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2011 DIGILAW 443 (ALL)

ANAND TIWARI v. BAR COUNCIL OF U. P.

2011-02-23

ABHINAVA UPADHYA, S.K.SINGH

body2011
JUDGMENT By the Court.—Heard Sri Ashok Sharma, learned Advocate in support of this petition and Sri Pankaj Naqvi, learned Advocate who appeared for respondent No. 1. 2. By means of this writ petition petitioner has prayed for quashing of the resolution dated 28.3.2010 of the Bar Council of Uttar Pradesh as well as subsequent proceedings pending before the disciplinary committee bearing Case No. 55 of 2010 (Smt. Sujada Yadav v. Anand Tiwari and others). 3. When the matter was entertained on 13.12.2010 learned counsel for respondent No. 1 sought time to obtain instructions and to give information to the Court about certain factual aspects. 4. Sri Naqvi, learned Advocate on the basis of the instructions so received and the documents with him argued the matter. 5. Submission of the learned counsel for the petitioner is that on receipt of the complaint about misconduct of an Advocate the Bar Council in routine way referred the matter to the disciplinary committee without considering the merits as per provisions of Section 31(1) of The Advocates Act and thus that is not justified. Submission is that the Bar Council did not call any comment from the petitioner prior to referring the matter to the disciplinary committee as provided under the relevant Rules of Bar Council of India Rules. It is on the aforesaid premises challenge is to the reference by the Bar Council to the disciplinary committee about the trial of the misconduct of the petitioners. 6. In support of the submission reliance has been placed on the decision given by the Special Bench of this Court in the matter of H an Advocate reported in AIR 1941 Alld 280. 7. In response to the aforesaid submission learned counsel for the respondent No. 1 submits that argument of routine reference by the Bar Council to the disciplinary committee is totally misconceived and it is after prima facie satisfaction about the merits in the complaint and after recording satisfaction the matter is referred to the disciplinary committee who is to issue notice to the Advocate and after getting reply is to decide the matter in its own way, in accordance with law. 8. Submission is that exercise by the Bar Council is neither arbitrary nor illegal. 8. Submission is that exercise by the Bar Council is neither arbitrary nor illegal. Submission is that this petition has been filed at a pre-mature stage just to judge the merits of the pending matter before the disciplinary committee who is to take appropriate decision in the light of pleadings, evidence and otherwise after hearing both sides. 9. Decision on which reliance has been placed by the learned counsel for the petitioner has no application to the facts of the present case. 10. It is on the aforesaid premises, in the light of the facts as is available before the Court, we are to deal with the same. 11. Before, we are to refer the facts of the present case so as to test the action of the Bar Council impugned before this Court to be justified, correct and arbitrary, we are to refer certain provisions of The Advocates Act, 1961, hereinafter referred to as the Act and the Rules known as Bar Council of India, hereinafter referred to as the Rules, framed under The Advocates Act, 1961 which may deal and may explain to the legal submission as advanced by the learned counsel for the petitioner. 12. The Advocates Act was introduced to amend and consolidate the law relating to legal practitioners and to provide for the constitution of Bar Councils and an All India Bar. 13. Chapter V of the Act deals with the conduct of Advocates. Section 35 of the Act refers about punishment of the Advocates for the misconduct. Provisions as contained in Section 35(1) of the Act is hereby quoted- “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.” 14. Disciplinary committee after giving advocate concerned an opportunity of being heard so as to pass appropriate orders as permitted in Section 35(3) of the Act. Disciplinary committee after giving advocate concerned an opportunity of being heard so as to pass appropriate orders as permitted in Section 35(3) of the Act. For convenience Section 35(3) of the Act is hereby quoted— 35(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 deemed fit; (d) Remove the name of the advocate from the State roll of advocates.” 15. The constitution and the norms for State Bar Council is provided under Rule 33 of the Act. In accordance with the norms so provided under the Act, so far State of U.P. is concerned, 25 elected members are to constitute the State Bar Council. 16. The constitution of the disciplinary committee as noted in Section 35 of the Act who is to deal with the cases of misconduct is also provided in Section 9 of the Act. Section 9 of the Act is also for convenience is quoted below : “9. Disciplinary Committees.