18

1. In Re: D An Advocate Of The Supreme ... vs Unknown on 23 November, 1955

Equivalent citations: AIR 1956 SC 102, (1956) 58 BOMLR 510, 1956 CriLJ 280
Author: Das
Bench: B Mukherjea, S Das, V Ayyar
JUDGMENT
Das, J.
1. This Rule was issued by this Court under Order IV, rule 30 of the Rules of this Court after receipt of a report from the Bombay High
Court that that High Court had, by its order made on the 13th October, 1955 in Civil Application No. 1506 of 1955, suspended the
respondent from practice as an Advocate of that High Court for a period of one year from the date of the said order. By the rule the
respondent has been required to show cause why, in view of the matter specified in the judgment and order of the Bombay High Court
referred to above, appropriate action, disciplinary or otherwise, should not be taken against him by this Court.
2. The respondent is an Advocate of some standing in the Bombay High Court and as such was also enrolled as an Advocate of this Court.
It appears that in the earlier part of the year 1953 the Advocate was prosecuted before Mr. Sonavane, one of the Presidency Magistrates
at Bombay, on a charge of having committed an offence under the Bombay Prohibition Act. The trial lasted from July 1953 to November
1953. On the 18th November, 1953 the Magistrate convicted the Advocate of the offence with which he was charged and sentenced him
to rigorous imprisonment for one month and to a fine of Rs. 201 and to rigorous imprisonment of four weeks in default of payment of the
fine. The Advocate went up on appeal to the High Court. The High Court on the 24th February, 1954 upheld the conviction but altered the
sentence to one of fine of Rs. 1,000 only.
3. In the meantime, on the 25th November, 1953, the trial Magistrate, Mr. Sonavane, made a report to the Registrar (Appellate Side) of
the Bombay High Court as to the conduct of the Advocate who appeared in person as the accused before him. On a perusal of that report
the Hon'ble the Chief Justice of the Bombay High Court constituted a Tribunal consisting of three members of the Bar Council to enquire
into the conduct of the Advocate. The Tribunal issued a summons against the Advocate intimating that it would enquire into his conduct
as disclosed in :-
(a) the report dated the 25th November, 1953, of Shri T. A. Sonavane, B.A. LL.B., Presidency Magistrate, 18th Court, Girgaum, Bombay, to
the Registrar, High Court, Appellate Side, Bombay, regarding Case No. 593/P of 1953 tried by him, and
(b) the judgment recorded by the High Court of Judicature at Bombay in Criminal Appeal No. 1532 of 1953 (with Criminal Appeal No. 1564
of 1953) upholding the judgment and order of conviction passed against him by the aforesaid learned Magistrate in the aforesaid case.
4. The proceedings appear to have been somewhat protracted by reason of frequent objections made and petitions filed by the
respondent but eventually on or about the 16th March, 1955 the respondent forwarded to the Secretary to the Bar Council Tribunal a
copy of a letter addressed by him to the Registrar, High Court, Bombay, and requested the Tribunal to send a report to the High Court in
terms of his pleading guilty to the charges leveled against him. He concluded the letter by expressing regret for having wasted the time of
the Tribunal. In his letter to the Registrar, the respondent enclosed a separate written apology unconditionally withdrawing his contention
that the proceedings before the Tribunal were misconceived in law and admitting that the High Court had full authority in law to refer the
matter to the Bar Council Tribunal and further that the statements made by Mr. Sonavane in his report were true except in two respects
therein specified. On the 28th March, 1955 the respondent submitted an additional statement clarifying and supplementing his previous
apology. Thereupon the Tribunal made a report to the High Court. By this report the Tribunal held, on the respondent's own admission,
the allegations in the report of Mr. Sonavane to be proved and recommended that a very serious notice should be taken of the
respondent's conduct. As regards the second item in the summons the Tribunal held that the 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 and, therefore,
found him not guilty of that charge.
5. On a perusal of that report the High Court issued notice to the respondent for final hearing of the matter. The matter came up for final
disposal before a Bench consisting of the Chief Justice and Tendolkar, J. on 13th October, 1955. Learned counsel appearing for the
respondent offered an unconditional and unqualified apology on behalf of the respondent and pleaded that the ends of justice would be
met if the Court only administered a warning to the respondent. After considering the report of the Tribunal the High Court took the view
that the misconduct of the respondent was so serious and so grave that a deterrent punishment must be imposed on him. Accordingly,
taking everything into consideration, the High Court suspended the respondent from practice for a period of one year from the date of
that order. The respondent's application for a certificate of fitness for appeal to this Court having been refused, the respondent filed a
petition for special leave to appeal before us. That petition has, however, been dismissed by us. The rule for disciplinary action now
remains to be dealt with.
6. In answer to the rule the respondent has filed a petition by way of showing cause. Paragraph 7 of that petition runs as follows :-
"7. That the report of the learned Presidency Magistrate, 18th Court, is a highly exaggerated, garbled and manifestly incorrect version of
the incidents that occurred during the trial of the case. And looking to the circumstances under which the petitioner was more or less
compelled to tender a humiliating apology, this Hon'ble Court be pleased to direct that a proper inquiry be held in the matter by or under
the directions of this Hon'ble Court".
7. Appearing in person before us the respondent has contended with a certain amount of vehemence that he had not had any fair deal
before the Tribunal, that the Tribunal had no jurisdiction to enter upon the enquiry 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, that the Tribunal had
at one stage held that it had no jurisdiction but had without giving him a hearing gone back on that decision and declined to decide that
question in his presence, that the Tribunal failed to formulate any formal charge, that he made an application to the High Court under
 18

article 227 for quashing the proceedings for want of jurisdiction but the High Court had rejected that application and declined to give him
a certificate of fitness for appeal to this Court and pointed out various other matters which he characterised as showing prejudice and bias
on the part of the Tribunal.
8. It was pointed out to the respondent that his application for special leave to appeal from the judgment and order of the High Court
having been dismissed we were not, in this Rule, concerned with the proceedings in the Bombay High Court or before the Tribunal of the
Bar Council as observed by this Court in In the matter of Mr. G, a Senior Advocate of the Supreme Court . The respondent then fell back
upon paragraph 7 of his petition quoted above and asked this Court to hold a fresh enquiry into the matter. From the judgment of the
Bombay High Court which is referred to in the Rule issued herein it appears that the respondent had admitted the truth of everything
contained in Mr. Sonavane's report except two matters only. In his present petition showing cause he does not, apart from a vague
allegation that the report is an exaggerated, garbled and manifestly incorrect version of the incidents that occurred during the trial of the
case, refer to and particular statement therein which is exaggerated garbled or incorrect. In view of his unconditional admission of the
truth of the statements in the report of Mr. Sonavane we are not prepared to permit him to go back on the same on such vague
allegations as are to be found in paragraph 7 of his petition. It is needless for us to emphasise that a person holding the responsible
position of an Advocate of a High Court and of this Court cannot be permitted to play with the Court in the way this Advocate has done.
He admitted the correctness of the report, confessed his guilt and tendered an unconditional apology evidently in the hope that he would
get away with it by merely tendering an apology. Finding that the tactics did not work with the High Court as he expected the same to do,
he now wants to charge his tactics by asking for an enquiry which he had himself avoided by means of his admission and apology. This we
are not prepared to permit to do. We have carefully gone through the report of Mr. Sonavane and we find ourselves in entire agreement
with the High Court when it says that that report makes an extremely sad reading. The conduct of the respondent in the criminal trial was,
as pointed out by the High Court, entirely indefensible by any standard. It discloses a continuous and persistent attempt on the part of the
respondent to be rude to 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, in our opinion, merits severe condemnation.
9. The respondent has drawn our attention to the case of In re Thomas James Wallace ([1866] L.R. 1 P.C. 283), which was followed in In re
An Advocate of Benares . We do not conceive that the
Privy Council intended to lay down any fixed and rigid rule of law or did anything more than indicate the course which, in the
circumstances of that case, it considered to be reasonable, satisfactory and convenient and the Allahabad case simply followed the same.
As has been held by a Full Bench of the Bombay High Court in The Advocate-General of Bombay v. Three Advocates ([1934] I.L.R. 59 Bom.
57), 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 a professional or other capacity leaving it
to the discretion of Court to take action only in suitable cases. To the like effect is the decision of a Special Bench of the Calcutta High
Court in In the matter of an Advocate ([1936] I.L.R. 63 Cal. 867). The pleader concerned in the case of In re a Pleader (I.L.R. [1943] Mad.
459), was certainly not, by shouting slogans in Court, functioning as an Advocate, nevertheless he was dealt with under section 13(f) of
the Legal Practitioners Act. Wallace's case (supra) was not a decision on any statutory provision such as we have in the Legal Practitioners
Act or the Bar Councils Act.
10. For the reasons stated above and in view of the conduct of the Advocate seen in the light of the surrounding circumstances we are
clearly of opinion that the Advocate should, by reason of his having indulged in conduct unworthy of a member of the honourable
profession to which he belongs, be suspended from practice for some time. He is an Advocate of this Court and according to a majority
decision of this Court he is entitled, under the Supreme Court Advocates (Practice in High Courts) Act, to exercise his profession in all
Courts throughout the Union of India. Any suspension for a period less than the period fixed by the Bombay High Court will obviously lead
to serious anomaly and inconvenience. We accordingly direct that the Advocate concerned be suspended from practice for a period co-
terminous with the period of suspension fixed by the Bombay High Court, namely, up to the 13th October, 1956.
 18

