In Re: Vinay Chandra Mishra: Case of Criminal Contempt of the Court

 

Vande Matram! Here a case regarding professional misconduct of an advocate is discussed.

In Re: Vinay Chandra Mishra

Equivalent citations: AIR 1995 SC 2348, 1995 (1) ALT Cri 674, 1995 CriLJ 3994, (1995) 2 GLR 992, JT 1995 (2) SC 587, 1995 (2) SCALE 200, (1995) 2 SCC 584, 1995 2 SCR 638, 1995 (2) UJ 93 SC

Bench: K S Verma, P Sawant

Acts: Article 129, 215 of Constitution of India, Contempt of Courts Act, 1971, Advocates Act, 1961, Bar Council of India Rules, Code of Civil Procedure

Facts of the case:

1) Letter of Justice S. K. Keshote of the Allahabad High Court to Acting Chief Justice of that Court: As per this letter:

a) V.C. Misra had misbehaved with the learned judge when he was sitting with Justice Anshuman Singh.

b) The matter of M/s. Bansal Forgings Ltd. v. U.P.F. Corp. was filed by S. V. Misra. The said case was initiated because Bansal Forgings made default in payment of instalment of the loan taken from UPF Corp. Trial Court passed an order that the company shall pay the amount of instalment and it will furnish also security for the disputed amount.

c) To challenge the order of trial court, the said matter was filed before the high court. During argument learned judge asked the question to Shri Misra under which provision this order has been passed. On asking the question Misra started shouting and threatening the Judge alongwith abusive language.

d) Mr. V C Misra was senior advocate, President of Bar and chairman of Bar Council of India. Justice S K Keshote was the one who deciding the cases on the merits.

e) The Acting Chief justice Shri V.K. Khanna forwarded the said letter to the then Chief Justice of India and on the basis of that letter Chief Justice of India constituted this special bench to hear that matter. The said matter is violation of duties towards court by an advocate.

Pleadings of Contmner:

1) In this case Adv V C Misra is contmener and he filed his reply by affidavit and an application seeking discharge of show cause notice.

2) As per contemner, in the matter of Bansal forgings, The Civil Court granted the injunction against putting the assets to sale, but at the same time directed furnishing security for the amount due. Being aggrieved by the condition of furnishing security, Bansal forgings approached High Court against the portion of the order directing furnishing of security. As per contemner the order was passed under various rules of Order 39 of CPC. So the applicant judge was going to set aside the entire order, against a portion which was challenged by contemner, because in view the Judge, the Lower Court was not competent to pass such an order as Order 39 did not apply to the facts. It was not the practice in this Court to dismiss cases without hearing or to upset judgments or portions of judgments, which have not been appealed against. But still the applicant Judge in this matter directed the stenographer to write an order to set aside the judgment of lower court completely. But on the directions of Hon'ble Justice Anshuman Sing, the said matter to be listed before some other Bench.

3) As per contmener the applicant judge never wanted to be posted in Allahabad High Court. Contemner denied that he had not questioned the jurisdiction of the Court to ask any question in any matter. Also he denied that he abused the applicant judge. He is having practice of 35 years and is having responsible status as member of Bar. Senior Judge has to initiate the proceedings under Article 129 of Constitution on India. But the proceedings were initiated by applicant judge which is violation of statute. As per contemner the language used by applicant judge amounted to contempt by a Judge punishable under Section 16 of the Contempt of Courts Act, 1971 as well as under Article 215 of Constitution of India. Contemner further states that he had took a fearless stand, ascertain his right to audience and for the same he is being roughed by the applicant judge. Any punishment to an outspoken lawyer will be a threat to healthy democratic judicial system. He had not been provided the copy of letter of applicant Judge. In short contmener pleaded that he had not gone beyond the legitimate limits of fearless, honest and independent obligations of an advocate and it was Justice Keshote himself who had lost his temper and extended threats to him which was such as would be punishable under Section 16 of the Contempt of Courts Act, 1971.

4) Oswald’s Contempt of Court, III Edition, By Robertson: An advocate is at liberty to combat and contest strongly any adverse views of the Judge or Judges expressed on the case during its argument, to object to and protest against any course which the Judge may take and which the advocate thinks irregular or detrimental to the interests of his client. An advocate ought to be allowed freedom and latitude both in speech and in the conduct of his client's case.

5) Contemner filed another petition under Section 16 of the Contempt of Courts Act, 1971.

6) Contemner was given a time of 4 weeks to file the additional reply in which he objected for the jurisdiction by the Court to punish for an act of contempt committed in respect of another Court of record which is invested with identical and independent power for punishing for contempt of itself. In his view, the matter be placed before the Constitution Bench and that notice be issued to the Attorney General of India and all the Advocate General of the States. Also, the statement of Justice Anshuman Singh who was the senior Judge on the Bench before which the incident took place, would also be necessary.

7) In next hearing contemner filed an unconditional apology. As per this apology he had resigned from the post of the President of the High Court Bar Association and from the post of the Chairman of the Bar Council of India. Both are elective posts which show the respect of his colleagues towards him. Further through this apology he withdraw all his applications, petitions, counter affidavits, and prayers made to the court earlier to the presented regarding the matter. And the matter will be rest with this apology and the supporting statements for this.

Pleadings of Applicant Judge:

1) Applicant judge denied that he initiated the proceedings of the case. He questioned the contemner as he was member of bench and having right to question the counsel. In response contemner shouted on the judge and contemner said many more things as already mentioned by him in his letter. Contemner created a scene which made it difficult to continue the court proceedings and he requested his learned brother on the Bench to list that case before another Bench and to retire to the chamber.