—(1) A Bar Council shall constitute one or more disciplinary committees, each of which shall consist of three persons of whom two shall be persons elected by the Council from amongst its members and the other shall be a person co-opted by the Council from amongst advocates who possess the qualifications specified in the proviso to sub-section (2) of Section 3 and who are not members of the Council, and the senior-most advocate amongst the members of a disciplinary committee shall be the Chairman thereof. (2) Notwithstanding anything contained in sub-section (1), any disciplinary committee constituted prior to the commencement of the Advocates (Amendment) Act, 1964 (21 of 1964) may dispose of the proceedings pending before it as if this Section had not been amended by the said Act.” 17. Now we are to advert to the Rules framed by the Bar Council of India under Section 49(1)(f) of the Act. Now we are to advert to the Rules framed by the Bar Council of India under Section 49(1)(f) of the Act. Section 49(1)(f) of the Act gives power to the Bar Council of India to make Rules about the procedures to be followed by the disciplinary committee of the State Bar Council and by its own disciplinary committee. Section 49(1)(f) of the Act is hereby quoted : “(f) The procedure to be followed by the disciplinary committee of State Bar Council and by its own disciplinary committee.” 18. In respect to the Rules of conduct and cases of misconduct, as noted above, Rules have been famed by the Bar Council of Inida which is provided in Part VII of the Bar Council of India Rules. Rule 1(1) provides for receiving of a complaint in the form of petition duly signed and verified as required under Code of Civil Procedure. Rule 1(2) authorises Secretary of the Bar Council to ask the complainant to pay prescribed fee, if not paid and to remove any defect and call for such particulars complaint or other documents as may be considered necessary. 19. Rule 1(3) states that on a complaint being found to be in order it shall be registered and placed before the Bar Council for such orders as it may deem fit to pass. 20. Rule 2 of the aforesaid Rules authorises Bar Council to require the complainant to furnish within the time to be fixed better particulars and may also call for comment of the advocate complained against. 21. For convenience, we are to quote Rules as framed in relation to the disciplinary proceedings : “A. Complaint and Enquiry under Sections 35, 36 and 36B of the Act 1. (1) A complaint against an advocate shall be in the form of a petition duly signed and verified as required under the Code of Civil Procedure. The complaint could be filed in English or in Hindi or in regional language where the language has been declared to be a state language and in case the complaint is in Hindi or in any other regional language, the State Bar Council shall translate the complaint in English whenever a disciplinary matter is sent to the Bar Council of India under the Advocates Act. Every complaint shall be accompanied by the fees as prescribed in the Rules framed under Section 49 (h) of the Act. Every complaint shall be accompanied by the fees as prescribed in the Rules framed under Section 49 (h) of the Act. (2) The Secretary of the Bar Council may require the complainant to pay the prescribed fees if not paid, to remove any defects and call for such particulars or copies of the complaint or other documents as may be considered necessary. (3) On a complaint being found to be in order, it shall be registered and placed before the Bar Council for such order as it may deem fit to pass. (4) No matter taken up by the State Bar Council suo motu or arising on a complaint made under Section 35 of the Act shall be dropped solely by reason of its having been withdrawn, settled or otherwise compromised, or that the complainant does not want proceed with the enquiry.” 22. After quoting the relevant provisions of the Act and the Rules it is clear that Rule 1(2) of the Rules authorises the Secretary to get some defect removed, if any, by asking the complainant and at the same time Rule 2 of the aforesaid Rules authorises Bar Council to require the complainant to furnish better particular, if so required and may also call for the comment from the Advocates complained. 23. A perusal of the aforesaid Rules nowhere mandate the disciplinary committee pre-trial either in the shape of exchange of pleadings or in the light of any kind of evidence or otherwise is required to take place. It is only after the reference Rule 3 of the Rules mandates the disciplinary committee to send notice to the advocate concerned requiring him to show-cause and to submit various affidavits, evidence etc. for the purpose of hearing and deciding the case. At this stage we are to quote Rule (3)(1) of the aforesaid Rules : “3. (1) After a complaint has been referred to a Disciplinary Committee by the Bar Council, the Registrar shall expeditiously send a notice to the advocate concerned requiring him to show-cause within a specified date on the complaint made against him and to submit the statement of defence, documents and affidavits in support of such defence and further informing him that in case of his non-appearance on the date of hearing fixed, the matter shall be heard and determined in his absence.” 24. So far reference which is made by the Bar Council, Section 35 of the Act states that Bar Council has reason to believe about the Advocate being guilty of professional or other misconduct for the purposes of referring the case for disposal of the disciplinary committee. 