ACHAL SAXENA AND ANR. V.

SUDHIR YADAV

RESEARCH REPORT SUBMITTED IN PARTIAL FULFILLMENT OF THE

COURSE PROFESSIONAL ETHICS FOR OBTAINING THE DEGREE B.B.A
LL.B (Hons.) DURING THE ACADEMIC YEAR 2021-22.

SUBMITTED BY: - NIHARIKA BHATI

ROLL NO. – 1839
9th SEMESTER
SUBMITTED TO: - DR. ANSHUMAN PANDEY
(ASSISTANT PROFESSOR OF LAW)

SEPTEMBER, 2021
CHANAKYA NATIONAL LAW UNIVERSITY
NYAYANAGAR, MITHAPUR, PATNA
800001
 TABLE OF CONTENTS

Declaration.......................................................................................................................................3

Acknowledgement...........................................................................................................................4

Research Methodology....................................................................................................................5

1. Introduction..............................................................................................................................6

2 Disciplinary Powers Of Bar Council........................................................................................9

3. Facts Of The Case...................................................................................................................11

4. Ratio Of The Case..................................................................................................................14

5. Section 36 B- An Analysis......................................................................................................16

6. Conclusion..............................................................................................................................18

Bibliography..................................................................................................................................19
 DECLARATION
I hereby declare that the work reported in the BB.A.LL.B. Project Report entitled “Achal
Saxena and Anr. V. Sudhir Yadav” submitted at Chanakya National Law University, Patna is
an authentic record of my work carried out under the supervision of Asst. Prof. Dr. Anshuman
Pandey. I have not submitted this work elsewhere for any other degree or diploma. I am fully
responsible for the contents of my Project Report.

(Signature of the Candidate)

Niharika Bhati
Chanakya National Law University, Patna
 ACKNOWLEDGEMENT
I take this opportunity to express my profound gratitude and deep regards to my guide Dr.
Anshuman Pandey for his exemplary guidance, monitoring and constant encouragement
throughout the course of this thesis. The blessing, help and guidance given by him time to time
shall carry me a long way in the journey of life on which I am about to embark.
I am obliged to staff members of Chanakya National Law University, for the valuable
information provided by them in their respective fields. I am grateful for their cooperation during
the period of my assignment.
Lastly, I thank almighty, my parents, brother, sisters and friends for their constant
encouragement without which this assignment would not be possible.

Thank you!
 RESEARCH METHODOLOGY
Method of Research:
For the purpose of research, the researcher has used the Doctrinal Method of Research. The
Research is entirely a Library-based Research, where the researcher has made use of books, law
journals, magazines, law reports, legislations, internet websites, etc., for the purpose of research.

Aims and Objectives:

The Researcher aims to study in detail the case of Achal Saxena vs. Sudhir Yadav with a special
emphasis on Section 36 B of the Advocates Act

Research Questions:
The researcher seeks to answer the following answers in this project:
1. What are the facts of the case Achal Saxena vs Sudhir Yadav?
2. What is the ratio of the case?
3. What does Section 36 B of the Advocates Act state and what is its importance?

Method of Writing:
The method of writing followed in the course of this research paper is primarily analytical.

Scope and Limitations of the Study:

Though the researcher will try her level best not to leave any stone unturned in doing this project
work to highlight various aspects relating to the topic, but the topic is so dynamic field of law,
the researcher will sight with some of unavoidable limitations. The limitations encountered by
the researcher were the paucity of time.
 1. INTRODUCTION
The Legal Profession is an important limb of the machinery for the administration of justice.
Without a well-organized profession of law, the courts would not be in a position to administer
justice effectively as the evidence in favor or against the parties to a suit cannot be properly
marshaled, facts cannot be properly articulated and the best legal arguments in support or against
the case of the parties cannot be put forth before the court. A well-organized system of judicial
administration postulates a properly equipped and efficient Bar. 1 Advocates are the only class of
people who are entitled to practice before the courts of law. The concept of a lawyer as an officer
of the Court arises from the Roman idea of a lawyer being an ‘advocatus’, who when called upon
by the praetor to assist in the cause of a client, was solemnly reprimanded to “avoid artifice and
circumlocution”2
History of Legal Profession in India
The history of the legal profession in India can be traced back to the establishment of the First
British Court in Bombay in 1672 by Governor Aungier. The admission of attorneys was placed in
the hands of the Governor-in-Council and not with the Court. Prior to the establishment of the
Mayor’s Courts in 1726 in Madras and Calcutta, there were no legal practitioners.
Thereafter the first concrete step in the direction of organizing a legal profession in India was
taken in 1774 when the Supreme Court was established at Calcutta. The Regulating Act, 1773,
empowered the Supreme Court to frame rules of procedure as it thought necessary for the
administration of justice and due execution of its powers. The Supreme Court was empowered to
approve, admit and enroll such and so many Advocates and Attorneys-at-law, as to the Court
shall deem fit. Attorneys of record were to be authorized to appear and plead and act for the
suitors in the Supreme Court. In the Supreme Courts, the only persons who were entitled to
practice were the British Barristers, Advocates, and Attorneys. The Indians had no right to appear
before these Courts.3
From time to time several other Regulations were passed to regulate the legal profession in the
Company’s adalats in Bengal, Bihar, and Orissa. Then came a rather lengthy and detailed