2) For the allegation of setting aside the entire order of lower court the applicant judge submitted that he neither made any such statement nor conveyed to the contemner as suggested by him. It was a case where the contemner did not permit the court proceedings to be proceeded and both the Judges ultimately had to retire to the chambers. It was a case where the contemner lost his temper on the question being put to him. In a Divisional Bench, it is the senior member who dictates order/judgments. Applicant judge denied regarding all the dialogues which are written in counter affidavit as pronounced by him regarding his posting and other things.

Observations and opinion of Bench:

1) Prima facie it is case of criminal contempt of court committed by Mr. V C Misra (contemner) and a notice is issued against him to show cause why contempt proceedings be not initiated against him. Solicitor General of India was requested to assist the Court in the matter.

2) After going through affidavit and application of contmener, hearing him and his counsel in person, perusing his counter affidavit Court find that it was a fit case where criminal contempt proceedings be initiated against the contemner. Court directed to initiate the proceedings against contemner and gave him fair chance to submit any other material regarding the matter including affidavit of any other person. Court dismissed his application for discharge of notice.

3) Contemner desired to withdraw his second petition under Section 16 of Contempt of Courts Act, 1971. Court dismissed the same.

4) Regarding the apology of the contemner the Court stated that it may not be inclined to accept the apology as tendered.

5) State Bar Council in its statement raised objection that Article 129 vests this Court with the power to punish only for the contempt of itself and not of the High Courts. Secondly, the High Court is also another court of record vested with identical and independent power of punishing for contempt of itself. The contention ignores that the Supreme Court is the highest Court of record, and charged with the duties and responsibilities of correcting the lower courts and tribunals and of protecting them from those whose misconduct tends to prevent the due performance of their duties. As per Article 129 and 215, both the Supreme court as well as High Courts respectively are courts of record having powers to punish for contempt including the power to punish for contempt of itself.

6) Court rejected the request of contemner to refer the matter to larger bench. Because contemner was not able to point out any specific infirmity in the said decision that the matter being heard by this Bench – smaller bench of the Court.

7) Regarding the request to cross examine the learned judges of the bench of high court: The learned judge or the Bench could have itself taken action for the offence on the spot. Instead, the learned Judge probably thought that it would not be proper to be a prosecutor, a witness and the judge himself in the matter and decided to report the incident to the learned Acting Chief Justice of his Court. Dragging out the contempt proceedings means a lengthy interruption to the main proceedings which paralyses the court for a time and indirectly impedes the speed and efficiency with which justice is administered.

8) The statement of the learned Judge has already been furnished to the contemner and he has replied to the same. We have, therefore, to proceed by treating the statement of the learned Judge and the affidavits filed by the contemner and the reply given by the learned Judge to the said affidavits, as evidence in the case.

9) Definition of Criminal Contempt: "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; or [ii] prejudices, or interferes or tends to interfere with, the due course of any judicial proceedings; or [iii] interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

10) In this case, it is not the heat generated in the arguments but the language used, the tone and the manner in which it is expressed and the intention behind using it which determine whether it was calculated to insult, show disrespect, to overbear and overawe the court and to threaten and obstruct the course of justice. There is every reason that the contemner had undoubtedly tried to browbeat, threaten, insult and show disrespect personally to the learned Judge.

11) It is obvious that the contemner was incensed by the fact that the learned Judge was asking the questions to him. This is clear from his contention that the learned Judge being a junior member of the Bench, was not supposed to ask him any question and if any questions were to be asked, he had to ask them through the senior member of the Bench because that was the convention of the Court. We are not aware of any such convention in any court at least in this country. Assuming that there is such a convention, it is for the learned Judges forming the Bench to observe it inter se. No lawyer or a third party can have any right or say in the matter and can make either an issue of it or refuse to answer the questions on that ground. The leaned Judge's version, therefore, appear to be correct when he states that the contemner lost his temper when he started asking him questions.

12) Cases are won and lost in the court daily. One or the other side is bound to lose. The remedy of the losing lawyer or the litigant is to prefer an appeal against the decision and not to indulge in a running battle of words with the court.

13) If the judiciary is to perform its duties and functions effectively and true to the spirit with which they are sacredly entrusted to it, the dignity and authority of the courts have to be respected and protected at all costs.

Power to punish:

1) As per Section 35 and 36 of Advocates Act, 1961, the power to punish a lawyer is vested in Disciplinary Committee of bar councils.

2) The Supreme Court is denuded of its power to impose such punishment both under Articles 129 and 142 of the Constitution. In support of this contention, reliance was placed on the observations of the majority of this Court in Prem Chand Garg v. Excise Commission, U.P., Allahabad [1963] Supp. 1 S.C.R. 885 relating to the powers of this Court under Article 142 which are as follows: “In this connection, it may be pertinent to point out that the wide powers which are given to this Court for doing complete justice between the parties, can be used by this Court for instance, in adding parties to the proceedings pending before it, or in admitting additional evidence, or in remanding the case, or in allowing an new point to be taken for the first time. It is plain that in exercising these and similar other powers, this Court would not be bound by the relevant provisions of procedure if it is satisfied that a departure from the said procedure is necessary to do complete justice between the parties.”

3) Any prohibition or restriction contained in ordinary laws cannot act as a limitation on the constitutional power of this Court. Once this Court is in seisin of a matter before it, it has power to issue any order or direction to do complete justice in the matter, as opined in  Harbans Singh v. State of U.P. Also in many judgments of Supreme Court it was observed that statutory provisions cannot override the constitutional provisions.