25. On a combined reading of the provisions as contained in the Act and Rules submission of the learned counsel for the petitioner that before making reference to the disciplinary committee Bar Council is to take defense of the petitioner and then a finding in respect to the satisfaction of the guilt as prima facie is to be recorded and only then reference can be made, appears to be totally misconceived and if that is accepted then that may lead to the trial about charges against an advocate at two stages i.e. (i) before the Bar Council and (ii) before the disciplinary committee. 26. Satisfaction to the Bar Council is not to be in the light of version of both sides/in the light of the material placed from both sides, because that can be the job of the disciplinary committee as provided under the Rules. If for any reason so recorded Bar Council wants to get fresh particulars from the complainant and the comment from the advocate obtained then discretion might be there with the Bar Council as provided under Rule 2 of the Rules, noted above. But this can be all within the discretion and with the satisfaction of the Bar Council. 27. Here is the case where Bar Council in its resolution has clearly recorded satisfaction and it is stated in the resolution that after perusal of the contents of the complaint the Bar Council has reason to belief about prima facie guilt of professional misconduct/other misconduct and thus the matter is referred to the disciplinary committee for disposal in accordance with law. 28. Now the disciplinary committee is to proceed in the matter after giving full fledged opportunity to the petitioners of filing defence and leading the evidence. 29. After getting the complaint registered and on being placed before the Bar Council in the manner so provided under the Rules, Bar Council is to pass such orders as it may deem fit to pass and that may include the dropping of the proceedings. 30. 29. After getting the complaint registered and on being placed before the Bar Council in the manner so provided under the Rules, Bar Council is to pass such orders as it may deem fit to pass and that may include the dropping of the proceedings. 30. In respect to the exercise of dropping of the proceedings or the decision to refer the matter to the disciplinary committee it is the prima facie satisfaction of the Bar Council on a perusal of the complaint and details so furnished by the complainant and if that satisfaction at this stage is tested in the light of the defense/evidence which might be placed before the advocate concerned then it may lead to a situation that in all reference matter this Court as the fact finding Court is to find out the correctness or otherwise of the decision and then to accept or not to accept the decision of the Bar Council and then leaving it to be just tried by the disciplinary committee. This may be in the and then interest of the concerned advocate also for the simple reason that if dealing with the factual aspects in the light of claim/contention of both sides, if this Court found the contention of the petitioner to be not acceptable and feels the case to be a fit case in which reference has been correctly made which is to be tried by the disciplinary committee then that may cause prejudice to the concerned Advocate which he may complaint at a later point of time. 31. Thus it is always safe for the Court and also for the concerned advocate to permit the defense to be placed before the disciplinary committee and also the evidence so that the merits in the case of either of the sides may be judged and appropriate orders, in accordance with law may be passed. 32. The aforesaid situation may be placed in another way i.e. in respect to any kind of charge either against a government official or otherwise, if proposed allegation and charges are communicated to a person and he is called upon to submit his reply and the material in support of his version then he is to do so instead of insisting for non submission of the reply and the materials in support of his version. It will be wrong on the his part not to satisfy that authority by filing response rather rush to this Court for investigation of the matter as a fact finding Court. If the matter is attended by the Court then certainly other side is to be called upon and for accepting/rejecting merit in the contention of either of the sides besides the exchange of pleadings evidence will also be required and the writ exercise specially is not meant for this. The Court will have to refuse to accept the submission of the petitioner side. 33. As on date the matter having been referred to the disciplinary committee a notice from the committee for filing of the defence and the evidence by the petitioner will be just a procedural matter and thus insistence of the petitioner that it should be undertaken by the Bar Council itself which consist of 25 members appears to be totally unjustified and that is not acceptable under any of the provisions of the Act or Rules. 