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

Equivalent citations: 1964 AIR 244, 1964 SCR (3) 1
Bench: Ayyangar, N Rajagopala
PETITIONER:
P.J. RATNAM
Vs.
RESPONDENT:
D. KANIKARAM AND OTHERS
DATE OF JUDGMENT:
10/04/1963
BENCH:
AYYANGAR, N. RAJAGOPALA
BENCH:
AYYANGAR, N. RAJAGOPALA
SINHA, BHUVNESHWAR P.(CJ)
SHAH, J.C.
CITATION:
1964 AIR 244 1964 SCR (3) 1
CITATOR INFO :
R 1985 SC 28 (30)
ACT:
Professional misconduct--Complaint--Enquiry--Advocate misappropriating client's money--If guilty of professional misconduct--Proceeding
in respect of professional misconduct and proceeding in a criminal Court- Object of-Differentiation-Punishment-Legal practitioners Act,
1879 (18 of 1879), ss. 12, 13--Indian Bar Councils Act, 1926 (38 of 1926), s. 10 (2).
HEADNOTE:
The respondents and one other Kagga Veeraiah, were plaintiffs in a suit for possession of certain lands and the appellant was their
Advocate. Tim suit was dismissed and an appeal was preferred therefrom to the Subordinate Judge. Pending the disposal of the appeal,
the court directed the sale proceeds of the standing crops on the suit land to be deposited into court, and a sum of Rs. 1,600/- was so
deposited. The plaintiff's appeal was allowed and the defendants preferred a second appeal to the High Court. Pending disposal of the
second appeal, plaintiff's application for withdrawing the amount was allowed by the court on furnishing security of immovable property.
A cheque petition was filed which was allowed and thereafter a cheque for Rs. 1,452/4/- was issued in favour of the appellant. The
appellant an Advocate admitted that he had received and. had cashed the cheque on behalf of his clients who were entitled to be paid
this sum. The second appeal was allowed by the High Court and the plaintiff's suit was dismissed, as a result of which the plaintiffs had to
refund the sum of the defendants in the suit. The plaintiffs made a written demand on the appellant for the proceeds of the cheque that
had been cashed by him and not paid over to them. The appellant in reply claimed to have paid over the sum to them on their passing a
receipt which happened to be in the bundle. of case-papers returned to 2
them. The respondents filed a complaint under as. 12 and 13 of the Legal Practitioners Act. The explanation of the Advocate was called for
and the District Judge was directed to hold an enquiry and forward his report to the High Court. His report was that the appellant's case
was not unbelievable and he was entitled to the benefit of doubt. The matter was heard by a Bench of three Judges of the High Court,
who held him guilty of professional misconduct and suspended him for five years from practice. In this Court the appellant contended, (1)
that the Bar Council had not been consulted before the case was referred to the learned District Judge for inquiry and report and this
vitiated the legality of the entire proceedings against the appellant. (2) That the complaint filed by the respondents on the basis of which
action was taken against the appellant was not shown to have been signed by them, nor properly verified by them as required by the rules
of the High Court. (3) That as in substance the charge against the appellant was misappropriation of moneys belonging to the clients, the
High Court should have left the complainants to their remedy of prosecuting the appellant and should not have proceeded to deal with
him under s. 10 of the Bar Councils Act. (4) That there was a procedural irregularity in the mode in which the case against the appellant
was conducted. (5) That one of the plaintiffs--Kagga Veeraiah had himself admitted in his evidence that he and others had received the
proceeds of the cheque which the appellant had cashed and that in the face of this admission the High Court was clearly wrong in finding
that the appellant had failed to pay over the money to his clients.
Held (1) that the fact that in the order of reference of the proceedings under s. 10(2) of the Bar Councils Act, to the District Judge, there is
no explicit statement that the Bar Council had previously been consulted, is not decisive on the point. There would be a presumption of
regularity in respect of official and judicial acts and it would be for. the party who challenges such regularity to plead and prove his case.
Since, this objection was not raised in the High Court, even when the appellant applied for a certificate, this Court will not entertain this
objection which rests wholly upon a question of fact. (2) The complaint petition had been signed by the respondents and properly verified
and even otherwise since the High Court was competent to initiate these proceedings suo motu under s. 10(2) of the Act, the point raised
is wholly without substance.
(3) There is a clear distinction between cases where the misconduct is one in relation to the practitioner's duty to
3
his client and other cases where it is not so. In the former Class of cases the court would be exercising its discretion properly if it
proceeded to deal with the charge as a piece of professional misconduct without driving the complainant to seek his remedy in a criminal
court. 80 far as the facts and circumstances of the present case are concerned, it must be held, that the High Court was fully justified in
 18

proceeding against the appellant under the provisions of s. 10 of the Bar Councils Act. Chandi Charan Mitter a Pleader, In re. (1920) I.L.R.
47 Cal. 1115 and Emperor v. satish Chandra Singha, (1927) I,L.R. 54 Cal. 721, distinguished.
Stephens v. Hills, [1842] 152 E.R. 368, referred to. (4) No complaint, that the appellant was prejudiced by the manner in which the inquiry
was conducted in the matter of the order in which the evidence was adduced, was made either before the District Judge or before the
High Court and there is nothing on the record to suggest that any prejudice had occurred to the appellant.
(5) The evidence of Kagga Veeraiah was correctly characterised by the High Court as devoid of truth and the appellant, therefore, cannot
rely on any admission of this witness as evidence of the plaintiffs having received the sum.
Having regard to the gravity of the offence, there is no justification for reducing the period of suspension. The appeal therefore, must be
dismissed.
JUDGMENT:
CIVIL APPELLATE JURISDICTION:Civil Appeal No. 321 of 1962.
Appeal by special leave from the Judgment and order dated August 4, 1959 of the Andhra Pradesh High Court in Referred Case No. 29 of
1957..
M. Rajagopalan and K.R. Choudhri, for the appellant. The respondent did not appear.
April 10. The Judgment of the Court was delivered by AYYANGAR J.--This appeal has been filed by special leave of this Court against the
judgment of
4
the High Court of Andhra Pradesh by which the appellant who is an Advocate was held guilty of professional misconduct and had been
suspended from practice for five years. The facts relating to the misconduct charged were briefly these: The three respondents before us
and one other--Kagga Veeraiah--were plaintiffs m O.S. 432 of 1951 on the file of District Munsiff, Guntur in which a claim was made for
possession of certain lands. The appellant was the Advocate for these plaintiffs. The suit was dismissed by the Trail Court and an appeal
was filed therefrom to the Subordinate Judge, Guntur and pending the disposal of the appeal there was a direction by the Court that the
crops standing on the suit-land be sold and the proceeds deposited into Court. In pursuance of this order a sum of about Rs. 1,600/- was
deposited into Court-on December 19, 1951. The appeal by the plaintiffs was allowed by the Subordinate Judge. The' unsuccessful
defendants preferred a second appeal to the High Court, but meanwhile the plaintiffs made an application for withdrawing the amount
deposited in Court. By virtue of interim orders passed by the Court they were granted liberty, to withdraw the sum pending disposal of
the second appeal in the High. Court filed by the defendants on furnishing security of immovable property. The security was furnished
and. the withdrawal was ordered. A cheque petition E.A. 250 of 1952 was accordingly filed which was allowed and thereafter a cheque
was issued in favour of the Advocate--the appellant before us--for Rs. 1,452/4/-, this being the sum remaining to the credit of the plaintiffs
after deduction of poundage etc. It was admitted that this cheque was cashed by the appellant on April 23, 1953. The appellant did not
dispute that. he cashed this cheque on behalf of his clients or that the latter were entitled to be paid this sum and the charge of
professional misconduct against the
5
appellant was that the Advocate had not made this payment in spite of demands but that on the other hand he falsely claimed to have
paid them this sum.
To resume the narrative of the matters leading to these proceedings, the second appeal before the High Court was disposed of in August,
1955 and by the judgment of that Court the appeal was allowed and the plaintiff's suit dismissed. The plaintiffs had therefore to refund
the sum to the defendants in the suit. On February 8, 1956 the plaintiffs made a written demand on the appellant for the sum
complaining that the cheque had been cashed by him but that its proceeds had not been paid over. On April 14, 1956 the appellant
replied to this notice claiming to have paid over the sum to them on their passing a receipt and stating.that the receipt happened to be in
the bundle of case-papers which had been returned to them. But even before the receipt of this reply the three respondents before us
filed a complaint under ss. 12 and 13 of the Legal Practitioners Act alleging the non-payment of the money and charging the Advocate
with professional misconduct in respect of it, and praying for an enquiry into his conduct. The appellant was an Advocate and hence the
complaint was treated as one under s. 10 (2) of the Indian Bar Councils Act, 1926. The explanation of the Advocate was called for. and
thereafter the District. Judge, Guntur was directed. to hold an inquiry into the allegations of professional misconduct against the appellant
and forward his report to the High Court. An elaborate inquiry was thereafter held by the learned District Judge who, after considering the
.evidence, submitted a report recording his conclusion that the appellant's case was not unbelievable" and that on that ground he was
entitled to the benefit of doubt. The matter then came up before the High Court for consideration on this report. Some point
6
appears to have been made before the Court that certain material witnesses had not been examined. Agreeing with the submission they
directed the District Judge to summon and examine them and this was accordingly done, their evidence was recorded and submitted to
the High Court. The matter was thereafter heard by a Bench of 3 Judges and the learned Judges being of the opinion that the charge
against the appellant viz., that he did not pay over the amount of 'the cheque to his clients was clearly made out, held him guilty of
professional misconduct and imposed the punishment of suspension from practice, as stated earlier. The appellant then applied and
obtained leave of this court--special leave under Art. 136 to challenge the correctness of these findings and that is how the matter is
before us.
Before proceeding further we desire to indicate the nature of the jurisdiction of this Court in such matters and in broad outline the
principles which it would observe in dealing with them. The jurisdiction exercised by the High Court in cases of professional misconduct is
neither civil nor criminal as these expressions are used in Arts. 133 and 134 of the Constitution. In one aspect it is a jurisdiction over an
officer of the Court and the Advocate owes a duty to the Court apart from his duty to his clients. In another aspect it is a statutory power
and we would add a duty vested in the Court under s. 10 of the Bar Councils Act to ensure that the highest standards of professional
rectitude are maintained, so that the Bar can render its expert service to the public in general and the litigants in particular and thus
discharge its main function of co-operating with the judiciary in the administrance of justice according to law. This task which is at once
delicate and responsible the statute vest in the High Court and therefore the primary responsibility of ensuring it rests with it,
 18

7
This Court is in consequence most reluctant to interfere with the orders of High Courts in this field, save in exceptional cases when any
question of principle is involved or where this Court is persuaded that any violation of the principles of natural justice has taken place or
that otherwise there has been a miscarriage of justice. Where however none of these factors, are present, it is not the practice of this
Court to permit the canvassing of the evidence on the record either for reappraising it or to determine whether it should be accepted or
not. The findings of the High Court therefore on questions of fact are not open before us and this Court would only consider whether on
the facts found, the charge of professional misconduct is established.
Learned Counsel for the appellant urged before us several grounds in support of the appeal but we consider that none of them merits
serious attention. It was first submitted that the Bar Council had not been consulted before the case was referred to the learned District
Judge for inquiry and report and that this vitiated the legality of the entire proceedings against the appellant. Our attention was drawn to
the terms of s. 10 (2) of the Indian Bar Councils Act reading:
"10. (2) Upon receipt of a complaint made to it by any Court or by the Bar Council, or by any other person that any such Advocate has
been guilty of misconduct, the High Court shall, if it does not summarily reject the complaint, refer the case for inquiry either to the Bar
Council, or, after consultation with the Bar Council, to the Court of a District Judge (hereinafter referred to as a District Court) and may of
its own motion so refer any case in which it has otherwise reason to believe that any such advocate has been so guilty."
and the argument was that the matter could not have been remitted for inquiry to a District Judge
8
unless the. statutory pre-condition of consultation. with the Bar Council had taken place. It is not necessary to consider in this case
whether this provision for consultation is mandatory or not but we shall assume that it is so. There was however no hint of this objection
to the validity of the proceedings up to the stage of the appeal in this Court. The question whether there has or has not been a
consultation is one of fact and if this point had been raised in the High Court we would have information as to whether there had been
such consultation or not, and if not why there was none. Even when the appellant applied to the High Court for a certificate of fitness
under Art. 133 (1)(c) this objection was not suggested as a ground upon which the validity of the proceedings would be impugned. In
these circumstances we are not disposed to entertain this objection which rests wholly upon a question of fact. The fact that in the order
of reference of the proceedings under s. 10 (2)to the District Judge there is no explicit statement that the Bar Council had previously been
consulted is not decisive on the point. There would be a presumption of regularity in respect of official and judicial acts and it would
before the party who challenges such regularity to plead and prove his case. It was next contended that the complaint filed by the
respondents on the basis of which action was taken against the appellant was not shown to have been signed by them, nor properly
verified by them as required by the rules of the High Court. We consider this objection frivolous in the extreme. It was argued by the
appellant before the High Court that there was dissimilarity between the several signatures of the three respondents found in the petition
sent by them and that to be found in the plaint etc., of O.S. 432 of 1951 and that this was some proof that it was not the respondents who
were
9
really responsible for the petition but that someone inimically disposed towards the appellant. The learned Judges of the High Court
rejected this submission in these words:
"For one thing, we are unable to find any such dissimilarity. Even so, that has not much of a bearing on the question whether the
respondent (appellant) had discharged the burden viz., of proving that he had made the payment to the petitioners. This argument would
have had some force if the petitioners had not given evidence against the respondent. Further, no such suggestion was put to any of the
plaintiffs."
This is on the question of the dissimilarity of the signatures on which rests the argument that the respondents were not the complainants.
Coming next to the point about the verification of the complaint the matter stands thus: The three complainants (the respondents before
us) originally filed a petition on March ?6, 1956 before the District Judge but this did not bear the attestation of a gazetted officer or other
authority as required by the rules. This defect was made good by a fresh petition which they filed before the District Judge on April 16,
1956. After the petition was signed by the three petitioners they added a verification in these terms: "We do hereby state that the facts
stated above are true to the best of our knowledge, information and belief,"
and then they-signed again. These three signatures, they made before the District Judge who attested their signatures on the same day
and when for-. warding this complaint to the High Court on
10
April 18, 1956 the learned District Judge stated these facts and added:
"The petitioners appeared before me on April 16, 1956. I got them sign the petition in my presence and I attested the same."
It is thus clear that they made three signatures in token of their signing the petition, the verification and a further affirmation before the
District Judge who attested the same. Learned Counsel did not suggest before us that the District Judge was in error about the identity of
the parties who appeared before him and affixed the signatures in three places in the complaint before him. It is because of these
circumstances that we have stated that this objection was most frivolous. It is only necessary to add that seeing that the High Court is
competent to initiate these proceedings suo motu under s. 10 (2) the point raised is wholly without substance.
The next submission of learned Counsel was that as in substance the charge against the appellant was misappropriation of money
belonging to the clients, the learned Judges of the High Court should have left the complainants to their remedy of prosecuting the
appellant and should not have proceeded to deal with him under s. 10 of the Bar Councils Act. In support of this submission learned
Counsel referred us in particular to two decisions of the Calcutta High Court reported in Chandi Charan Mitter, a Pleader, In re (1), and
Emperor v. satish Chandra Singha (2).
We do not consider that the case before us furnishes an occasion for any exhaustive review of the decisions upon the subject or
formulating finally the principles which govern the exercise of the discretion by a Court to which a complaint is made under s. 10 of the
Bar Councils Act whether it should
(1) (1920) I.L.R.47 Cal. 1115. C2) (1927) I.L.R. 54 Cal,
 18

