The field of advocacy is honourable. The individual in society who is most
responsible, privileged, and intelligent is an advocate. His actions set an
example for the rest of society and should be governed.
An appeal against a
statutory body's decision is as follows:
Bar Council of India and case summary
of Shambhuram Yadav v. Hanumandas Khatri
, which involves professional
misconduct, wherein the advocate of the Bar Council of Rajasthan was referred to
the disciplinary committee of Bar Council on allegations that he wrote a letter
to his client and suggested that he bribe a judge in order to obtain several
favourable orders in his favour, and for that reason the said advocate was found
guilty of professional misconduct.
The list of professional misconduct is not
comprehensive; the Supreme Court has frequently broadened the definition of the
term misconduct. Generally speaking, the legal profession is not a trade or
business; rather, it is a kind, honourable, and clean vocation. Members of this
profession must work to ensure that their clients receive justice while refusing
to support dishonesty and corruption. The way that the profession's members
conduct themselves determines the credibility and reputation of the field. It
represents a harmonious coexistence of the bar and bench.
Primary Details Of The Case
Legal Provisions Involved: Advocates Act, 1961, Section 35, 44
Case No.: Civil Appeal No. 6768 of 2000
Jurisdiction: Supreme Court
Case Filed On: October 16, 2000
Case Decided On: July 27, 2001
Judges: Justice K.T. Thomas, Justice Y.K. Sabharwal
Brief Facts Of The Case
Issues Involved In The Case
- In this case complaint was filed against the advocate before Bar Council of Rajasthan and was referred to Discipline Committee which was constituted by the State Bar Council.
- The complaint was that the advocate � responded who appeared as a counsel in civil suit wrote a letter to his client�Mahant Rajgiri inter alia stated that another client has told him that concerned judge accepts bribe and give favourable orders in his favour and so he should send amount of Rs. 10,000/-. In case he can influence the judge himself there is no need to send such amount to be given to the judge.
- The State Bar Council observe that the respondent advocate had admitted the contents of the letter and said that it constitutes professional misconduct and suspended him from practice for a period of two years with effect from June 15, 1997.
- The respondent advocate has challenged this before the Bar Council of India. By order dated July 31, 1999 the disciplinary committee of Bar Council of India comprising three members enhanced the punishment and directed that the name of the responded be struck off from the roll of advocates and thus debarring him permanently from the practice.
- The responded filed a review petition under section 44 of the Advocates Act against the order dated July 31, 1999. The review petition is accepted and the earlier judgment of the committee is modified to the extent and his suspension for life is revoked and he is only reprimanded. The review petition is allowed keeping in view the following observation such as:
- A perusal of the letter shows that the petitioner has simply given a reply to the query put by his client regarding the conduct of the judge and as such it remained a fact that it was not an offer on the side of the delinquent advocate to bribe a judge.
Arguments Of The Parties
- Whether the Disciplinary committee of the Bar Council of India has erred
in giving judgment?
- Whether the disciplinary committee can modify the earlier order passed
by another disciplinary committee by taking a different view of the same set
of facts in exercise of power of review?
- Appellant contended that the earlier order cannot be modified by the disciplinary committee while deciding a review petition. Therefore, the disciplinary committee has erred while delivering judgment.
- It is also said that the disciplinary bodies are guardians of the due administration of justice. They have requisite power and rather a duty while supervising the conduct of the members of the legal profession to inflict appropriate penalty when members are found to be guilty of misconduct.
Legal Aspects Involved In The Case
The Advocates Act, 1961
- Responded referred to disciplinary committee and from the said quotation it is evident that the advocate was simply given a reply to the query put by his client regarding the conduct of the judge and as such it remained a fact that it was not an offer on the side of the advocate to bribe a judge.
- Further, he argued that he has joined the profession since 1951 and has past clean record in the legal profession.
- Section 35 Punishment of advocates for misconduct:
- Where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee. [(1A) The State Bar Council may, either of its own motion or on application made to it by any person interested, withdraw a proceeding pending before its disciplinary committee and direct the inquiry to be made by any other disciplinary committee of that State Bar Council.]
- The disciplinary committee of a State Bar Council shall fix a date for the hearing of the case and shall cause a notice thereof to be given to the advocate concerned and to the Advocate-General of the State.
- 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:
- dismiss the complaint or, where the proceedings were initiated at the instance of the State Bar Council, direct that the proceedings be filed;
- reprimand the advocate;
- suspend the advocate from practice for such period as it may deem fit;
- remove the name of the advocate from the State roll of Advocates.
- Where an advocate is suspended from practice under clause (c) of sub-section (3), he shall, during the period of suspension, be debarred from practicing in any court or before any authority or person in India.
- Where any notice is issued to the Advocate-General under sub-section (2), the Advocate-General may appear before the disciplinary committee of the State Bar Council either in person or through any advocate appearing on his behalf. [Explanation�In this section, 4[section 37 and section 38], the expressions "Advocate-General" and Advocate-General of the State" shall, in relation to the Union territory of Delhi, mean the Additional Solicitor General of India.]
Judgement In Brief
- Section 44 Review of orders by disciplinary committee:
The disciplinary committee of a Bar Council may of its own motion or otherwise
review any order [within sixty days of the date of that order] passed by it
under this Chapter: Provided that no such order of review of the disciplinary
committee of a State Bar Council shall have effect unless it has been approved
by the Bar Council of India.
- The Supreme Court held that the earlier order considering all relevant aspects directed expulsion of respondent from profession which could not be slightly modified while deciding a review petition.
- It is evident that the earlier committee on consideration of all relevant facts came to the conclusion that the advocate was worthy of remaining in the profession.
- It is evident that the Bar Council considered that a high standard of morality is required from the lawyer more so from a person who has put in 50 years in profession. One expects from such person a very high standard of morality and unimpeachable sense of legal and ethical propriety. Since the Bar Councils under the Advocates Act have been entrusted with the duty of guarding the professional ethics, they have to be more sensitive to the potential disrepute on account of action of a few black sheep which may shake the credibility of the profession and thereby put at the stake other members of the bar. Considering these factors Bar Council had inflicted in its earlier order the condign penalty.
- Under these circumstances the apex court has no hesitation in setting aside the impugned order dated June 4, 2000 and restoring the original order of the Bar Council of India dated July 31, 1999.
- The appeal thus allowed in the above terms with cost quantified at Rs. 10,000/-.
Members of the legal profession are officers of the court and subject to the
rules imposed in regulation to the practice therein. Besides courts they also
owe a duty to the society which has a vital public interest in the due
administration of justice. The said public interest is required to be protected
by those on whom the power has been entrusted to take disciplinary action.
present case held advocate responded guilty of a serious misconduct by writing
to his client the letter suggesting to give bribe to judge and corrupting the
system and considering the nature of the misconduct the penalty of permanent
debarment had been imposed on the advocate responded.
The credibility of a
council including its disciplinary body in respect of any profession whether it
is law, medicine, accountancy or any other vocation depends upon how they deal
with cases of delinquency involving serious misconduct which has a tendency to
erode the credibility and reputation of the said profession. The punishment, of
course, has to be commensurate with the gravity of the misconduct.