34. The Bar Council while referring the matter to the disciplinary committee is empowered under Section 35 of the Act is not to write a long order stating the grounds for satisfaction as the word used in Section 35 of the Act is that the Bar Council has a reason to believe. 35. About the satisfaction so recorded for referring the matter to the committee as being complained to be arbitrary, we may also hurriedly notice the facts so as to have our prima facie satisfaction in respect to the claim of unwarranted harassment. 36. Here is the case where respondent No. 2 who is a lady (wife of petitioner No. 1) has made a complaint about Maar-peet, and various other charges about demand of dowry etc. and at the same time pressure for signing the papers for the purposes of divorce. Report in respect to the misdeeds of the petitioners was made to the local police upon which F.I.R. Under Section 498-A, 323 and 506 I.P.C. and 3/4 Dowry Prohibition Act was lodged and on filing writ petition before this Court the District Judge and the Senior Superintendent of Police were asked to ensure suitable protection. Report in respect to the misdeeds of the petitioners was made to the local police upon which F.I.R. Under Section 498-A, 323 and 506 I.P.C. and 3/4 Dowry Prohibition Act was lodged and on filing writ petition before this Court the District Judge and the Senior Superintendent of Police were asked to ensure suitable protection. The complainant also is an enrolled advocate and she is also a member of Kanpur Bar Association and in respect to her wishes of starting the law practice, petitioners crushed the same and in various ways they harassed, tortured and serious threats were extended for the life and property of the complainant and family members. A detailed/exhaustive complaint supported by lodging of F.I.R. and other papers are duly verified on the affidavits. 37. Bar Council in the light of seriousness of the complaint supported by series of documents duly verified by the affidavit being was prima facie satisfied that it is a fit case for referring the matter to the disciplinary committee for disposal in accordance with law and thus we do not feel persuaded to accept the submission that exercise of the Bar Council in making reference is otherwise arbitrary, whimsical and is a routine one. Bar Council has clearly mentioned in its resolution that the contents of the complaint has been perused and thus it goes without saying that copy of the complaint, the documents annexed with the complaint were all taken into account and having a reason to believe about commission of professional or other misconduct as the case may be, referred the matter for disposal to the disciplinary committee. 38. Submission of the learned counsel for the petitioner that even if the charges against the petitioners are accepted to be correct this was not professional misconduct is totally misconceived for the simple reason that for an advocate who is always called learned if such kind of behaviour and conduct with his wife and her family member is accepted then it can be said to be just unbecoming as expected to be the conduct of a gentleman, what to say an advocate. 39. Reliance as placed by the learned counsel for the petitioner and decision given by the Special Bench in the matter of H, an Advocate Cawnpore (supra), where there is observation about professional misconduct and other misconduct is not applicable to the facts of the present case. 39. Reliance as placed by the learned counsel for the petitioner and decision given by the Special Bench in the matter of H, an Advocate Cawnpore (supra), where there is observation about professional misconduct and other misconduct is not applicable to the facts of the present case. The case noted above was of a simple case of misappropriation of the money by an advocate which was found to be normally triable by an ordinary Criminal/Civil Court. The case on which reliance has been placed is the matter where under the provisions of Section 12(2) of the Bar Council Act, 1926 a complaint came to this Court and on the facts of that case the Court not being satisfied with the prima facie merits proposed to summarily reject/drop the complaint. 40. The exercise, discretion and the powers at the first instance can be a matter of issue for forming an opinion this or that way in the light of the complaint and thus here is the case where complaint was supported with affidavit and series of documents were there upon which the Bar Council formed prima facie opinion to get the matter inquired by referring it to the disciplinary committee and thus there being no charge of any bias or any mala fide approach of the Bar Council in dealing with the matter if Bar Council was satisfied with the merits of the complaint for the purpose of its reference to the disciplinary committee, we are of the considered view that neither the Bar Council has exceeded in its jurisdiction in the impugned exercise nor that can be termed to be arbitrary, whimsical or perverse. 41. For the reasons given above, we do not find any merit in this writ petition and thus we decline to quash the impugned resolution dated 28.3.2010 and consequential proceedings before the disciplinary committee. 42. Writ petition fails and it is dismissed accordingly. —————