4) This Court while exercising its power under Article 142(1) would not even be entitled to reprimand the Advocate for his professional misconduct which includes exhibition of disrespect to the Court as per Rule 2 of Section 1 of Chapter II of Part VI of the Bar Council of India Rules made under the Advocates Act, which is also a contempt of court, since the reprimand of the advocate is a punishment which the disciplinary committees of the State Bar Council and of the Bar Council of India are authorised to administer under Section 35 of the Advocates Act. The disciplinary jurisdiction of the State Bar Council and the Bar Council of India to take action for professional misconduct is different from the jurisdiction of the courts to take action against the advocates for the contempt of court.

5) When the Constitution vests this Court with a special and specific power to take action for contempt not only of itself but of the lower courts and tribunals, for discharging its constitutional obligations as the highest custodian of justice in the land, that power is obviously coupled with a duty to protect all the limbs of the administration of justice from those whose actions create interference with or obstruction to the course of justice.

Punishment:

1) Court found the contemner guilty of the offence of the criminal contempt of the Court for having interfered with and obstructed the course of justice by trying to threaten, overawe and overbear the court by using insulting, disrespectful and threatening language, and convict him of the said offence. As he is senior advocate and held various posts in bar, an exemplary punishment has to be meted out to him.

2) The contemner shall stand suspended from practising as an advocate for a period of three years from today with the consequence that all elective and nominated offices/posts at presents held by him in his capacity as an advocate, shall stand vacated by him forthwith.

3) The contemner is sentenced to undergo simple imprisonment for a period of six weeks. However, in the circumstances of the case, the sentence will remain suspended for a period of four years and may be activated in case the contemner is convicted for any other offence of contempt of court within the said period.

Conclusion:

A lawyer has to be a gentlemen first. His most valuable asset is the respect and goodwill he enjoys among his colleagues and in the Court. If the judiciary is to perform its duties and functions effectively and true to the spirit with which they are sacredly entrusted to it, the dignity and authority of the courts have to be respected and protected at all costs.

Though Advocates Act 1961 empowers only Disciplinary Committee to punish an advocate, jurisdiction of Supreme Court to punish can not be restricted by ordinary laws. As under Article 32 and 136 of Constitution the Supreme Court is conferred for proper administration of justice.

Criminal contempt of the Court may cause imprisonment alongwith suspension from practice.

To know the references and to read more articles related to Professional ethics and professional accounting system please visit this page Legal Profession: Professional Ethics and Professional accounting system.

Thanks for reading till the end. Please share this with all legal professionals.

An Advocate vs Bar Council Of India And Anr.

 

Vande Matram! Here a case regarding professional misconduct of an advocate is discussed.

An Advocate vs Bar Council Of India And Anr.

Equivalent citations: AIR 1989 SC 245, JT 1988 (4) SC 376, 1988 (2) SCALE 1362, 1989 Supp (2) SCC 25, 1988 Supp 3 SCR 361

Bench: M Thakkar, B Ray

Act: Advocates Act, 1961, Part VII of BCI Rules.

Facts of the case:

1) Gautam Chand introduced appellant to Respondent no. 1. Respondent no. 1 had entrusted the suit of recovery of money to file in the Court of Additional City Civil Judge to appellant. Respondent no. 2 was junior of the appellant was practising along with him at his office at the material time. So the suit of recovery of money was entrusted to the Respondent no. 2 by appellant. At the point of time when the suit was withdrawn, respondent No. 2 was practising on his own having set up his separate office. On the docket of the brief pertaining to the suit, the appellant made an endorsement giving instructions to withdraw the suit as settled and brief was given to Respondent no. 2.

2) Allegations on appellant: The dispute in the suit was not settled at all and the respondent no. 2 without the knowledge and without the instructions of the Respondent no. 1 has filed a memo stating that the matter is settled out of Court and got the suit dismissed. The Respondent no. 1 has not received either the suit amount or the refund of court fee and he is not aware of the dismissal of the suit as settled out of court. Respondent no. 2 and appellant did not informed the Respondent no. 1 regarding the dates of hearing of the suit. When Respondent no. 1 enquired about the date of hearing the respondent no. 2 and appellant informed him that his presence is not required, so Respondent no. 1 did not attend the Court hearing on that day. When Respondent no. 1 himself went to the Court and verified he found that the suit is dismissed as settled out of court and latter learnt that even the half of the institution court fee is also taken by the respondent no. 2 within 10 days.

3) Appellant’s pleading: a) Gautam was client of appellant since long time. Gautam had business with Respondent no. 1 and one more person Anantraju.

b) Gautam executed an agreement of sell with Anantraju and gave him money for the same. Anantraju did not executed the sale deed within the stipulated period and extended period. So Gautam approached appellant for legal advice.

c) Appellant issued a notice to Anantraju to execute the sale deed .

d) Respondent no. 2 was acting as an advocate for respondent no. 1 and on the same day Respondent no. 2 issued a notice to Anantraju demanding certain amounts due on the three self bearer cheques issued by Anantaraju in course of their mutual transactions.

e) Gautam instructed appellant and Respondent no. 2 that he was in possession of the said cheques issued by Anantaraju and that no amount was actually due from Anantaraju to the Respondent no. 1.

f) Respondent no. 2 on behalf of Respondent no. 1 instituted a suit of recovery from Anantaraju on the basis of the aforesaid cheques. As property was fact of agreement to sale between Anantraju and complainant, a public notice was published in this regard on instructions of Respondent no. 1. The Court accepted his submissions and passed the order of attachment.

g) Anantraju and Gautam executed the sale deed during the subsistence of the order of attachment. Consistently, the appellant had reasons to believe the information of settlement of dispute conveyed by the three parties together. Appellant conveyed information of the settlement of dispute by his note made on the docket to Respondent no. 2 and Gautam delivered the papers to Respondent no. 2.

h) Then Respondent no. 2 filed a handwritten memo of withdrawal of suit and Court dismissed the case.

i) Respondent no. 1 gained knowledge of dismissal of suit and did not met appellant, did not immediately applied for the restoration of suit. An application for restoration was filed on the last date of limitation which is pending in the City Civil court.