721.
11
proceed under it or leave the complainant to launch a prosecution against the advocate and await the result of such criminal proceedings.
We consider it sufficient to state this. The object of a proceeding in respect of professional misconduct differs totally from the object of a
proceeding in a criminal court. Proceedings under the Bar Councils Act and similar statutes arc taken in order to.ensure that the highest
standards of professional conduct arc maintained at the bar. These proceedings, though in a sense penal, arc solely designed for the
purpose of maintaining discipline and to ensure that a person does not continue in practice who by his conduct has shown that he is unfit
so to do. It is not a jurisdiction which is exercised in aid of the Criminal law for the only question for the court to consider is whether the
practitioner has so misconducted himself as no longer to be permitted to continue a member of an honourable and responsible
profession. The object of Criminal proceedings, on the other hand, is to enforce the law of the land and to secure the punishment of an
offender. No doubt, if a criminal prosecution is initiated in respect of the subject matter of the complaint and the charge is held proved
the conviction might be a ground for a later proceeding under the Bar Councils Act. No doubt, also, if the practitioner is acquitted or
discharged by a criminal court on the merits, the facts would not be reinvestigated for the purpose of rounding a charge of professional
misconduct on those very facts. The object of the two proceedings being thus different, it is not any rule of law but merely a matter .of
discretion depending on the facts of each case as to whether the Court would straightaway proceed to enquire into the allegation of
professional misconduct or leave it to the complainant to prosecute the practitioner and await the result of such a proceeding. It was not
suggested by Counsel for the appellant that it was incompetent for or 12
beyond the jurisdiction of the Court, 'to proceed with an enquiry in a case where the misconduct charged against the advocate or
practitioner amounted to an offence under the ordinary criminal law. Neither of the cases relied on lay down any such proposition and is
not of much assistance to the appellant in the present case. It is sufficient to extract the head-note to the report of the decision in Chandi
Charan Mitter (x), indicate that it bears no analogy to the case now on hand. The relevant portion of the head- note reads:
"Where the misconduct alleged has no direct connection with the conduct of the pleader in his practical and immediate relation to the
court, ordinarily, there should be a trial and conviction for criminal misconduct before disbarment will be Ordered."
The charge against the practitioner in that case related to a matter which had nothing to do with his relationship to his clients, or the
court, and in the circumstances it was held that the direction would be properly exercised if the initiation of professional misconduct
proceedings awaited the result of the prosecution. It is obvious that the case before us is far different. Emperor v. Satish Chandra Singha
(2), was also a similar case. The charge against the practitioner was of forging court records by interpolating some words in an original
plaint. In the case now before us, however, the misconduct charged is intimately connected with and arises out of the duty which the
Advocate owed to client. This distinction between misconduct which is intimately connected with the duties which the practitioner owes
to his clients and cases where it is not so connected as bearing upon the exercise of the Court's discretion to proceed or not to proceed
straightaway with an inquiry into the advocate's professional misconduct was emphasised by Lord (1) (1920) I.L.R, 47 Cal, 1115, (2)
(1927)I.L. R. 54 Cal, 721,
13
Abinger in stephans (1), which dealt with case of professional misconduct against an attorney in England. The learned Judge said:
"If the attorney has been guilty of something indictable in itself but not arising out of the cause (in which he is engaged professionally) the
Court would not inquire into that with a view to striking him off the roll but would leave the party aggrieved to his remedy by a criminal
prosecution."
There is thus a clear distinction between cases where the misconduct is one in relation to the practitioner's duty to his client and other
cases where it is not so. In the former class of cases the court would be exercising its discretion properly if it proceeded to deal with the
charge as a piece of professional misconduct without driving the complainant to seek his remedy in a Criminal Court. So far as the facts of
the present case are concerned the appellant got his client's money in his hands in the course of the proceedings of a suit in which he was
engaged and the charge against him was that he failed to repay the money. In the circumstances we consider that the High Court was fully
justified in proceeding against the appellant under the provision of s. 10 of the Bar Councils Act.
The next complaint of the learned Counsel was that there was a procedural irregularity in the mode in which the case against the
appellant was conducted. This was said to consist in the fact that some evidence on behalf, of the complainants (the respondents before
us)was permitted to be led after the appellant had examined himself and it was urged that thereby the complainants had been afforded
opportunity of filling up any lacuna in their case. We consider that there is no substance in this objection. No complaint that the appellant
was
14
prejudiced by the manner in which the inquiry was conducted in the matter of the order in which the evidence was adduced, was made
either before the District Judge who conducted the inquiry or before the High Court when the report of the District Judge was considered.
We have ourselves examined the record and find that there is no basis for any suggestion that any' prejudice had, occurred by reason of
the order in which the witnesses were examined. It was then suggested that one of the plaintiffs-Kagga Veeraiah--had himself admitted in
his evidence before the District Judge that he and others had received the proceeds of the cheque which the appellant had cashed and
that in the face of this admission the learned Judges of the High Court were clearly wrong in finding that the appellant had failed to pay
over the money to his clients. A few facts have to be mentioned to appreciate this contention as well as the answer to it. As stated earlier,
there were four plaintiffs in the suit--O.S. 432 of 1951 and plaintiffs. 1 to 3 are the complainants--now respondents 1 to 3 before us. The
fourth plaintiff was one Kagga Veeraiah. It was the case of the appellant that this money , was paid to all the four plaintiffs i.e., was paid to
the plaintiffs when all the four of them were present. It was the case of the complainants that Kagga Veeraiah--the 4th plaintiff died in
1957. It was m these circumstances that the appellant alleged that Kagga Veeraiah was alive and a man claiming to be Kagga Veeraiah was
produced before the District Judge who examined him as court witness No. 7. The man who was examined did depose that the money
was paid to the plaintiffs in his presence and, no doubt, if that statement along with the identity of the deponent was accepted the
appellant's defence would have been made out. The case of the complainants, however, was that the man examined as court witness No.
7 was an impersonator. To prove the; death of the
 18

15
real Kagga Veeraiah an extract from the death certificate was produced in court by the complainants. The attention of court witness No. 7
was drawn to the fact that in another proceeding (0. S. 732 of 1955) to which Kagga Veeraiah was a party a memo was filed into Court
stating that he was dead. The witness's explanation for this was that as he was not available the memo to that effect was filed. The
witness was severely cross examined about his identity and in particular, questioned about the details of the parties and other details
regarding the subject-matter of O.S. 432 of 1951 and his answers were most unsatisfactory, to say the least. The Learned Judges of the
High Court considered all this evidence and recorded two alternative findings :(1) that the person examined as C.W. 7 was not Kagga
Veeraiah but was an impersonator seemed to accord with the probabilities, and (2) that even if C.W. 7 be in truth Kagga Veeraiah as he
claimed, they would not accept his evidence as there was not 'even a modicum of truth in his deposition' and they would unhesitatingly
reject it. The submission, however, of learned Counsel was that there was before the High Court the thumb impression of this witness to
his deposition before the District Judge as C.W. 7 and the thumb impression of the 4th plaintiff in O.S. 432 of 1951 and that on a
comparison of these two the court should have accepted the identity of C.W. 7 as Kagga Veeraiah--the 4th plaintiff. It is really not
necessary to pursue this matter or the details of the evidence relating to it because there is no ground at all for interfering with the
appreciation by the learned Judges of the High Court of the credibility of this witness's deposition apart altogether from the question as
to whether Kagga Veeraiah was dead and if he was not, whether C.W. 7 was Kagga Veeraiah. The admissions that this witness made and
the ignorance that he displayed about the proceedings in the suit stamped him as a witness of untruth and the learned Judges correctly
characterised his evidence
16
as devoid of "even a modicum of truth." The appellant cannot therefore rely on any admission on the part of this witness as evidence of
the plaintiffs having received the sum which was admittedly in his hands.
Lastly, it was urged that the order directing the suspension of the appellant for a period of five years was too severe and that we should
reduce the period of suspension even on the basis that the charge against the appellant be held to be established. We can only express
surprise that Counsel should have made bold to make this submission. The appellant had got into his hands a considerable sum of money
belonging to his clients and, on the finding of the High Court, had failed to, pay it back when demanded. Not content with this he had put
forward a false defence of payment and had even sought to sustain his defence by suborning witnesses. In the circumstances, even, if the
learned Judges of the High Court had struck off the name of the appellant from the roll of advocates we would have considered it a proper
punishment having regard to the gravity of the offence. The order now under appeal therefore errs, if at all, on the side of leniency and
there is no justification for the request made on behalf of the appellant.
The appeal fails and is dismissed.
 18

