examined together even though they raised different questions. Appeal (by bharosey) went to
BCI. BCI affirmed the findings of U.P Bar Council regarding the writing of letter but held that
appellant is not guilty of misconduct with respect to other charges. Suspension got reduced to 3
months and cost of Rs. 100 to be paid to complainant.
Appeal to SC. Arguments by appellant counsel Mr. Sen were; the letter was not conclusively
proved to be written by appellant (expert did not compare the letter with his handwriting), no
opportunity was given to cross examine a witness who was examined by disciplinary committee
with respect to allegations against appellant (expert was supposed to compare the signature on
the letter allegedly written by Barosey with the one written to this witness), and finally, he
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contended that according to S. 9 of Advocates act the number of members of disciplinary

committee is 3 and on the date on which appellants defence was closed and arguments were
taken, the committee had only 2 members. The respondents council argued that according to
S.13 of the act no act done by the Bar Council or committee could be called in question on the
ground merely of the existence of vacancy in, or any defect in the constitution of the council or
committees as the case maybe.
SC Decision:
Court looked into these contentions and said that there is justification for the argument of
appellants counsel that serious illegality was committed by bar council of U.P. Regarding the
third issue involving S.9 and S.13 court said that section 13 is inapplicable to present
controversy, since it cannot be said that there was any vacancy. It is nobodys case that any of the
three members of the committee ceased to be members during the course of proceedings or that
there was any defect in constitution of committee or that it was permissible to function with two
members only. Court said that these illegalities seriously prejudiced the appellants defence and
court observed that it is surprising that such illegalities have been committed and court also
observed that it was difficult to overlook the contention of appellants council that this happened
because of the reason that bar council was hot bed of politic.
Appeal allowed.BCI order dismissed.

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