Observations of Supreme Court:

1) No appropriate specific charge was framed against appellant. It would be extremely difficult for an Advocate facing a disciplinary proceeding to effectively defend himself in the absence of a charge framed as a result of application of mind to the allegations and to the question as regards what particular elements constituted a specified head of professional misconduct.

2) The parties would then become aware of the real nature and content of the matters in issue and would come to know (a) on whom the burden rests (b) what evidence should be adduced to prove or disprove any matter (c) to what end cross examination and evidence in rebuttal should be directed.

3) In substance the charge against the appellant was that he had withdrawn a suit as settled without the instructions from the complainant. The version of the appellant was that the suit which had been withdrawn had been instituted in a particular set of circumstances and that the Respondent no. 1 had been introduced to the appellant for purposes of the institution of the suit by an old client Gautam. Decision to file a suit on behalf of Respondent no. 1 against Anantraju was taken in the presence of Gautam. But in fact in the whole matter Respondent no. 1 is the nominee of Gautam and he himself had no real claim on his own.

4) It was admitted by Respondent no. 1 that he knew the defendant against whom he had filed the suit for recovery of money and that he did not know the defendant intimately or closely. He also admitted that the cheques used to be passed in favour of the party and that he was not entitled to the entire amount. He used to get only commission.

5) Here it has to be mentioned that the appellant had acted in an open manner in the sense that he had in his own hand made endorsement for withdrawing the suit as settled and sent the brief to his junior colleague. If the appellant had any oblique motive or dishonest intention, he would not have made the endorsement in his own hand.

6) 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 impugned order passed by the Disciplinary Committee, therefore cannot be sustained.

7) Since Court do not consider it appropriate to examine the matter on merits without the benefit of the finding recorded by the Disciplinary Committee of the apex judicial body of the legal profession, Court consider it appropriate to remit the matter back to the Disciplinary Committee.

8) This matter is one of the ethics of the profession which the law has entrusted to the Bar Council of India. It is their opinion of a case which must receive due weight.

9) Bar Council of India must have an opportunity to examine the very vexed and sensitive question which has arisen in the present matter with utmost care and consideration, the question being of great importance for the entire profession.

10) Court is not aware of any other matter where the apex body of the profession was required to consider whether the bona fide act of an Advocate who in good faith acted under the instructions of someone closely connected with his client and entertained a bona fide belief that the instructions were being given under the authority of his client, would be guilty of misconduct.

11) This question will have to be determined in the light of the evidence and the surrounding circumstances taking into account the doctrine of benefit of doubt and the need to record a finding only upon being satisfied beyond reasonable doubt.

12) The Advocate concerned was suspended from practice for four years. The Bar Council had dismissed the appeal. Supreme Court had dismissed the Special Leave Petition summarily. And yet the whole matter was reviewed at the instance of the Bar Council and this Court was persuaded to grant the review.

Decision of Court:

Court allowed the appeal and

1) Set aside the order of Bar Council and remit the matter to Bar Council of India.

2) It will not be open to the complainant to amend the complaint or to add any further allegation.

3) The evidence already recorded will continue to form part of the record and it will be open to the Bar Council of India to hear the matter afresh on the same evidence.

Conclusion:

No advocate can withdraw a suit without knowledge of his client. If he does so it will account a professional misconduct.

To know the references and to read more articles related to Professional ethics and professional accounting system please visit this page Legal Profession: Professional Ethics and Professional accounting system.

Thanks for reading till the end. Please share this with all legal professionals.

Chandra Shekhar Soni vs Bar Council Of Rajasthan And Ors.

 

Vande Matram! Here a case regarding the professional misconduct of an advocate is discussed.

Chandra Shekhar Soni vs Bar Council Of Rajasthan And Ors.

Equivalent citations: AIR 1983 SC 1012, 1983 (2) SCALE 384, (1983) 4 SCC 255

Bench: A Sen, E Venkataramiah, R Misra

Acts: Section 35(c), Section 38 of Advocates Act 1961, Bar Council of India Rules.

Facts of the case:

First Charge:

a) First charge on the appellant was that he changed sides in a criminal case, holding that though such conduct on his part was unprofessional, it was not tantamount to professional misconduct.

b) The Disciplinary Committee of the Bar Council of India rightly observes that it failed to appreciate the distinction drawn by the State Bar Council as his act in accepting the brief for the accused after having appeared for the complainant was clearly contrary to R. 33 of the Bar Council of India Rules, 1975. This is a duty of an advocate towards his client.

c) It is not in accordance with professional etiquette for an advocate while retained by one party to accept the brief of the other, in the same case.

d) It is unprofessional to represent conflicting interests except by express consent given by all concerned after a full disclosure of the facts. Appellant has not taken any consent from his clients i.e. complainants.

e) The appellant would not have appeared for the other side except with the permission of the learned Magistrate. Also he has not obtained any permission from the Magistrate in whose Court the case was pleaded.

f) A lawyer when entrusted with a brief is expected to follow the norms of professional ethics and try to protect the interests of his client in relation to whom he occupies a position of trust. It is his duty towards his client as well as towards his profession.