3.N.B. Mirzan vs The Disciplinary Committee Of The ... on 15 September, 1971

Equivalent citations: AIR 1972 SC 46, (1972) 4 SCC 412, 1972 (4) UJ 164 SC
Author: D Palekar
Bench: S Sikri, D Palekar, A Ray
JUDGMENT
D.G. Palekar, J.
1. This is an appeal under Section 38 of the Advocates Act, 1961. The appellant, Mr. N.B. Mirzan, was an Advocate on the roll of the Bar
Council of Maharashtra. On 27th October, 1964, respondent No. 2, who was once the client of the appellant, made several allegations of
professional misconduct against the appellant which were referred by the State Bar Council to its Disciplinary Committee consisting of
three Advocates, one being the Committee's Chairman and the other two its members. After a detailed inquiry into the allegations, the
Disciplinary Committee came to the conclusion that professional misconduct had been established on three counts which involved moral
turpitude. The Commitee, therefore, directed on 3rd October, 1968 that the appellant should be suspended permanently and should not
be allowed to appear before any Court, authority or person in India. He was also directed to surrender his Sanad forthwith. From this
order, an appeal was filed to the Bar Council of India, being Appeal No 9 of 1968. The appeal was heard by the Disciplinary Committee of
the Bar Council of India consisting of a Chairman and two members. On 30th November, 1969, by a detailed order, the Disciplinary
Committee confirmed the findings of the State Disciplinary Committee but, as regards the punishment, it directed that the appellant be
suspended from practice for a period of five years and to pay to Respondent No. 2 a sum of Rs. 850/-within two months. It was further
directed that, if the amount was not paid, the punishment imposed by the State Disciplinary Committee striking out the appellant's name
from the roll of Advocates would stand confirmed. It is from this Order that the present appeal has been filed.
2. Respondent No. 2, Saidur Rehman, engaged the appellant as his Advocate in an obstructionist notice issued to him by the Presidency
Small Cause Court, Bombay, in R.A.E. Suit No. 2491 of 1961. Respondent No 2 had been introduced to the appellant by one Noor
Mohammed who was a client of the appellant. At the time of his engagement, no fees as such were paid, but a sum of Rs. 190/-was
demanded by the appellant for court-fee stamps and that amount was paid to the appellant Thereafter, on 26th April, 1962, the appellant
demanded from respondent No. 2's wife, Khurshid Begum, a sum of Rs. 975/-on the representation that the amount was required for
deposit in the above suit byway of rent. A Receipt was issued by the appellant for this amount and it is Ext. A. On 16th August, 1962, the
appellant demanded a further sum of Rs 250/-representing that this amount was necessary for payment to some Judge or officer for
getting the rent bill transferred in the name of respondent No. 2 in respect of the premises which were the subject-matter of the above
suit. In respect of this payment also, the appellant issued a Receipt dated 16th August, 1962 which is Ext. B.
3. The constructionist notice was discharged on 13th September, 1962, the order being in favour of respondent No. 2.
4. Thereafter, the landlord filed Suit No. 3402 of 1963 in the City Civil Court, Bombay against respondent No. 2 and his brother for
ejectment and mesne profits In this suit also, the appellant was engaged by respondent No. 2 as his Advocate. A written statement was
filed admitting that no rent had been paid by respondent No. 2 to his landlord from May, 1961 onwards. In view of this admission, the City
Civil Court passed an order directing respondent No. 2 to deposit in Court the amount due for arrears of rent from May, 1961 to
September, 1963. This order was passed on 25th September, 1963. The amount was to be paid within two months from that date. Since
respondent No. 2's wife had already paid F". 975/-to the appellant on 26'h April, 1962 and the amount was more than sufficient for
making the deposit in accordance with the order of the City Civil Court, respondent No. 2 remained under the impression that the deposit
would be made by the appellant in due course. In January, 1964, the appellant gave a notice to respondent No. 2 to come with the money
for the purposes of deposit and this started the whole trouble, ending with the complaint by respondent No. 2 in the State Bar Council on
27th October, 1964. It appears that, before filing this complaint, notices were exchanged between the parties and a settlement was
brought about between the appellant and respondent No. 2 and, under this settlement, the appellant undertook to pay to respondent
No. 2 Rs. 1,000/-by instalments of Rs. 160/-per month. The appellant sent the first instalment of Rs. 150/-by money order on 11th
October, 1964 The case of the appellant in respect of this money order, however, was that the money order had been sent to respondent
No 2, as respondent No. 2 had asked for a loan and the appellant took pity on him in spite of the strained relations between the parties.
5. Chronologically, the three items of payments in respect of which we have before us concurrent findings of professional misconduct are
as follows :
(1) Demand and receipt by the appellant of Rs. 190/-from respondent No. 2 on the representation that the amount was required for
purchasing court fee stamps in suit R.A.E. No. 2491/1961. There was no formal receipt issued in respect of this amount.
(2) Demand and receipt by the appellant of Rs 975/-from respondent No. 2's wife on 26th April, 1962. The Receipt issued by the appellant
is Ext. A and reads as follows:
Received from Smt. Khurshid Begum sum of Rs. 975/-to be paid in small causes Court in Suit No. 2491/62 including expenses rent and
deposit in the above matter.
3. Demand and receipt by the appellant of Rs. 2.10/-from respondent No. 2 on 16th August, 1962 Ext. is the formal Receipt given by the
appellant on that date and it reads as follows :
Received from Shri Saidul Rehman the sum of Rs 250/-for transferring the rent bill in his name in Civil Suit No. 2491/61 of Small Causes
Court.
In respect of all these three payments, respondent No. 2 alleged that these several payments had been made to the appellant on the
representations made by him which respondent No. 2 and his wife, in their ignorance, thought were bona fide demands But, later they
realised that the demand for Rs. 190/-to purchase court fee stamps was a false demand, because no court fee stamps were necessary to
be paid by respondent No 2 in an obstructionist notice. Similarly the second demand of Rs. 975/-for depositing the amount in court was a
false demand, because no order could possibly be passed by the Court asking an obstructionist to make deposit in Court towards rent. The
third demand of Rs. 250/-was also a false demand, because there could be no proceedings for transferring the rent bill in the name of
respondent No. 2 in the absence of any negotiations with the landlord. It was the allegation of respondent No. 2 that taking advantage of
 18

the ignorance and illiteracy of respondent No. 2 and his wife, the appellant had demanded and received all these amounts with a view to
misappropriate the same.
6. So for as the first count of Rs. 190/-is concerned, there was no specific denial of the receipt of this amount by the appellant in his
written statement. In his evidence the appellant tried to explain that no specific denial was made in the written statement, because he
had stated in his written statement that for every payment received he had given a receipt and he had, therefore, impliedly denied the
demand and receipt of Rs. 190/-since, admittedly, there was no formal receipt for it. This explanation has been rejected by both the
Disciplinary Committees. Respondent No. 2 examined Noor Mohammed as his witness in the case and Noor Mohammed has supported
respondent No. 2's statement that he had paid Rs. 190/-to the appellant. Noor Mohammed was a former client of the appellant and it
was Noor Mohammed who had introduced respondent No. 2 to the appellant when the obstructionist notice was issued by the Court to
respondent No 2 After his engagement as Advocate, the appellant, according to Noor Mohammed, demanded Rs 190/-for purchasing
court fee stamps and, therefore, respondent No 2 in his presence paid Rs 190/-to the appellant. In support of this, Noor Mohammed
produced 4 page in his diary in which he had noted that the appellant hid been paid Rs. 190/. for stamps. Both the Disciplinary
Committees saw no reason why Noor Mohammed a previous client of the appellant, should give false evidence against him. Some sort of
confusion was sought to be introduced by the appellant by referring to an endorsement on Ext. B to the effect that a sum of Rs. 190/-had
been received by way of fees and expenses in the suit. But this endorsement is made by the appellant on 18th September, 1962, i.e., after
the obstructionist notice was discharged and it has nothing to do with the payment of Rs. 190/-made to him at the beginning of his
engagement as an Advocate which, according to the State Disciplinary Committee, was in 1961. We are, therefore, satisfied that the
appellant had demanded and received Rs. 190/-for the purchase of court fee stamps in the beginning of his engagement as an Advocate,
though, in fact, he did not have to purchase any court fee stamps.
7. Coming to the second item of Rs. 975/-there is no dispute that the appellant had demanded and received this amount on 26th April,
1962 from respondent No. 2's wife, Smt. Khurshid Begum. The Receip-Ext. A itself goes to show that the amount had been received by the
appellant for making a deposit in Court against expenses or rent. It is further admitted by the appellant that no order had been made by
the Court for the deposit of rent and it is clear to anybody knowing court proceeding that, in a proceeding by the landlord to remove
obstruction, there can be hardly any occasion for the Court to make an order against the obstructionist to pay rent in Court. Then again, if
any such order were made by the Court, the Court would normally give the obstructionist time to make payment and the appellant could
then have asked his client to bring the money for the deposit The obstructionist proceeding was pending on 26th April, 1962 and it was
actually disposed of in favour of respondent No. 2 in September, 1962. Admittedly, there was no interim order to making any deposit
Therefore, there was really no occasion at all on 26th April, 1962 for the appellant making a demand for the amount from respondent No
2's wife and receiving the same for the ostensible purpose of depositing the amount in Court. It is obvious that he obtained this amount
on a false pretext and, when such a demand is made on a false pretext, the inference Would naturally follow that the demand had been
made with a view to missappropriate the amount.
8. Having received the amount and missappropriated the same, the appellant put forward the defence that this amount had been actually
returned to respondent No. 2 on 13th September, 1963 in the court premises when the Obstructionist notice was discharged. In support
of this, the appellant produced an alleged Receipt Ext. 2 Both the Disciplinary Committees were inclined to the view that this was a
suspicious document if not a false document. In the first place, the appellant would not normally be expected to have such a large amount
on his person on 13th September, 1963 when the obstructionist notice was discharged. The amount had been paid to him on 26th April,
1962 and it is impossible to accept his story that, on every occasion when the proceedings were taken up in Court, he was carrying this
amount with him on his person, so that, if an order was made for a deposit the amount would be immediately deposited and, if the notice
was discharged, he would be in a position to return the amount to respondent No. 2. The Receipt Ext. 2 is on a full sheet of ledger or
cartridge paper. We have seen the document ourselves and we have no doubt at all that its very appearance shows that it is a suspicious
document. At the bottom of the paper, three thumb impressions have been obtained one below the other, one of respondent No. 2,
another of his wife, and the third of his brother, Fazal Nakimullah. Above these thumb impressions, the Receipt is drawn up entirely in the
handwriting of the appellant himself. When respondent No. 2 was shown this document during the course of the inquiry, he was unable
to say whether the thumb impression supposed to be his was his thumb impression. No attempt was made to prove by expert evidence
that it was respondent No. 2's thumb impression. Respondent No. 2, however, admitted that, when demanded by the appellant, he had
put his thumb impression on a blank cartridge paper as he had to go to Moradabad, his native place, leaving his wife behind to look after
the litigation. In other words, the suggestion of respondent No. 2 was that the appellant took his thumb impressions on blank papers, so
that they could be used during his absence for the purpose of the litigation. Ordinarily, a Receipt for payment of money would not be
written on a cartridge or ledger paper and there is force in the evidence of respondent No. 2 that he had put his thumb impression on
some blank ledger paper for being used in the course of the proceeding in Court. Now, if Rs. 975/-were returned to respondent No 2 in
the court premises themselves, there would be no good reason why the receipt should be thumb-impressed by two other persons be ides
respondent No. 2. Respondent No. 2's wife was there and one could understand if the appellant had taken a Receipt from her, because it
was she who had made the payment. But the strange thing about the document is that the thumb impression of the wife Khurshid Begum
has been duly cancelled by the appellant in his own handwriting. It will be further noted thal, underneath the alleged thumb mark of the
brother Fazal Hakimullah and opposite the endorsement "L.T.I, of, ''the original letters on which there is heavy overwriting, is the
endorsement Fazal Hakimullah. One other curious feature of this Receipt is that the thumb impressions are supposed to be attested by
two witnesses, one Khan Saheb and one Miss Lizza pias. Khan Saheb has not been examined and it is clear from what the State
Disciplinary Committee has stated that Miss Lizza Pias was not an independent witness. She had been seen almost every day outside the
Bar Council Office when the Stale Disciplinary Committee met in connection with the present proceedings. She, however, admitted that
she had not seen the appellant paying the amount to respondent No. 2, nor did she read the paper she signed as a witness and further
admitted that she was not aware of the contents of that writing. Both the Disciplinary Committee have held that Ext. 2 was not a genuine
document and we are satisfied that this finding is correct.
9. Corroboration is further found in what happened later in 1964 after dispute started between respondent No 2 and the appellant. In
about October, 1964, the disputes, according to respondent No. 2, were settled in he presence of one Mr. Qureshi and the appellant
 18

