The Hikmat Ali Khan v. Ishwar Prasad Arya and Ors.
case summary is provided
below. A challenge challenging a ruling by the Bar Council of India's
disciplinary committee was brought before the Hon'ble Supreme Court of India and
is also known as the "Advocate's Assault Case."
Under Section 38 of the
Advocates Act of 1961, which grants a right of appeal to anyone who is
dissatisfied with a decision made by the disciplinary committee of the Bar
Council of India, the appellant took this case before the Hon'ble Supreme Court
of India. In this instance, the appellant has challenged the Bar Council of
India's disciplinary committee's decision to overturn the respondent's
According to Section 35 of the Advocates Act of 1961 read with
Section 24-A of the Act, the State Bar Council of Uttar Pradesh had disbarred
the respondent on allegations of professional misconduct. In this instance, the
appellant had appealed the respondent's 3-year debarment order issued by the U.
P. State Bar Council Disciplinary Committee. The appellant appealed to the Hon'ble Supreme Court of India since the Bar Council of India's disciplinary
committee refused to raise his penalty.
The issue involves professional
misconduct because the respondent is accused of defrauding and assaulting a
fellow attorney in court. The case also emphasizes how crucial it is for
advocates to operate within the confines of the law, show consideration for
their fellow advocates, and treat their line of work with dignity.
Primary Details Of The Case
Case No.: Civil Appeal No 4240 of 1986
Jurisdiction: Supreme Court of India
Case Filed On: 1986
Case Decided On: January 28, 1997
Judges: Justice S. C. Agarwal, Justice Sujata V. Manohar
Legal Provisions Involved: Constitution of India- Article 161; Advocates Act,
1961- Section 3,6, 9, 24-A, 35, 36, 37, 38; Bar Council of India Rules- Part
VII, Chapter-1; Indian Penal Code- Section 307, Arms Act, 1959- Section 25
Brief Facts Of The Case
This case is an appeal under Section 38 of Advocates Act, 1961 before the
Hon'ble Supreme Court of India against the order of the Disciplinary Committee
of Bar Council of India dated September 8, 1985 setting aside the U. P. State
Bar Council Disciplinary Committee's sentence to the respondent of being
disbarred for 3 years. In this case, the advocate for the appellant was Mr.
Subodh Markandeya, Miss Chitra Markandeya, Mr. Ajay Singh and Miss Meenakshi
Agarwal. The respondent was represented by Advocate H. K. Puri and Pramod Swarup.
In this case, the respondent, namely Advocate Ishwar Prasad Arya practised in
Badaun. On May 18 1971, he assaulted his opponent Radhey Shyaam Tiwari with a
knife and a bullet is also said to have been fired by him in the course of this.
He was convicted for this under Indian Penal Code, Section 307 and Arms Act,
Section 25 by the 1st Temporary Civil and Sessions judge on July 3, 1972. The
High Court upheld his conviction under Section 307 IPC on appeal. He was
sentenced to 3 years of rigorous imprisonment by the High court.
III Additional District and Sessions Judge, Badaun who was responsible for the
execution of the order of the High Court received a letter from Deputy
Secretary, Ministry of Home, U. P. stating that the Governor has suspended the
conviction of Ishwar Prasad Arya under Article 161 of the Constitution of India.
On further enquiry it was found that letter so received was fraudulent and he
was arrested and sent to Badaun Jail to undergo imprisonment.
The III Additional
District and Sessions Judge sent a complaint to the Bar Council of U. P. against
the respondent alleging professional misconduct as envisaged under Section 35 of
the Advocates Act, 1961. The disciplinary committee of the U.P. state Bar
Council initiated proceedings against him and found him guilty of professional
misconduct under Section 35 of the act.
He was debarred from practicing as an
advocate for a period of 2 years through an order dated 30th January 1982. The
respondent appealed against the State Bar Council Disciplinary Committee order
to Bar Council of India under Section 37 of the Act.
The Bar Council of India
set aside this order stating lack of material evidence in the case that
respondent could be held guilty for fraudulent forgery of orders. Meanwhile, the
appellant namely-Hikmat Ali Khan also complained to the U. P. State Bar Council
in 1972 on the grounds of fraudulent documentation to evade arrest, his
conviction under Section 307 of the Indian Penal Code and also his name in
register No 8 of the police kotwali which was the register pertaining to bad
character. The state bar passed the ex-parte order because of the non-appearance
of the respondent in the case and debarred him for 3 years.
appealed against this order to the Bar Council of India for increasing the
quantum of punishment, and the respondent also appealed seeking relief from the
case. The Bar council disposed of both the appeals and set aside the respondents
punishment. Then Hikmat Ali Khan filed an appeal to the Supreme Court under
Section 38 of the Advocates Act, 1961 against such setting aside of punishment.
Issues Involved In The Case
Arguments Of The Parties
- Whether the acts are done by the appellant advocates tantamount to
professional misconduct under Section 35 of the Advocates Act?
Legal Aspects Involved In The Case
The legal aspects in this case involved are as follows:
- The advocates on behalf of the appellant argued that Disciplinary Committee had failed to acknowledge the fact that the respondent evaded arrest for 16 months on the basis of a fraudulently forged letter.