Second Charge:

a) Complainant and his wife were assaulted and got injured. After examined by a Radiologist, no injury found to Complainant, but his wife was suspected of having a fracture in skull and suggested to a specialist. Appellant approached complainant and promised to get a favourable report if he was engaged as a counsel and said that Rs. 300/- had to be paid to the Radiologist.

b) He had procured the brief of the complainant in another case on a fee of Rs. 300/- on the representation that he would secure a favourable report from the Radiologist showing that there was a fracture of the skull. For this he sent complainant to radiologist with Rs 300/- and a letter.

c) The appellant was guilty of reprehensible conduct.

d) The preamble to Chapter II Part VI of the Rules lays down that an advocate shall at all times, comfort himself in a manner befitting his status as an officer of the Court, privileged member of the community and a gentleman.

e) R. 4 of this Chapter provides that an advocate shall use his best effort to restrain and prevent his client from resorting to sharp and unfair practices etc. But in this case appellant himself was conducting the unfair practices to forge the evidences.

f) There is a long catena of decisions laying down that offering of bribe or giving bribe or taking money from the client for the purpose of giving bribe amounts to grave professional misconduct.

g) In defense of this charge the appellant said that the letter was given for publishing an advertisement to some other person and not the radiologist. But in fact no such advertisement was published anywhere. As per complainant he visited radiologist with that letter, but radiologist returned the same after reading.

Observations of Supreme Court:

1) Appellant was procured false evidence to save himself, in which, he failed. The evidence on record clearly shows that the appellant had taken money to pay a bribe to the Radiologist.

2) Though appellant is junior, he has to remember that he is now belongs to noble profession, which has very high traditions and those traditions are not to be sullied by malpractices of this nature.

3) Court strongly deprecate the conduct of the appellant but take a lenient view because he was an inexperienced member of the bar.

Punishment:

1) Disciplinary Committee of State Bar Council: Suspended from practice for three years.

2) Disciplinary Committee of Bar Council of India: Upheld the order of State Bar Council.

3) Supreme Court: Took a lenient view as the appellant was junior and inexperience and reduced the period of suspension from three years to one year.

Conclusion:

It is not in accordance with professional etiquette for an advocate while retained by one party to accept the brief of the other, in the same case. A lawyer when entrusted with a brief is expected to follow the norms of professional ethics and try to protect the interests of his client in relation to whom he occupies a position of trust. It is his duty towards his client as well as towards his profession. An advocate shall use his best effort to restrain and prevent his client from resorting to sharp and unfair practices. Though an advocate is junior and inexperienced he must know that is now belongs to the noble profession of advocacy.

To know the references and to read more articles related to Professional ethics and professional accounting system please visit this page Legal Profession: Professional Ethics and Professional accounting system.

Thanks for reading till the end. Please share this with all legal professionals.

V. C. Rangadurai vs D. Gopalan And Ors

 

Vande Matram! Here a case regarding the professional misconduct of an advocate is discussed.

V. C. Rangadurai vs D. Gopalan And Ors

Equivalent citations: 1979 AIR 281, 1979 SCR (1)1054

Bench: Krishnaiyer, V.R.

Petitioner: V. C. Rangadurai

-Vs-

Respondent: D. Gopalan and others

Act: Advocates Act, 1961, Article 19 of Constitution of India.

Facts of the case:

1) Appellant is a middle-aged man and has grossly misconducted himself and deceived a common client. He had been suspended from practice for one year.

2) The appellant had duped the respondents who are an old-aged couple. Appellant had not filed the suits on two promissory notes of respondents which were executed by their land-lady who had borrowed money from them, by deposit of title deeds.

3) A plaint for recovery of the amount due on one promissory note with interest was returned for presentation to proper court along with the required court fee, but it was never represented. Again plaint for recovery of the amount of second promissory note was drafted by the appellant but no such suit was filed. Further appellant made a false representation to respondents that the suits had been filed and gave them the various dates fixed in those suits, and later on, falsely told them that the court had passed decrees based on the two promissory notes.

4) On the faith of such representation the complainants served a lawyer's notice to their land-lady and called upon the debtor to pay the amount due under the decrees.

5) In denial of the charge the appellant pleaded that in past the debtor landlady was his client so he advised the respondents to engage some other counsel and told them that he had handed over the matter to another advocate. The other advocate pleaded that he signed Vakalatnama as junior, he never met the respondents, he had not been instructed to file the suits. Respondents issued the notice to both the advocates.

6) Observations of Disciplinary Committee of State Bar Council: In the said matter that other advocate who signed the Vakalatnama had become a witness. As per the disciplinary committee,

a) There was no reason to reject the evidence of the junior advocate.

b) Appellant who is a senior advocate tried to throw up his client.

c) The record does not establish that respondents were introduced to junior advocate by the appellant and then he was accepted as counsel in charge of the case.

d) Appellant miserably failed in his duties towards his fellow advocate very much junior to him.

Observations of Supreme Court:

1) It is not per professional etiquette for one advocate to hand over his brief to another to take his place at a hearing (either for the whole or part of the hearing), and conduct the case as if the latter had himself been briefed unless the client consents to this course being taken.

2) A lawyer when entrusted with a brief, is expected to follow the norms of professional ethics and try to protect the interests of his clients, with whom he occupies a position of trust. The appellant completely betrayed the trust reposed in him by the respondents.