1
The Law Commission in its Fourteenth Report observed: “A well organized system of judicial administration
postulate a properly equipped and efficient Bar”, 1958, p. 556.
2
http://www.barcouncilofindia.org/about/about-the-legal-profession/history-of-the-legal-profession/.
3
M. P. Jain, Outlines of Indian Legal & Constitutional History, LexisNexis Butterworths Wadhwa Nagpur, Gurgaon,
2012, p. 669.
regulation. Regulation XXVII of 1814, passed on 29 November 1814, which consolidated the
law on the subject. The rule concerning fees, practice, government pleaders and malpractice were
considerably more detailed than before. The disciplinary powers over the Vakeels were enacted
in this Regulation. The power of dismissing Vakeels was vested in the Sadar Diwani Adalat as
well as the Provincial Court, and a Zillah and city court could suspend a Vakeel. Even the
professional work of the Vakeels came under the scrutiny of the courts. Then came the Legal
Practitioners Act 1846, which was the first All-India law concerning the pleaders in the
mofussil and made several important innovations. This Act is regarded as “the first charter of the
legal profession”4 It prescribed for three class of practioners i.e. Pleaders, Mukhtars and Revenue
Agents.
Finally with the recommendation of Law Commission of India, 1958, the Advocates Act, 1961
was enacted. The Act establishes an All India Bar Council for the first time. It repeals the Indian
Bar Council Act, 1926, the Legal Practitioners Act, 1879, in other laws under subject. The act has
undergone several amendments since its enactment in 1961. The Act extends to the whole of
India. The Act extinguishes all classes of practitioner and makes Advocates as the exclusive class
of Practitioners.

Types of Advocates Prior to 1961 Act

Prior to 1961 Legal Practitioner Act 1879, under Section 3 defined the term ‘Legal Practitioner’
according to which there are different class of Legal Practitioner. Legal Practitioner means and
includes Advocate, Vakil, Attorney, Pleader Mukhtar or Revenue Agent.
 Advocate- The basic eligibility to be an Advocate was to be a Bachelor of Law and
Recognized as Advocate by the appropriate High Court.
 Vakil- Those who qualified Bachelor of Law or Graduate with recognition by District and
Session Judge were entitled to get certificate for Vakil. They could appear before magistrate’s
courts and other courts but not HC or SC.
 Pleader- Those who passed the examination conducted by Munsifs were entitled to be
Pleaders. They could practice only before court of subordinate judiciary, i.e. can appear
before civil judge and magistrate but can’t appear at Court’s at Session Level.
 Mukhtar- Those who were 10th passed and appeared & cleared the exam conducted by

4
AIR 1924 JI. 13, 14.
 Executive Magistrates. They were very powerful. They could appear before cognizance
taking court. They could not appear before High Court rather only in Sukhtar and his
subordinate Court.
 Revenue Agents or Sukhtar- Any Person who passed 7th class and passed the exam
conducted by Revenue Authority were called as Sukhtars. They were basically Revenue
officers. They were entitled to appear before Revenue Courts or small cause courts.