- The conviction of the respondent under IPC Section 307 has also not been taken into regard by the Bar Council.
- The respondent's entry in register 8 of kotwali Badaun which is for people with bad character in the society is unbecoming for an advocate and this leads to his bad reputation in society.
- The appellant lastly submitted that the Bar Council of U. P. which levied punishment of disbarment of 3 years was less quantum of punishment and the Bar council should have allowed an appeal against it.
Judgement In Brief
- Constitution of India
Article 161 (Power of Governor to grant pardons, etc., and to suspend, remit or commute sentences in certain cases)
- Advocates Act, 1961
- Section 3 (State Bar Councils)
- Section 6 (Functions of State Bar Councils)
- Section 9 (Disciplinary committees)
- Section 24-A (Disqualification for enrolment)
- Section 35 (Punishment of advocates for misconduct)
- Section 36 (Disciplinary powers of Bar Council of India)
- Section 37 (Appeal to the Bar Council of India)
- Section 38 (Appeal to Supreme Court of India)
- Section 42 (Powers of disciplinary committee)
- Bar Council of India Rules- Part VII, Chapter-1 (Complaints against advocates and procedure to be followed by Disciplinary Committees of the State Bar Council and the Bar Council of India)
- Indian Penal Code
- Section 307 (Attempt to murder)
- Section 193 (Punishment for false evidence)
- Section 228 (Intentional insult or interruption to public servant sitting in the judicial proceeding)
- Arms Act, 1959
Section 25 (Punishment for certain offences)
The Hon'ble Supreme Court of India gave the following verdict in this case.
The Present case:
- The court set aside the order of the Bar Council of India dated September 8, 1985 which set aside the U. P State Bar Council's order of disbarment of the respondent.
- The court upheld the order of disbarment of the respondent owing to gross professional misconduct under Section 35 of the Advocates Act, 1961.
- The court furthermore, stated that the act of the Advocate not only amounts to professional misconduct but also has been convicted of an offence involving moral turpitude which is a ground for Disqualification for enrolment from State rolls as per Section 24-A(1)(a) of the Act.
- The court order the removal of respondent-advocate from state rolls.
Hikmat Ali Khan v. Ishwar Prasad Arya and Ors. which can also
be known as Advocate's Assault Case is a case brought before the Hon'ble Supreme
Court of India against the order of the disciplinary committee of the Bar
Council of India. The case is of assault and forgery committed by an advocate in
open court against a fellow lawyer and evading punishment for the same.
Advocates have been regarded as loco parentis i.e., "in the place of a parent".
This has been held by the Hon'ble Supreme Court in the case of Pandurang
Dattatraya Khandekar v. Bar Council of Maharashtra, Bombay and Others
(1984) 2 SCC 556. Furthermore, Advocates have been regarded as the officers of the court.
This has been reiterated even by our Hon'ble apex court in the cases of Ex-Capt. Harish Uppal v. Union of India & Anr.
(2003) 2 SCC 45) and U.P. Sales Tax
Service Association v. Taxation Bar Association, Agra and others (1995 SCC (5)
However, in the present case, the conduct of the advocate in all regards
is against ethics. In order to evade arrest, the respondent went on to forge
documents pertaining to the governor's powers. The respondent is a practicing
advocate and yet using a knife against a fellow advocate to assault him and
intimidate him is against the law itself and the decorum and dignity of the
There is an onus on each legal practitioner to uphold such dignity and
decorum. However, the act done by the respondent is against his role as an
officer of the court. Furthermore, as per Section 42(2) of Advocates Act, 1861
All proceedings before a disciplinary committee of a Bar Council shall be deemed
to be judicial proceedings within the meaning of sections 193 and 228 of the
Indian Penal Code, 1860.
Furthermore, Section 42 of the act also confers the
disciplinary committee with the powers of the Civil Court. Thus, this means that
the Bar Council of India and State Bar Council Disciplinary Committees and
complaints under Section 35 of the Act must be dealt with like a judicial
proceeding and the members of such committees must leave behind their biases and
preconceptions as well as professional affiliations behind.
However, in the
present case, the Bar Council of India's decision to set aside the respondent's
punishment is an erroneous decision as he has been held guilty and even
convicted of the offence by the High Court.
Lastly, in my opinion, the
respondent's actions have failed the test devised by the court to ascertain
misconduct as held in the case of Pandurang Dattatraya Khandekar v. Bar Council
of Maharashtra, Bombay and Others
(1984) 2 SCC 556 read with In re A Solicitor
Ex parte the law Society (1912) 1 KB 302. The acts of the advocate stand
violative of the above-mentioned cases and tests and hence he has been rightly
removing from rolls of the state bar by the Hon'ble Court.
Important Cases Referred
- Ex-Capt. Harish Uppal v. Union of India & Anr (2003) 2 SCC 45)
- In re A Solicitor, Ex parte the law Society, (1912) 1 KB 302
- Pandurang Dattatraya Khandekar v. Bar Council of Maharashtra, Bombay and Others (1984) 2 SCC 556
- U.P. Sales Tax Service Association v. Taxation Bar Association, Agra and others (1995 SCC (5) 716)