agreed to pay Rs 1000/-to respondent No. 2 by instatements of Rs 150/-per month. Accordingly, the first instalment was sent to
respondent No. 2 by money order on 11th October, 1964, and it is admitted by the appellant that he had sent the money order for Rs.
150/. He, however, explained that respondent No. 2 along with a social worker had seen the appellant on 10th October, 1964 and
requested him or a loan. Out of pity, the appellant says, he sent the money order in question by way of loan on 11th October, 1964. The
explanation was regarded by both the Committee as false, because under the circumstances of the case and in vie of the bitter disputes
between the parties, it was extremely unlikely that the appellant would make any loan to respondent No 2. On the other hand, Shri
Nardan Ali Qureshi has corroborate respondent No. 2 and settled that in his presence the dispute had been settled between the appellant
and respondent No. 2 and the appellant had agreed to pay the amount of Rs. 1000/-in instalments of Rs. 150/-per month. The story of the
loan has been rejected by both the Committees and the evidence of respondent No. 2 and Quereshi has been accepted, in which case it is
impossible to believe that the appellant had returned the sum of Rs. 975/-to respondent No. 2 as far back as 13th September, 1962. We,
therefore, agree with the concurrent finding of both the Committees that the appellant had demanded and received Rs. 975/-from
respondent No. 2's wife Khurshid Begum on a false representation that the amount was required to be deposited in Court and thereafter
misappropriated the same.
10, The third item is of Rs. 250/-. There is no dispute that this amount was received by the appellant either from respondent No. 2 or his
wife. Respondent No. 2 says that it was received from his wife during his absence. The receipt Ext. B, however, is made in the name of
respondent No. 2. The contents of the Receipt themselves go to support respondent No. 2's case that this amount had been paid, because
the appellant had represented that the amount was required for transferring the rent bill in respect of the premises in the name of
respondent No.
2. The amount was received by the appellant on 16th August, 1962, i.e. much before the obstructionist notice had been discharged. The
appellant had great difficulty in explaining what this Receipt meant. In the notices exchanged in 1964, the appellant had denied altogether
having received this sum of Rs. 250/-for the purpose of the transfer of the rent bill. In the written statement before the State Disciplinary
Committee, the appellant did not categorically deny the receipt of Rs. 250/-. He suggested there that he had been instructed by
respondent No. 2 to file a declaratory suit for transferring rent bill in his name. One does not know what this really means. The
obstructionist proceedings were still pending and one does not know what kind of proceedings could be taken in a court of law for
transferring the rent bill. It is not the case that there were any negotiations with the landlord for transferring the rent bill in the name of
respondent No.
2. Then again, if any such suit was to be filed, the appellant and his client would have thought about it only after the obstructionist
proceedings had come to an end and not in August, 1962. In his evidence, the appellant stated that this amount of Rs. 250/-had been paid
to him by respondent No. 2 of his own accord and the appellant had never suggested that any declaratory suit was required to be filed.
This is rather a tall story. Seeing that the story was unconvincing, the appellant changed his case later and started that this sum of Rs.
250/-was paid to him towards the court-fees in respect of the intended declaratory suit, his fees and other pocket expenses. That
explanation is also false, because it is nobody's case that any such declaratory suit was ever filed. It is, hence, clear that the appellant was
not at all able to explain why he demanded this amount of Rs. 250/-. The conclusion is irresistible that he must have represented that this
amount was required to pay somebody for the purposes of transferring the bill of the suit premises in the name of respondent No. 2,
knowing quite well that it was impossible to secure a transfer of the rent bill in legal proceedings in court. The amount had been screwed
out by the appellant on a false representation for the purposes of misappropriation. In our opinion, the findings of both the Disciplinary
Committees were right and unexceptionable. Normally, this Court does not entertain an appeal from a concurrent finding of facts. We
have, however, gone through the facts to satisfy ourselves that no injustice has been done.
11. The State Disciplinary Committee had permanently debarred the appellant from practising as an Advocate, but, in appeal, the
Disciplinary Committee of the Bar Council of India has taken a more lenient view and suspended the appellant from practice for a period
of five years on condition that he pays respondent No. 2 Rs. 850/-within two months. No argument was addressed to us on the question
of punishment. Therefore, it is not necessary to consider the point.
In the result, the appeal fails and is dismissed with costs
 18

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

DATE OF JUDGMENT04/10/1978
BENCH: KRISHNAIYER, V.R.
BENCH: KRISHNAIYER, V.R. DESAI, D.A. SEN, A.P. (J)
CITATION: 1979 AIR 281 1979 SCR (1)1054 1979 SCC (1) 308
CITATOR INFO : R 1983 SC 990 (10) R 1985 SC 28 (30)
ACT: Judicial legislation, meaning of-Punishment under Sec. 35(3) of the Advocates Act, 1961, applying the principle of legislation.
Appeal-Appeal under Sec. 38 of the Advocates Act, 1961, interference of the Supreme Court.
Disciplinary proceedings-Disciplinary proceedings under the Advocates Act, 1961-Nature and proof of. Professional ethics of a member of
legal fraternity- Relations between a lawyer and a client explained.
HEADNOTE:
The appellant was found guilty of gross professional misconduct by the Disciplinary Committee II of the State Bar Council, Tamil Nadu and
was therefore, debarred from practice as an Advocate for a period of six years. In appeal, the Bar Council of India upheld the said findings
but reduced the period of suspension to one year. Dismissing the appeal, the Court
Per Iyer, J. (on behalf of Desai, J. and himself) ^
HELD: 1. Punishment has a functional duality-deterrence and correction. But conventional penalties have their punitive limitations and
flaws, viewed from the reformatory angle. A therapeutic touch, a correctional twist, and a locus penitentiae, may have rehabilitative
impact if only Courts may experiment unorthodoxly but within the parameters of the law. [1057 F-G; 1058 E]
When the Constitution under Art. 19 enables professional expertise to enjoy a privilege and the Advocates Act confers a monopoly, the
goal is not assured income but commitment to the people whose hunger, privation and hamstrung human rights need the advocacy of the
profession to change the existing order into a Human Tomorrow. [1058 B-C]
Justice has correctional edge a socially useful function especially when the delinquent is too old to be pardoned and too young to be
disbarred. Therefore, a curative not cruel punishment has to be designed in the social setting of the legal profession. Punishment for
professional misconduct is no exception to this 'social justice' test. [1058 A, E]
In the present case, therefore, the deterrent component of the punitive imposition persuades non-interference with the suspension from
practice reduced 'benignly at the appellate level to one year. From the correctional angle a gesture from the Court may encourage the
appellant to turn a new page. He is
1055
not too old to mend his ways. He has suffered a litigative ordeal, but more importantly he has a career ahead. To give him an opportunity
to rehabilitate himself by changing his ways, resisting temptations and atoning for the serious delinquency, by a more zealous devotion to
people's cause like legal aid to the poor may be a step in the correctional direction.[1058 E-G]
2. Judicial legislation is not legislation but application of a given legislation to new or unforeseen needs and situations broadly falling
within the statutory provision. In that sense, interpretation is inescapably a kind of legislation. Legislation is not legislation stricto sensu
but application and is within the Court's province. So viewed the punishment of suspension under Sec. 35(3) of the Advocates Act serves
two purposes-injury and expiation. The ends of justice will be served best in this case by directing suspension plus a provision for
reduction on an undertaking to this Court to serve the poor for a year. Both are orders within this Court's power [1060 F-H]
3. Section 35(3) has a mechanistic texture, a set of punitive pigeon holes, but words grow in content with time and circumstance, that
phrases are flexible in semantics and the printed text is a set of vessels into which the Court may pour appropriate judicial meaning. That
statute is sick which is allergic to change in sense which the times demand and the text does not countermand. That Court is superficial
which stops with the cognitive and declines the creative function of construction. 'Quarrying' more meaning is permissible out of Sec.
35(3) and the appeal provisions in a brooding background of social justice sanctified by Art. 38 and of free legal aid enshrined by Art. 39A
of the Constitution.
[1059 A-B]
Per Sen (J)
In an appeal under Sec. 38 of the Advocates Act, 1961 the Supreme Court would not, as a general rule interfere with the concurrent
findings of fact by the Disciplinary Committee, Bar Council of India and the State Bar Council unless the findings is based on no evidence
or it proceeds on mere conjecture and unwarranted inferences. [1066 G-H] When 'a lawyer has been tried by his peers' the Supreme
Court cannot interfere in an appeal with the finding in such a domestic enquiry merely because on a re-appraisal of the evidence a
different view is possible. In the facts and circumstances of the case, no other conclusion is possible than the conclusion reached. There is,
therefore no ground for interference with the finding of the Disciplinary Committee of the Bar Council of India. [1067 C-D]
2. Disciplinary proceedings before the State Bar Council are sui generis, are neither civil nor criminal in character and are not subject to
the ordinary criminal procedural safeguards. The purpose of disciplinary proceedings is not punitive but to inquire, for the protection of
the public, the Courts and the legal profession into fitness of the subject to continue in the capacity of an advocate. Findings in
disciplinary proceedings must be sustained by a higher degree of proof than that required in civil suits, yet falling short of the proof
required to sustain a conviction in a criminal prosecution. There should be convincing preponderance of evidence. That test is clearly
fulfilled in the instant case.
[1067-A-B]
3. It is not in accordance with professional etiquette for one advocate to hand over his brief to another to take his place at a hearing
(either for the whole or 1056
part of the hearing), and conduct the case as if the latter had himself been briefed, unless the client consents to this course being taken.
Counsel's paramount duty is to the client; accordingly where he forms an opinion that a conflict of interest exists, his duty is to advise the
 18