Punishment:

1) State Disciplinary Committee: suspended him from practice for six years.

2) Disciplinary Committee: taken a lenient view and reduced the period of suspension from six years to one year.

3) As per Supreme Court: Opined that taking too lenient a view, in this case, would not be conducive to the disciplinary control of the State Bar Councils. The court dismissed the appeal and maintained the punishment imposed on the appellant.

To know the references and to read more articles related to Professional ethics and professional accounting system, please visit this page Legal Profession: Professional Ethics and Professional accounting system.

Thanks for reading till the end. Please share this with all legal professionals.

Bar Council Of Maharashtra vs M. V. Dabholkar Etc. Etc

 

Vande Matram! Here a case regarding the professional misconduct of an advocate is discussed.

Bar Council Of Maharashtra vs M. V. Dabholkar Etc. Etc

Equivalent citations: 1976 AIR 242, 1976 SCR (2) 48

Bench: Krishnaiyer, V.R.

Act: Advocates Act, 1961

Facts of the case:

1) The respondents were lawyers practicing in criminal courts and they were charged with professional misconduct under Section 35(1) of the Advocates Act, 1961.

2) Respondents positioned themselves at the entrance to the Magistrates' Courts, watchful of the arrival of potential litigants, and at sight, rushed the clients in an ugly scrimmage to snatch the briefs. To lay claim to the engagements even by the physical fight to undercut fees, and by this unedifying exhibition sometimes carried even into the Bar Library, solicited and secured work for themselves.

3) The Bar Council of Maharashtra considered the complaint received from the High Court against the lawyers and referred the matter to its Disciplinary Committee for further probe.

4) The Disciplinary Committee of the State Bar Council held the respondents guilty of professional misconduct and suspended them from practicing as advocates for three years.

5) On appeal, the Disciplinary Committee of the Bar Council of India held that under R. 36 of the Rules framed under S. 49(c) of the Advocates Act to be amenable to the disciplinary jurisdiction the advocates must have (i) solicited work (ii) from a particular person and (iii) concerning a case. 

6) It held that unless the three elements were satisfied it could not be said that an advocate had acted beyond the standard of professional conduct and etiquette. It, therefore, absolved all the respondents of the charge of professional misconduct. The State Bar Council has come in appeal to this Court.

7) Disciplinary Committee of the state bar council had decided 8 matters separately and in each case, the concerned advocates were suspended from practice for three years. But the appellate disciplinary committee of the Bar Council of India had clubbed all matters.

Observations of Supreme Court:

1) The court upheld the competence to appeal under s.38 of the Advocates Act, 1961.

2) Justice cannot be attained without the stream being pellucid throughout its course and that is of great public concern, not merely professional care.

3) The profound regret of these cases lies not only in the appellate disciplinary tribunal's subversive view of the law of professional conduct that attempted solicitation by snatching briefs and catching clients is or no ethical moment, or contravention of the relevant provisions, but also in the naive innocence of fair and speedy procedure displayed by the State Disciplinary Tribunal in clubbing together various charges levelled against 16 advocates in one common trial, mixing up the evidence against many, recording omnibus testimony slipshodly, not maintaining a record of each day's proceedings, examining witnesses in the absence of some respondents, taking eight years to finish a trial involving depositions of four witnesses and the crowning piece, omission to consider the evidence against each alleged delinquent individually in the semi-penal proceedings.

4) As eight cases are clubbed together case-by-case disposal is desirable.

5) Dabholkar: The evidence against him is far from satisfactory and suffers from generalised imputation of misconduct against a group of guilty lawyers. He was a senior public prosecutor at age of 68 years. He had just four cases left with him which he desired to complete, having received fees. Also, he is willing to retire from the profession. On the evidence, we exonerate him from professional misconduct and otherwise we record his solemn statement to the Court.

6) Bhagtani: After examining the evidence, whatever was found extinguishes the charge against him. No need arises for punishing him.

7) Talati: He has been found 'not guilty' in appeal but, as we perused the evidence, it became fairly clear that some acts of misconduct had been made out, although the evidence suffered from omnibus implication. Further, he has given an undertaking expressing unqualified regret for his deviant behaviour and has prayed for the clemency of the Court, promising to turn a new leaf of proper professional conduct, if he were permitted to practice. In short, Court found him guilty and reluctantly restored the verdict of the original tribunal, but reduced the punishment to suspension from practice, as aforesaid.

8) Kelawala: Kelawala had become purblind and was ready to give an undertaking to the Court that he would no longer practice in the profession. In this view, Court did not disturb the finding of the Disciplinary Committee of the Bar Council of India.

9) Dixit: Evidence against this advocate was inadequate to bring him guilty of misconduct. Court readily hold him rightly absolved from professional misconduct.

10) Madalia: The evidence is so little that it is not possible or proper to pick out with precision and assurance any particular 'soliciting' act to infer guilt.

11) Doshi: He appears to have fair professional weather ahead in the City. Court holds him unblemished so far as the vice of solicitation is concerned, but caution him to refine himself in advocacy.

12) Raisinghani: Evidence shows that although he is 65 years old, the evidence shows that he has physically fought two rival advocates in the course of snatching the briefs from clients, entering the Esplanade criminal courts. He was a refugee from Pakistan. He has given an undertaking expressing remorse, praying to be shown clemency and assuring that, economic pressure notwithstanding, he will not go anywhere near professional pollution in the last years of his practice at the Bar. The court is inclined to take a sympathetic view of his septuagenarian situation, record his apology and assurance, restore the verdict of guilt by the State Disciplinary Committee but reduce the punitive part of it.