Types of Advocates from 1961 Act

Under the 1961 Act, Sec 29 clearly states that there shall be only one class of person entitled to
practice law, namely, Advocates. The term Advocate means an advocate whose name is entered
in any roll under the provisions of this Act.5
However the Advocates Act, among the advocates makes two further classes, i.e.
1. Senior Advocates6
2. Other Advocates
However under Rule 4 of BCI certificate Verification rules, 2005, a new class of advocates is
recognised, i.e. ‘Non- Practising Advocate’. It means an Advocate enrolled in any Bar Council
but is not in Actual Practise of law and is engaged in some other public/private job, business,
contract, etc which is not related to legal profession and who has been so declared under rule 50
of 20 of these rules and whose name stands published in rule 20.7

5
Sec 2(a), Advocates Act 1961.
6
Section 16, Advocates Act 1961.
7
https://lexquest.in/bcis-new-certificate-practice-rules-newbie-advocates-banned-practicing-hc-sc.
 2. DISCIPLINARY POWERS OF BAR COUNCIL
Bar Council of India was established by Parliament under Advocates Act, 1961. Bar Council of
India mentions provisions of standards of professional conduct and etiquette by having
disciplinary jurisdiction over the Bar. Bar Council of India also perform certain representative
functions by protecting rights, privileges and interests of the advocates and through creation of
the funds for providing financial assistance to organize the welfare schemes for them.8
The term Bar Council is defined under Sec 2(d) of the Act to mean “Bar Council constituted
under the Act”. Bar Council comprises of
1. Bar Council of India9
2. State Bar Council10
The Bar Council is empowered to constitute one or more Disciplinary Committee. It would
constitute of 2 elected members by the council amongst its members, and 1 Co-opted by the
council from amongst advocates. And the senior most of these will be the Chairman. 11 The DC of
Bar Council of India is empowered to punish Advocates for Misconduct. Misconduct has not
been defined in the Advocates Act, 1966 but misconduct leads to breach of discipline and is wide
enough to include wrongful omission or commission, whether done or omitted to be done
intentionally or unintentionally.12
 Powers of the Disciplinary Committee of the Bar Council13:
Section 42 of The Act provides that the DC shall have the same powers that a civil court has
which includes all the powers mentioned in Criminal Procedure Code, 1908 and such powers
include:
 Summoning any person and examining him on oath
 Ordering production of documents
 Receiving evidence on affidavits
 Getting public record from any court or office
 Issuing commissions and expenses for the witnesses and documents
The DC does not have the power to order attendance of any officer of court except with
8
https://www.latestlaws.com/articles/structure-of-bar-councils-in-india-a-brief-introduction-history.
9
Sec 4, Advocates Act 1961.
10
Sec 3, Advocates Act 1961.
11
Sec 9, Advocates Act 1961.
12
https://dictionary.cambridge.org/dictionary/english/misconduct
13
Sec 42, Advocates Act, 1961.
permission of High Court of the respective state or the Supreme Court in case of DC of BCI. It
cannot order any revenue officer to be produced in front of the committee except by prior
permission of the respective State or Central Government. The DC can submit to any civil court
to request the attendance of any witness or production of any document and the civil court shall
enforce such process. The date of hearing will be fixed by the DC and the hearing will continue
even if the chairman of the committee is not present but no final order can be passed unless all
the three members of the committee are present. If the members of the DC are not able to arrive
at a consensus, the case will be presented before the Chairman of the BCI and his decision shall
be final. The Committee shall also make an order about the cost of the proceedings and such
order is to be executed as if it were issued by any court. The DC also has the power to hear
appeals and order stay when the matter has been heard by State Bar Council along with the
power to review its own orders.
 Punishment14:
Section 35 of the Act provides for punishment for professional and other misconduct. Section
35(1) of the Act provides that where on receipt of complaint or otherwise, if 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 DC.
Section 35(2) provides that the DC of State Bar Council shall fix the date for the hearing of the
case and shall cause a notice thereof to be given to the advocate concerned and the Advocate-
General of such state.
Section 35(3) provides that the DC of a State Bar Council after giving the advocate concerned
and the Advocate-General the opportunity of being heard, may make any one of the following
orders, namely:
1. a. Dismiss the complaint or where the proceedings were initiated at the instance State Bar
Council, direct that the proceedings be filed; or
2. Reprimand the advocate; or
3. Suspend the advocate from practice for such period as it may deem fit; or
4. Remove the name of the advocate from the State roll of advocates.
Section 35(4) provides that where an advocate is suspended from practice under clause (c) of
sub-section (3), they shall during the period of suspension, be debarred from practicing in any