client that he should engage some other lawyer. It is unprofessional to represent conflicting interests, except by express consent given by
all concerned after a full disclosure of the facts.
[1067 D-E]
In the instant case, if there was any conflict of interest and duty the appellant should have declined to accept the brief. What is
reprehensible is that he not only accepted the brief, pocketed the money meant for court fees, and never filed the suits but in a frantic
effort to save himself, he threw the entire blame on his junior. [1068 B-C] Nothing should be done by any member of the legal fraternity
which might tend to lessen in any degree the confidence of the public in the fidelity, honesty and integrity of the profession. The relation
between a lawyer and his client is highly fiduciary in its nature and of a very delicate, exacting, and confidential character requiring a high
degree of fidelity and good faith. It is purely a personal relationship, involving the highest personal trust and confidence which cannot be
delegated without consent. A lawyer when entrusted with a brief, is expected to follow the norms of professional ethics and try to protect
the interests of his clients, in relation to whom he occupies a position of trust. The appellant completely betrayed the trust reposed in him
by the complainants in this case.
[1067 F, G-H; 1068 A]
4. The punishment awarded by the Disciplinary Committee of the Bar Council of India does not warrant any further interference. In a case
like this, the punishment has to be deterrent. Any appeal for mercy is wholly misplaced. It is a breach of integrity and a lack of probity for
a lawyer to wrongfully with hold the money of his client and there was in this case complete lack of candour on the part of the appellant.
[1068 D, F]
(per contra)
(a) Where it is shown that the advocate acted in bad faith towards his client in detaining or misappropriating funds of the client, or that
the wrong was committed or aided by means of false representations, fraud or deceit, the fact that the advocate makes restitution to or
settlement with the client will not prevent disbarment especially where restitution was not made until after the commencement of the
disciplinary proceedings. It is only an ameliorating circumstance but does not mitigate the offence involved in the misappropriation
particularly when the repayment is made under pressure. [1068 H, 1069 A] (b) When there is disbarment or suspension from practice, the
lawyer must prove, if he can, after the expiration of a reasonable length of time, that he appreciates the significance of his dereliction,
that he possesses the good character necessary to guarantee uprightness and honour in his professional dealings, and therefore is worthy
to be restored. The burden is on the applicant to establish that he is entitled to resume the privilege of practising law without restrictions.
There is nothing of the kind in the present case. Even if the Supreme Court has the power to make such a direction, in terms of S. 38, the
Court has a duty to act with justice to the profession and the public as well as the appellant seeking reinstatement, and without regard to
mere feelings of sympathy for the applicant. Feelings of sympathy or a feeling that the lawyer has been sufficiently punished are not
grounds for reinstatement. [1068 B-D] 1057
(c) A direction requiring the advocate to undertake free legal aid during the period of his suspension would be a contradiction in terms.
Under s. 35(4), when an advocate is suspended from practice under cl. (c) of sub-s. (3) thereof, he shall, during the period of suspension
be debarred from practising in any court or before any authority or person in India. If the making of such a direction implies the
termination of the order of suspension, on the fulfilment of the conditions laid down, no restriction on the right of the advocate to appear
before any Court or authority, which privilege he enjoys under s. 30 of the Act, can be imposed.[1069 D-F]
The Court directed:
(i) the appellant to pay a sum of Rs. 2,500/- to the victim of the misconduct and produce a receipt (ii) give an undertaking as directed viz.,
accepting the suspension from practice upto 14th August 1979 and willingness to undertake work under any legal aid body in Tamil Nadu
and convince the Chairman of that Board to accept his services in any specific place where currently there is an on going project, produce
a certificate in this behalf from the Board and (iii) agree to do only free legal and for one year as reasonably directed by the Board (and
shall not during that period accept any private engagement) so that the period of suspension shall stand terminated with effect from
January 26, 1979.
[1061 A-D]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 839 of 1978.
From the Judgment and Order dated 11-3-1978 of the Disciplinary Committee of the Bar Council of India, New Delhi D.C. Appeal No.
14/75.
G. L. Sanghi and A. T. M. Sampath for the Appellant. Nemo for the Respondent.
The following Judgments were delivered
KRISHNA IYER, J.-We agree wholly with our learned brother Sen, J., that the appellant is guilty of gross professional misconduct and
deserves condign punishment. But conventional penalties have their punitive limitations and flaws, viewed from the reformatory angle. A
therapeutic touch, a correctional twist, and a locus penitentiae, may have rehabilitative, impact, if only we may experiment unorthodoxly
but within the parameters of the law. Oriented on this approach and adopting the finding of guilt, we proceed to consider the penalty,
assuming the need for innovation and departing from wooden traditionalism. A middle-aged man, advocate by profession, has grossly
misconducted himself and deceived a common client. Going by precedent, the suspension from practice for one year was none too harsh.
Sharp practice by members of noble professions deserves even disbarment. The wages of sin is death.
1058
Even so, justice has a correctional edge, a socially useful function, especially when the delinquent is too old to be pardoned and too young
to be disbarred. Therefore, a curative, not cruel punishment has to be designed in the social setting of the legal profession.
Law is a noble profession, true; but it is also an elitist profession. Its ethics, in practice, (not in theory, though) leave much to be desired, if
viewed as a profession for the people. When the constitution under Article 19 enables professional expertise to enjoy a privilege and the
Advocates Act confers a monopoly, the goal is not assured income but commitment to the people whose hunger, privation and hamstrung
human rights need the advocacy of the profession to change the existing order into a Human Tomorrow. This desideratum gives the clue
to the direction of the penance of a devient geared to correction. Serve the people free and expiate your sin, is the hint. Law's nobility as
 18

a profession lasts only so long as the member maintain their commitment to integrity and service to the community. Indeed, the
monopoly conferred on the legal profession by Parliament is coupled with a responsibility-a responsibility towards the people, especially
the poor. Viewed from this angle, every delinquent who deceives his common client deserves to be frowned upon. This approach makes it
a reproach to reduce the punishment, as pleaded by learned counsel for the appellant.
But, as we have explained at the start, every punishment, however, has a functional duality-deterrence and correction. Punishment for
professional misconduct is no exception to this 'social justice' test. In the present case, therefore, from the punitive angle, the deterrent
component persuades us not to interfere with the suspension from practice reduced 'benignly' at the appellate level to one year. From the
correctional angle, a gesture from the Court may encourage the appellant to turn a new page. He is not too old to mend his ways. He has
suffered a litigative ordeal, but more importantly he has a career ahead. To give him an opportunity to rehabilitate himself by changing his
ways, resisting temptations and atoning for the serious delinquency, by a more zealous devotion to people's causes like legal aid to the
poor, may be a step in the correctional direction.
Can these goals be accommodated within the scheme of the statute? Benignancy beyond the bounds of law are not for judges to try.
1059
Speaking frankly, Sec. 35(3) has a mechanistic texture, a set of punitive pigeon holes, but we may note that words grow in content with
time and circumstance, that phrases are flexible in semantics, that the printed text is a set of vessels into which the court may pour
appropriate judicial meaning. That statute is sick which is allergic to change in sense which the times demand and the text does not
countermand. That court is superficial which stops with the cognitive and declines the creative function of construction. So, we take the
view that 'quarrying' more meaning is permissible out of Sec. 35(3) and the appeal provisions, in the brooding background of social
justice, sanctified by Art. 38, and of free legal aid enshrined by Art. 39A of the Constitution.
"A statute rarely stands alone. Back of Minerva was the brain of Jove, and behind Venus was the spume of the ocean."
(The Interpretation and Application of Statutes-Read Dickerson p. 103)
Back to the Act. Sec. 35(3) reads:
"The disciplinary committee of a State Bar Council after giving the advocate concerned and the Advocate General an opportunity of being
heard, may make any of the following orders, namely:-
(a) dismiss the complaint or, where the proceedings were initiated at the instance of the State Bar Council, direct that the proceedings be
filed;
(b) reprimand the advocate;
(c) suspend the advocate from practice for such period as it may deem fit;
(d) remove the name of the advocate from the State roll of advocates.
Sec. 37 provides an appeal to the Bar Council of India. It runs:
37(1) Any person aggrieved by an order of the disciplinary committee of a State Bar Council made (under section 35) (or the Advocate
General of the State) may, within sixty days of the date of the communication of the order to him, prefer an appeal to the Bar Council of
India.
1060
(2) Every such appeal shall be heard by the disciplinary committee of the Bar Council of India which may pass such order (including an
order varying the punishment awarded by the disciplinary committee of the State Bar Council) thereon as it deems fit.
Section 38 provides a further, final appeal to the Supreme Court in these terms:
"Any person aggrieved by an order made by the disciplinary committee of the Bar Council of India under section 36 or Section 37 (or the
Attorney General of India or the Advocate General of the State concerned, as the case may be) may, within sixty days of the date on which
the order is communicated to him, prefer an appeal to the Supreme Court and the Supreme Court may pass such order (including an
order varying the punishment awarded by the disciplinary committee of the Bar Council of India) thereon as it deems fit." Section 35(3) (c)
enables suspensions of the advocate- whether conditionally or absolutely, it is left unclear. Section 37 (2) empowers the Bar Council of
India widely to 'pass such order as it deems fit.' And the Supreme Court, under Sec. 38 enjoys ample and flexible powers to 'pass such
order.. as it deems fit'.
Wide as the power may be, the order must be germane to the Act and its purposes, and latitude cannot transcend those limits. Judicial
'Legisputation' to borrow a telling phrase of J. Cohen, is not legislation but application of a given legislation to new or unforeseen needs
and situations broadly falling within the statutory provision. In that sense, 'interpretation is inescapably a kind of legislation'. This is not
legislation stricto sensu but application, and is within the court's province. We have therefore sought to adapt the punishment of
suspension to serve two purposes-injury and expiation. We think the ends of justice will be served best in this case by directing
suspension plus a provision for reduction on an undertaking to this court to serve the poor for a year. Both are orders within this court's
power.
1061
Tamil Nadu has a well-run free legal aid programme with which the Governor and Chief Justice of the State are associated. The State Legal
Aid Board, working actively with two retired Judges of the High Court at the head, may use the services of the appellant keeping a close
watch on his work and relations with poor clients, if he applies to the Legal Aid Board for giving him such an opportunity, after getting this
court's order as provided below. Independently of that, as a token of our inclination to allow the appellant to become people-minded in
his profession, we reduce the suspension from practice upto the 14th of August 1979. With the next Independence Day we hope the
appellant will inaugurate a better career and slough off old bad habits. If the appellant gives an undertaking that he will work under any
official legal aid body in Tamil Nadu and convinces the Chairman of the State Legal Aid Board, Tamil Nadu, to accept his services in any
specific place where currently there is an on-going project, produces a certificate in this behalf from the Board, and gives an undertaking
to this Court that he will do only free legal aid for one year as reasonably directed by the Board (and shall not, during that period, accept
any private engagement), his period of suspension shall stand terminated with effect from January 26, 1979. As a condition precedent to
his moving this court he must pay (and produce a receipt) Rs. 2,500/- to the victim of the misconduct. Atonement cannot be by mere
paper pledges but by actual service to the people and reparation for the victim. That is why we make this departure in the punitive part of
 18