13) State Tribunal had taken 8 years for this enquiry.

14) As per the order of the Supreme Court all parties to the suit have to bear the cost.

To know the references and to read more articles related to Professional ethics and professional accounting system please visit this page Legal Profession: Professional Ethics and Professional accounting system.

Thanks for reading till the end. Please share this with all legal professionals.

N.B. Mirzan vs The Disciplinary Committee Of The Bar Council of Maharashtra and another

Vande Matram! Here a case regarding the professional misconduct of an advocate is discussed.

N.B. Mirzan vs The Disciplinary Committee Of The Bar Council of Maharashtra and another

Equivalent citations: AIR 1972 SC 46, (1972) 4 SCC 412, 1972 (4) UJ 164 SC

Bench: S Sikri, D Palekar, A Ray

An appeal under Section 38 of the Advocates Act, 1961

Facts of the case:

1) The appellant, Mr. N. B. Mirzan, was an Advocate on the roll of the Bar Council of Maharashtra. Respondent no. 2 was the client of the appellant.

2) Respondent no. 2 made several allegations of professional misconduct against the appellant which were referred by the State Bar Council to its Disciplinary Committee.

3) Decision of State Disciplinary Committee: After a detailed inquiry into the allegations, the State Disciplinary Committee came to the conclusion that professional misconduct had been established on three counts which involved moral turpitude. The Committee, therefore, directed that the appellant should be suspended permanently and should not be allowed to appear before any Court, authority, or person in India.

4) Appeal was filed to the Bar Council of India by the appellant. The appeal was heard by the Disciplinary Committee of the Bar Council of India.

5) Decision of Disciplinary Committee: The Disciplinary Committee confirmed the findings of the State Disciplinary Committee but, as regards the punishment, it directed that the appellant be suspended from practice for five years and to pay to Respondent No. 2 a sum of Rs. 850/-within two months. If the amount was not paid, the punishment imposed by the State Disciplinary Committee striking out the appellant's name from the roll of Advocates would stand confirmed.

6) Appellant approached Supreme Court to challenge the decision of Disciplinary Committee of Bar Council of India.

7) Facts of the case of Respondent no. 2: Respondent no. 2 engaged appellant in case of obstructionist notice issued to him by the Presidency Small Cause Court, Bombay. The following transactions were done during the case:

a) Rs. 190/- for court-fee stamps, no formal receipt was issued. This is professional misconduct because no court fee stamps were necessary to be paid by respondent No 2 in an obstructionist notice and it was a false demand.

b) Rs. 975/- required for deposit in the above suit byway of rent and a receipt was issued by the appellant for this amount. This is professional misconduct because no order could possibly be passed by the Court asking an obstructionist to make a deposit in Court towards rent and it was a false demand.

c) Rs. 250/- necessary for payment to some Judge or officer for getting the rent bill transferred in the name of respondent No. 2 in respect of the premises which were the subject matter of the above suit and a receipt was issued by the appellant for this amount. This is professional misconduct because there could be no proceedings for transferring the rent bill in the name of respondent No. 2 in the absence of any negotiations with the landlord and it was a false demand.

All these transactions were done based on false demand of the appellant which is nothing but the misappropriation of the client’s money.

d) Further the landlord filed suit in the City Civil Court, Bombay against respondent No. 2 and his brother for ejectment and mesne profits. A written statement was filed admitting that no rent had been paid by respondent No. 2 to his landlord. City Civil Court passed an order directing respondent No. 2 to deposit in Court the amount due for arrears of rent. But an amount of Rs. 975/- given to appellant for deposit of rent which was more than sufficient for making the deposit by the order of the City Civil Court. Appellant gave notice to respondent No. 2 to come with the money for the purposes of deposit and the trouble started. No money transaction was incurred at this stage but respondent no. 2 came to know that his money has been misappropriated.

e) Before filing the complaint, a settlement was brought between appellant and Respondent no. 2 and the appellant undertook to pay to respondent No. 2 Rs. 1,000/-by installments of Rs. 150/-per month. The appellant sent the first installment of Rs. 150/-by money order.

Opinion of Supreme Court:

a) First transaction of Rs. 190/- was not having any receipt. Appellant impliedly denied the demand and receipt of Rs. 190/-since, admittedly, there was no formal receipt for it. But after examining witness Noor Mohammad who introduced Respondent no. 2 to the appellant, it was proved that Rs. 190/- were paid to the appellant for purchasing court fee stamps. This explanation has been rejected by both the Disciplinary Committees. Thus court opined that “We are, therefore, satisfied that the appellant had demanded and received Rs. 190/-for the purchase of court fee stamps in the beginning of his engagement as an Advocate, though, in fact, he did not have to purchase any court fee stamps.”

b) The amount of Rs. 975/- had been received by the appellant for making a deposit in Court against expenses or rent. It is further admitted by the appellant that no order had been made by the Court for the deposit of rent. The Court opined that “It is obvious that he obtained this amount on a false pretext and, when such a demand is made on a false pretext, the inference Would naturally follow that the demand had been made with a view to misappropriate the amount.”

c) Regarding Rs. 975/-, the appellant put forward the defence that this amount had been actually returned to respondent No. 2 in the court premises when the Obstructionist notice was discharged. In support of this, the appellant produced an alleged Receipt. Both the Disciplinary Committees were inclined to the view that this was a suspicious document if not a false document. Respondent No. 2, admitted that, when demanded by the appellant, he had put his thumb impression on a blank cartridge paper so that they could be used during his absence for the purpose of the litigation. After examining the witness regarding this receipt on ledger paper. Both the Disciplinary Committees have held that the receipt of payment given back to respondent no. 2 was not a genuine document and Supreme Court was also satisfied with this finding.