our order. Innovation within the frame-work of the law is of the essence of the evolutionary process of juridical development. From that
angle, we think it proper to make a correctional experiment as a super-addition to punitive infliction. Therefore, we make it clear that our
action is less a precedent than a portent.
With the modification made above, we dismiss the appeal.
SEN, J.-This appeal under section 38 of the Advocates Act, 1961 by V. C. Rangadurai is directed against an order of the Disciplinary
Committee of the Bar Council of India dated March 11, 1978 upholding the order of the Disciplinary Committee-II of the State Bar Council,
Madras dated May 4, 1975 holding him guilty of professional misconduct but reducing the period of suspension from practice to one year
from six years.
There can be no doubt that the appellant had duped the complainants, T. Deivasenapathy, an old deaf man aged 70 years and his aged
wife Smt. D. Kamalammal by not filing the suits on two
1062
promissory notes for Rs. 15,000/- and Rs. 5,000/- both dated August 26, 1969 executed by their land-lady Smt. Parvathi Ammal, who had
borrowed Rs. 20,000/- from them, by deposit of title deeds.
Admittedly, though the plaint for recovery of the amount due on the promissory note for Rs. 15,000/- with interest thereon bearing court
fee of Rs. 1,519.25 was returned for presentation to the proper court, it was never re-presented. It is also not denied that though the
appellant had drafted the plaint for recovery of Rs. 5,000/- with interest no such suit was ever filed. In spite of this, the appellant made
false representations to the complainants Deivasenapathy (P.W. 1), his wife Smt. Kamalammal (P.W. 3) and the power of attorney agent of
the complainants, D. Gopalan (P.W. 2) that the suits had been filed and were pending, gave them the various dates fixed in these two suits,
and later on falsely told them that the court had passed decrees on the basis of the two promissory notes. On the faith of such
representation the complainants served a lawyer's notice dated December 25, 1973 (Ext. P-3) on the debtor Smt. Maragathammal, to the
effect: "That you are aware of my clients' filing two suits against you for recovery of Rs. 15,000/- and Rs. 5,000/- with due interest and cost
thereon and it is not to state that both the suits were decreed as prayed for by my clients in the court proceedings. My clients further say
that in spite of the fact that the suits had been decreed long ago you have not chosen to pay the amount due under the decrees in
question and on the other hand trying to sell the property by falsely representing that the original documents have been lost to the
prospective buyers. My clients further state that you are aware of the fact that my clients are in possession of the original documents
relating to the property bearing door No. 41 Shaik Daood Street, Royapeeth, Madras-14, but deliberately made false representation as
aforesaid with the mala fide intention to defeat and defraud my clients' amounts due under the decree.
My clients emphatically state that you cannot sell the property in question without disclosing the amounts due to them.....".
1063
It would thus appear that acting on the representations made by the appellant, the complainants called upon the debtor Smt.
Maragathammal to pay the amount due under the decrees failing which they had instructed their lawyer to bring the property to sale.
Actually no such suits had in fact been filed nor any decrees passed.
It is argued that the finding as to professional misconduct on the part of the appellant reached by the Disciplinary Committee of the Bar
Council of India is not based on any legal evidence but proceeds on mere conjectures. It is pointed out that the ultimate conclusion of the
Disciplinary Committee cannot be reconciled with its earlier observation that it was not prepared to attach any credence to the conflicting
assertion of Deivasenapathy that he had at first handed over Rs. 855/- on December 2, 1970 for filing the suit on the promissory note for
Rs. 5,000/- and then paid Rs. 2,555/- some time in July 1972 for filing the suit on the promissory note for Rs. 15,000/- which is in conflict
with the allegation in the lawyer's notice dated February 21, 1974 (Ext. R-1) that a sum of Rs. 3,410/- was paid on July 17, 1972 to wards
court fees and expenses for the filing of the two suits, or that the various dates marked in the copies of the two plaints, Ext. P-1 and Ext. P-
2, were indeed given by him. It is urged that the Disciplinary Committee was largely influenced by the fact that the appellant gave the
receipt, Ext. R-7 to K.S. Lakshmi Kumaran, which was found to be forged. In view of the discrepancies in the testimony of Deivasenapathy,
P.W. 1, Smt. Kamalammal, P.W. 3 and their agent, D. Gopalan, P.W. 2, it was evident that the Disciplinary Committee mainly based the
charge of misconduct on mere suspicion. Lastly, it is said that the complaint was a false one and was an attempt to pressurize the
appellant to persuade his client Smt. Maragathammal to sell the house to the complainants. We are afraid, the contentions cannot be
accepted. In denial of the charge the appellant pleaded that though he had drafted the plaint in the suit to be filed on the basis of the
promissory note for Rs. 5,000/-, he felt that as the debtor Smt. Maragathammal had consulted him in another matter, it would be better
that the complainants engaged some other counsel and he advised them accordingly. He suggested the names of two or three lawyers out
of whom, the complainants engaged K. S. Lakshmi Kumaran. He denied that the two promissory notes were handed over to him or that he
had received any amount by way of court fees or towards his fees. According to him, K.S.Lakshmi Kumaran was, therefore. instructed to
file the suits.
K. S. Lakshmi Kumaran, on the other hand, pleaded that he knew nothing about the suits but had in fact signed the Vakalat as a Junior
1064
counsel, as a matter of courtesy at the behest of the appellant. He pleaded that he had never met the complainants nor had he been
instructed by them to file the suits. He further pleaded that when the complainants served him with their lawyer's notice dated February
11, 1974, Ext. R-11, he went and saw the appellant who told him that he had returned the plaint, which was returned by the court,
together with all the documents to the complainant Deivasenapathy as per receipt, Ext. R-7. On February 21, 1974 the complainants
served another lawyer's notice on both the appellant and K. S. Lakshmi Kumaran. The appellant and K. S. Lakshmi Kumaran sent their
replies to this notice. The appellant's reply, Ext. R-2, was practically his defence in the present proceedings. K. S. Lakshmi Kumaran in his
reply, Ext. R-5, refers to the lawyer's notice, Ext. R-11, sent by the complainants earlier and states that when he took the notice to the
appellant, he told him that the papers were taken back from him by the complainant Dievasenapathy who had passed on to him a receipt.
The Disciplinary Committee, in its carefully written order, has marshalled the entire evidence in the light of the probabilities and accepted
the version of K. S. Lakshmi Kumaran to be true. It observes:
 18

"Earlier we referred to the conflict between the two advocates. We cannot help observing that we feel there is want of candour and
frankness on the part of RD. On a careful consideration of the evidence we see no reason to reject the evidence of L that he merely signed
the Vakalat and plaint and when the plaint was returned he took the return and passed on the papers to RD."
It then concludes stating:
"On an overall view of the evidence we hold that L was not directly engaged by the parties and that when the plaint with its annexures
was returned, L passed it on to RD. We also accept L's evidence that when on receipt of the notice Ext. R-11 he met RD he was informed
that the case papers were taken back by P.W. 1 and that some time afterwards RD gave him the receipt Ext. R-7..............
It must be, that when the complainants turned against RD suspecting his bona fide he denied having had anything to do in the matter and
threw up his junior colleague in the profession stating that he passed the clients no to L and had nothing more to do with the case. As the
clients had no direct contact with L his statement that he handed over the 1065
plaint on its return to RD looks probable and likely. We accept it. When a notice was issued to him in the matter he went to RD and RD
gave him the receipt Ext. R-7. The receipt purports to be signed by Deivasenapathy and accepted it for what it was worth." In that view,
both advocates were found guilty of professional misconduct, but differing in character and different in content. In dealing with the
question, it observes:
"As regards RD, the litigants entrusted the briefs to him whatever their motive. The record does not establish that before entrusting the
case to L the complainants were introduced by RD to L and L was accepted by them as counsel in charge of the case." It condemned both
the advocates for their dereliction of duty, but only reprimanded K. S. Lakshmi Kumaran, the junior advocate, because he never knew the
complainants and had signed the vakalat at the bidding of the appellant, but took a serious view of the misconduct of the appellant, and
castigated his whole conduct in no uncertain terms, by observing:
"Finding himself in difficulties RD miserably failed in his duty to his fellow advocate very much junior to him in the profession and who
trusted him. The conduct of a lawyer to his brothers in the profession must be characterised by candour and frankness. He must keep
faith with fellow members of the bar. While quite properly RD did not accept the engagement himself we are of the view that he has been
party to the institution of a suit tended merely to harass the defendants in the suit, with a view to secure some benefit for the other
party-manifestly unprofessional." It went on to observe:
"The only casualty is RD's professional ethics in what he might have thought was a gainful yet good samaritan move. When the move
failed and there was no likelihood of his success, the complainants turned against him securing for their help their power of attorney.
Then fear psychosis appears to have set in, leading RD to totally deny his involvement in the plaint that was filed and let down the junior
whose assistance he sought. We see no other probability
1066
out of the tangled web of exaggerations, downright denials, falsehood and fabrications mingled with some truth."
May be, the complainants were not actuated from a purely altruistic motive in lodging the complaint but that does not exonerate the
appellant of his conduct. The suggestion that the complaint was false one and constituted an attempt at blackmail is not worthy of
acceptance. The property was actually sold to M. M. Hanifa for Rs. 36,000 by registered sale deed dated August 1, 1974, while the
complaint was filed in April 1974. We do not see how the initiation of the proceedings would have pressurised the appellant to compel his
client Smt. Maragathammal to part with the property for Rs. 20,000/- the price offered by the complainants. It is no doubt true that at
one stage they were negotiating for the purchase of the house of which they were the tenants but the price offered by them was too low.
The Disciplinary Committee of the Bar Council of India summoned the purchaser and he stated that from December 1973, he had been
trying to purchase the property. It is also true that in response to the notice dated August 1, 1974 served by the purchaser asking the
complainants to attorn to him, they in their reply dated August 8, 1974 expressed surprise that he should have purchased the property for
Rs. 36,000/- when in fact it was not worth more than Rs. 26,000/-
It matters little whether the amount of Rs. 3,410/- was paid to the appellant in a lump sum or in two instalments. Deivasenapathy, P.W. 1
faltered when confronted with the notice Ext. R-1 and the Disciplinary Committee of the Bar Council of India has adversely commented on
this by saying that he is not 'an illiterate rustic' but is an M.I.S.E., a retired Civil Engineer. This by itself does not disapprove the payment of
the amount in question. It may be the general power of attorney, D. Gopalan, P.W. 2, made a mistake in instructing the counsel in giving
the notice. As regards the various dates appearing on the copies of the two plaints, Exts. P-1 and P-2, the complainants could not have got
these dates by themselves unless they were given by the appellant. In an appeal under section 38 of the Act, this Court would not, as a
general rule, interfere with the concurrent finding of fact by the Disciplinary Committee of the Bar Council of India and of the State Bar
Council unless the finding is based on no evidence or it proceeds on mere conjecture and unwarranted inferences. This is not the case
here.
Under the scheme of the Act, the disciplinary jurisdiction vests with the State Bar Council and the Bar Council of India. Disciplinary
1067
proceedings before the State Bar Council are sui ceneris, are neither civil nor criminal in character, and are not subject to the ordinary
criminal procedural safeguards. The purpose of disciplinary proceedings is not punitive but to inquire, for the protection of the public, the
courts and the legal profession, into fitness of the subject to continue in the capacity of an advocate. Findings in disciplinary proceedings
must be sustained by a higher degree of proof than that required in civil suits, yet falling short of the proof required to sustain a
conviction in a criminal prosecution. There should be convincing preponderance of evidence. That test is clearly fulfilled in the instant
case.
When 'a lawyer has been tried by his peers', in the words of our brother Desai J., there is no reason for this Court to interfere in appeal
with the finding in such a domestic enquiry merely because on a reappraisal of the evidence a different view is possible. In the facts and
circumstances of the case, we are satisfied that no other conclusion is possible than the one reached. There is, therefore, no ground for
interference with the finding of the Disciplinary Committee of the Bar Council of India. It is not in accordance with professional etiquette
for one advocate to hand over his brief to another to take his place at a hearing (either for the whole or part of the hearing), and conduct
the case as if the latter had himself been briefed, unless the client consents to this course being taken. Council's paramount duty is to the
client; accordingly where he forms an opinion that a conflict of interest exists, his duty is to advise the client that he should engage some
 18

other lawyer. It is unprofessional to represent conflicting interests, except by express consent given by all concerned after a full disclosure
of the facts. Nothing should be done by any member of the legal fraternity which might tend to lessen in any degree the confidence of the
public in the fidelity, honesty and integrity of the profession. Lord Brougham, then aged eighty-six, said in a speech, in 1864, that the first
great quality of an advocate was 'to reckon everything subordinate to the interests of his client'. What he said in 1864 about 'the
paramountcy of the client's interest'. is equally true today. The relation between a lawyer and his client is highly fiduciary in its nature and
of a very delicate, exacting, and confidential character requiring a high degree of fidelity and good faith. It is purely a personal
relationship, involving the highest personal trust and confidence which cannot be delegated without consent. A lawyer when entrusted
with a brief, is expected to follow the norms of professional ethics and try to protect the interests of his clients, in relation to whom he
occupies a position of trust. The
1068
appellant completely betrayed the trust reposed in him by the complainants.
It is needless to stress that in a case like this the punishment has to be deterrent. There was in this case complete lack of candour on the
part of the appellant, in that he in a frantic effort to save himself, threw the entire blame on his junior, K. S. Lakshmi Kumaran. The
evidence on record clearly shows that it was the appellant who had been engaged by the complainants to file suits on the two promissory
notes for recovery of a large sum of Rs. 20,000/- with interest due thereon. There was also complete lack of probity on the part of the
appellant because it appears that he knew the debtor, Smt. Maragathammal for 7/8 years and had, indeed, been appearing for her in
succession certificate proceedings. If there was any conflict of interest and duty, he should have declined to accept the brief. What is
reprehensible is that he not only accepted the brief, pocketed the money meant for court fees, and never filed the suits.
The appeal for mercy appears to be wholly misplaced. It is a breach of integrity and a lack of probity for a lawyer to wrongfully withhold
the money of his client. In a case of such grave professional misconduct, the State Bar Council observes that the appellant deserved the
punishment of disbarment, but looking to his young age, only suspended him from practice for a period of six years. The Disciplinary
Committee of the Bar Council of India has already taken a lenient view and reduced the period of suspension from six years to one year, as
in its view the complainants did not suffer by the suits not being proceeded with because even if they had obtained decrees for money,
they would still have been required to file a regular mortgage suit for the sale of the property charged.
In the facts and circumstances of the case, I am of the view that the punishment awarded by the Disciplinary Committee of the Bar
Council of India does not warrant any further interference.
I have had the advantage of reading the judgment of my learned brother Krishna Iyer for the restitution to the appellant of his right to
practice upon fulfilment of certain conditions. I have my own reservations in the matter, that is, whether any such direction should at all
be made in the present case.
Where it is shown that the advocate acted in bad faith towards his client in detaining or misappropriating funds of the client, or that the
wrong was committed or aided by means of false representations, fraud or deceit, as here, the fact that the advocate makes restitution to
1069
or settlement with the client will not prevent disbarment, especially where restitution was not made until after the commencement of the
disciplinary proceedings. It is only an ameliorating circumstance but does not mitigate the offence involved in the misappropriation,
particularly when the repayment is made under pressure.
When there is disbarment or suspension from practice, the lawyer must prove, if he can, after the expiration of a reasonable length of
time, that he appreciates the significance of his dereliction, that he has lived a consistent life of probity and integrity, and that he
possesses the good character necessary to guarantee uprightness and honour in his professional dealings, and therefore is worthy to be
restored. The burden is on the applicant to establish that he is entitled to resume the privilege of practising law without restrictions. There
is nothing of the kind in the present case.
Further, even if this Court has the power to make such a direction. in terms of s. 38, the Court has a duty to act with justice to the
profession and the public as well as the appellant seeking reinstatement, and without regard to mere feelings of sympathy for the
applicant. Feelings of sympathy or a feeling that the lawyer has been sufficiently punished are not grounds for reinstatement.
I also doubt whether a direction can be made requiring the advocate to undertake free legal aid during the period of his suspension. This
would be a contradiction in terms. Under s. 35(4), when an advocate is suspended from practice under cl.(c) of sub-s. (3) thereof, he shall,
during the period of suspension, be debarred from practising in any court or before any authority or person in India. If the making on such
a direction implies the termination of the order of suspension, on the fulfilment of the conditions laid down, I am of the considered view
that no restriction on the right of the advocate to appear before any court or authority, which privilege he enjoys under s. 30 of the Act,
can be imposed.
The taking, of too lenient a view in the facts and circumstances of the case, I feel, would not be conducive to the disciplinary control of the
State Bar Councils. I would, for these reasons, dismiss the appeal and maintain the punishment imposed on the appellant.
In conclusion, I do hope the appellant will fully reciprocate the noble gesture shown to him by the majority, come up to their expectations
and turn a new leaf in life. It should be his constant endeavour to keep the fair name of the great profession to which he belongs
unsullied. S.R. Appeal dismissed.
 18

5.Chandra Shekhar Soni vs Bar Council Of Rajasthan And Ors. on 20 July, 1983
Equivalent citations: AIR 1983 SC 1012, 1983 (2) SCALE 384, (1983) 4 SCC 255
Bench: A Sen, E Venkataramiah, R Misra
ORDER
1. This appeal under Section 38 of the Advocates Act, 1961 is directed against an order of the Disciplinary Committee of the Bar Council of
India dated January 7, 1977 upholding the order of the Disciplinary Committee of the State Bar Council of Rajasthan, Jodhpur dated July
21, 1974 by which the appellant has been held guilty of professional misconduct and suspended from practice for a period of three years
under Section 35(c) of the Act.
2. Nothing should be done by any member of the legal fraternity which might tend to lessen in any degree the confidence of the public in
the fidelity, honesty and integrity of the profession. The State Bar Council gave the appellant the benefit of doubt on the first charge that
he changed sides in a criminal case, holding that though such conduct on his part was unprofessional, it was not tantamount to
professional misconduct. The Disciplinary Committee of the Bar Council of India rightly observes that it failed to appreciate the distinction
drawn by the Slate Bar Council as his act in accepting the brief for the accused after having appeared for the complainant was clearly
contrary to r. 33 of the Bar Council of India Rules, 1975. We concur with the Disciplinary Committee. It is not in accordance with
professional etiquette for an advocate while retained by one party to accept the brief of the other. It is unprofessional to represent
conflicting interests except by express consent given by all concerned after a full disclosure of the facts. The appellant would not have
appeared for the other side except with the permission of the learned Magistrate. Counsel's paramount duty is to the client, and where
he finds that there is conflict of interests, he should refrain from doing anything which would harm any interests of his client. A lawyer
when entrusted with a brief is expected to follow the norms of professional ethics and try to protect the interests of his client in relation
to whom he occupies a position of trust. The State Bar Council however found the appellant guilty of the second charge viz. that he had
procured the brief of the complainant in another case on a fee of Rs. 300/- on the representation that he would secure a favourable
report from the Radiologist showing that there was a fracture of the skull. The appellant was guilty of reprehensible conduct. The
preamble to Chapter II Part VI of the Rules lays down that an advocate shall at all times, comfort himself in a manner befitting his status as
an officer of the Court, privileged member of the community and a gentleman. R. 4 of this Chapter provides that an advocate shall use his
best effort to restrain and prevent his client from resorting to sharp and unfair practices etc. There is a long catena of decisions laying
down that offering of bribe or giving bribe or taking money from the client for the purpose of giving bribe amounts to grave professional
misconduct.
3. It appears that the complainant Bhaniya and his wife Smt. Galki were assaulted as a result of which they received head injuries. Both of
them were examined by Dr. Raman Varma and he referred them to a Radiologist. Dr. Mangal Sharma, Radiologist sent a report to the
Station House Officer that he found nothing abnormal in the X-ray plate of the complainant Bhaniya but from the X-ray plate of Smt. Galki
he suspected a fracture of the skull and suggested that he should refer the matter to a Specialist. The appellant approached the
complainant with the X-ray plates taken by Dr. Sharma and promised to get a favourable report if he was engaged as a counsel and said
that Rs. 300/- had to be paid to Dr. Sharma. The appellant then sent the complainant along with a letter to Dr. Sharma to the effect :
Dear Doctor Sahib,
I am sending the man to you with X-ray plate. Your amount is lying with me. 1 will come to Jalore in the evening and see you. Please, do
his work and it should be done positively in his favour.
Sd/-
Chander Shekhar Soni
4. Dr. Mangal Sharma sent another report to the Station House Officer saying :
There is evidence of fracture of the skull.
5. It is not in controversy that the appellant wrote the letter but he put forward a false plea which he has failed to substantiate. He
pleaded that he had sent the letter to one Dr. Surinder Singh Lodha, Homeopath and also Editor of a newspaper Jan Prahari for
publication of an advertisement. He tried to substantiate his plea by examining Dr. Surinder Singh Lodha and one Mahipal Kumar through
whom he is supposed to have sent the letter. The appellant in his statement stated, when confronted with the letter, that the words "I am
sending the man to you with X-ray plate" relate to the X-ray 35 plate sent by him to Dr. Lodha, the words "Your amount is lying with me"
relate to Rs. 20/- given to Mahipal for being handed over to Dr. Lodha for the printing of the advertisement, and the words "Please do his
work and it should be done positively in his Favor" relate to the publication of the advertisement as desired by Mahipal. The defence plea
was that Dr. Lodha had taken the X-ray plate of one of his relations who was suffering from tuberculosis. The Disciplinary Committee of
the Bar council of India has upheld the finding of the State Bar Council disbelieving the defence version. The explanation of Mahipal is that
he had lost the letter. On the contrary, the version of the complainant is that he had taken the letter to Dr. Sharma who after reading it
returned the same to him. The fact remains that the incriminating letter has been produced by the complainant. This completely falsifies
the plea taken by the appellant in his defence that the letter was meant for publication of an advertisement in the newspaper. Admittedly,
no such advertisement was ever published.
6. In an appeal under Section 38 of the Act, this Court would not, as a general rule, interfere with the concurrent finding of fact given by
the Disciplinary Committee of the Bar Council of India and of the State Bar Council unless the finding is based on no evidence or it
proceeds oh mere conjectures and unwarranted inferences. This is not the case here. In the facts and circumstances of the case, we are
satisfied that no other conclusion is possible than the one reached. There is therefore no ground for interference with the finding of the
Disciplinary Committee of the Bar Council of India.
7. It is needless to stress that in a case like this the punishment has to be deterrent. There was in this case complete lack of candour on
the part of the appellant in that he, in a frantic effort to save himself, procured false evidence. The evidence on record clearly shows that
the appellant had taken money to pay a bribe to the Radiologist. In a case of such grave professional misconduct, the State Bar Council
observes that such practices adopted by the members of the bar bring the whole legal profession into disrepute and accordingly directed
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that the appellant be suspended from practice for a period of three years. The Disciplinary Committee has upheld the sentence saying
that the penalty imposed does not appear to be excessive and rejected the plea of mercy observing :
It is true that the appellant was a mere junior at the bar and not much experienced when the incident is said to have taken place. The
temptation for money at that stage is of course very great but at the same time it is to be realised by the appellant that he belongs to a
noble profession, which has very high traditions and those traditions are not to be sullied by malpractices of this nature.
Accordingly it declined to interfere with the punishment. We however feel that the punishment of suspension from practice for a period
of three years to a junior member of the bar like the appellant is rather severe. The lapse on the part of the appellant was perhaps due to
the fact that in the struggle for existence he had to resort to such malpractices. We strongly deprecate the conduct of the appellant but
take a lenient view because he was an inexperienced member of the bar, and the fact that the incidents took place in 1971. In all facts and
circumstances of the case, we feel it would meet the ends of justice if we reduce the period of suspension from three years to one year.
We order accordingly.
8. Subject to this modification, the appeal is dismissed with no order as to costs.