d) Money order of Rs. 150/- was the first installment of the settlement between appellant and respondent no. 2. For this appellant admitted that Respondent no. 2 requested him for a loan when respondent no. 2 visited him with a social worker. Out of pity, the appellant sent the money order for a loan. The explanation was regarded by both the Committee as false because under the circumstances of the case and because of the bitter disputes between the parties, it was extremely unlikely that the appellant would make any loan to respondent No 2. The story of the loan has been rejected by both the Committees. The court opined that “We, therefore, agree with the concurrent finding of both the Committees that the appellant had demanded and received Rs. 975/-from respondent No. 2 on a false representation that the amount was required to be deposited in Court and thereafter misappropriated the same.”

e) Amount of Rs. 250/- was demanded and received by the appellant from Respondent no. 2. For this appellant pleaded that he had been instructed by respondent No. 2 to file a declaratory suit for transferring rent bill in his name. The obstructionist proceedings were still pending and one does not know what kind of proceedings could be taken in a court of law for transferring the rent bill. Seeing that the story was unconvincing, the appellant changed his case later and started that this sum of Rs. 250/-was paid to him towards the court fees in respect of the intended declaratory suit, his fees, and other pocket expenses. The amount had been screwed out by the appellant on a false representation for the purposes of misappropriation.

Punishments:

The State Disciplinary Committee had permanently debarred the appellant from practising as an Advocate, but, in appeal, the Disciplinary Committee of the Bar Council of India has taken a more lenient view and suspended the appellant from practice for five years on condition that he pays respondent No. 2 Rs. 850/-within two months.

Order of Supreme Court:

As the result, the appeal fails and is dismissed with costs.

To know the references and to read more articles related to Professional ethics and professional accounting system please visit this page Legal Profession: Professional Ethics and Professional accounting system.

Thanks for reading till the end. Please share this with all legal professionals.

===================================================

Punishments for professional misconduct

Vande Matram! In this article, I am discussing, punishments for professional misconduct of an Advocate which is in the light of the Bar Council of India rules, and the Advocates Act, 1961. Let’s begin.

Punishments for professional misconduct:

Introduction:

As stated by Justice K. Ramaswamy, any improper or wrongful behaviour which is unlawful in nature and is done deliberately by a professional person, can be considered professional misconduct. Further, performing any forbidden act or a transgression of established and definite rule of action or code of conduct may lead to professional misconduct. Though Advocates Act 1961 is silent on the definition of professional misconduct it empowers the Disciplinary Committee of a bar council to punish an advocate for his professional misconduct. As per Section 9 of the Act every bar council has to establish at least one disciplinary committee, which will look after the matters related to the professional misconduct of an advocate on receiving a complaint against him. Section 35 gives for the punishments for the professional misconduct of an advocate. Section 35 of Advocates Act, 1961 is produced and discussed here:

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.

On receipt of a complaint against an advocate for his professional misconduct, State Bar Council has to refer it for disposal to its disciplinary committee.

(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.

As per Section 9, a state bar council can establish more than one disciplinary committee. State bar council can withdraw a proceeding pending before one disciplinary committee and refer that matter for further proceedings and inquiry to its other disciplinary committee. Such transfer of matters can be done by State Bar Council on its own motion or on an application by the person interested in such matter.

(2) The disciplinary committee of a State Bar Council 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.

As the disciplinary committee is intimated about a complaint, it has to decide a date for a hearing of that matter. A notice of hearing must be given to the advocate concerned as well as a copy must be forwarded to the Advocate-General of the State. Such notice of hearing gives the concerned advocate a fair chance of being heard, which is following principles of natural justice.

(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.

After the hearing is conducted the disciplinary committee can pass any of the following orders:

1. Dismiss the complaint: If a complaint is done by any random person against an advocate for his professional misconduct, then after hearing both sides of the matter, the disciplinary committee can dismiss the complaint by giving its orders depending upon the case.

2. Direct that the proceedings be filed: Sometimes State Bar Council on its own, initiates initiate the proceedings against professional misconduct of an advocate, in such cases disciplinary committee can direct that the proceedings are filed and further actions may be taken.

3. Reprimand the advocate: Disciplinary committee can inform strongly and formally that he/she had done such an act which is unethical in the norms of advocacy professional ethics and can further give a statutory warning to that advocate not to repeat the same in the future.

4. Suspension of advocate: Disciplinary committee can suspend an advocate for a specific time as it may deem fit. Due to such suspension, the advocate is not allowed to practice the legal profession anywhere in India during his suspension period.

5. Remove the name of the advocate from the state roll of advocates: This is a permanent ban on that advocate and he is not allowed to practice the legal profession anywhere in India during his lifetime.

(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 Advocate-General may appear before the disciplinary committee of the State Bar Council either in person or through any advocate appearing on his behalf.

Explanation.―In this section, 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.

Thus disciplinary committee of the State Bar council can punish an advocate if a complaint is filed against him or State Bar Council on its own motion initiates proceedings against him.

Note: Part in Red words is part of Bare Act – Advocates Act, 1961.

If you want to know about specific provisions of the Advocates Act, 1961 and the Bar Council Rules then let me know in the comments below.

To know the references and to read more articles related to Professional ethics and professional accounting system please visit this page Legal Profession: Professional Ethics and Professional accounting system.

Thanks for reading till the end. Please share this with all legal professionals.