14
Sec 35, Advocates Act, 1961.
court or before any authority or person in India.
Thus, it is clear from the above provisions under section 35 that an advocate can be punished for
both professional misconduct and negligence.
 Process of Proceedings:
When the state Bar Council receives a complaint or has a reason to believe that any advocate is
guilty of misconduct, it shall transfer the proceedings to the DC and it shall dismiss the
compliant if deems fit. This process is mentioned in Section 35 but if the complaint is withdrawn
or if the complainant passes away, the matter will be dropped. The advocate can appear in person
or through duly authorized representative and in case of the advocate not appearing on the date
of the hearing, the matter will be heard ex-parte and a decision will be made. All the evidence
presented shall be recorded and signed by the Chairman of the DC and then the Committee can
dismiss the complaint or hold the advocate guilty. In O.N. Mahindroo v Dist. Judge, Delhi, the
apex court held that every order of DC shall mandatorily be approved by the BCI, so the
Registrar of the DC will send a copy of judgment signed by the Chairman of the DC to the
parties free of cost and an appeal can also be made to the BCI when matter has already been
heard by the State Bar Council and such matter shall be heard in the same procedure by the DC
of BCI.
 Remedies against the Order of Punishment Passed by the Disciplinary Committee:
The Advocate Act provides remedies against the order of punishment. An advocate aggrieved by
the order of Disciplinary Committee can evoke the following remedies -
1. Review:
It is provided in Section 44 of the Advocates Act, 1961. By virtue of this Section the Disciplinary
Committee of Bar Council of its own motion or otherwise review any order, within 60 days of
the date of order passed by it under this Chapter. However, 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 India15.
According to Section 48-AA of the Bar Council of India or any of the its Disciplinary
Committee, may on its own motion or otherwise, review any order, within 60 days of the date of
that order, passed by it under the Advocate Act 1961 16. The procedure for making review
application is given in chapter II, Part VII of the rules of the Bar Council of India. It is in the
15
Sec 44, Advocates Act, 1961.
16
https://thelawreporter.in/2021/06/07/assessment-of-bar-council-disciplinary-committee/
form of petition duly signed and supported by an affidavit accompanied by prescribed fee and
certified copy of the order, complained of.
2. Revision [Section 48-A (Amendment 1964 )]:
1) The Bar Council of India may, at any time call for the record of proceeding under this Act
which has been disposed of by the State Bar Council or a Committee thereof, and from
which no appeal lies, for the purpose of satisfying itself as to the legality or propriety of
such disposal and may pass such orders in relation thereto as it may think fit.
2) No order which prejudicially affects any person shall be passed under this section without
giving a reasonable opportunity of being heard.
3. Application for Stay:
According to Section 40(1) of the Advocate Act, 1961, an Appeal made under Section 37 or
Section 38 shall not operate as a stay of the order appealed against, but the Disciplinary
Committee of India and the Supreme Court as the case may be, may for sufficient cause direct
the stay of such order on such terms and conditions as it may deem fit. Rule 29 of chapter I Part
VII of the Bar Council of India Rules provides that an application for stay shall be accompanied
by an affidavit and the fee prescribed by the Bar Council of India17.
4. Appeal:
A) Appeal to the Bar Council of India -
In case the order of punishment has been passed by the Disciplinary Committee of the
State Bar Council, an Appeal may be preferred to the Bar Council of India under Section 37 of
the Advocates Act, 1961. It provides that any person aggrieved by an order of the Disciplinary
Committee of a State Bar council made under Section 35, of the Advocate-General of State may,
within 60 days of the date of the communication of the order to him, prefer an appeal to the Bar
Council of India18. Under Section 37(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
deemed fit; Provided that no order of the Disciplinary Committee of the State Bar Council shall
be varied by the Disciplinary Committee of the Bar Council of India so as to prejudicially affect
the person aggrieved without giving him a reasonable opportunity of being heard.
B) Appeal to Supreme Court -
17
Sec 40, Advocates Act, 1961.
18
https://www.legistify.com/indiankanoon/advocates-act-1961/section-42-powers-of-disciplinary-committee/
As per section 38 of the Advocates Act,1961 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 60 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 fit19: Provided that no order of the Disciplinary Committee of the bar Council of India
shall be varied by the Supreme Court so as to prejudicially affect the person aggrieved without
giving him a reasonable opportunity of being heard.
The Bar Council of India has framed the rules as to the procedure to be observed in case of
Appeal. The Appeal memo in a prescribed form to be accompanied with the certified copy of the
order appealed against signed by the appellant with a prescribed fee within limitation period.
Delay can be condoned if satisfactorily explained and to be supported by an affidavit.
Thus, an appeal against the order passed by the Disciplinary Committee may be preferred to the
Bar council of India and an appeal against the order of the Bar council of India may be preferred
to the Supreme Court20.
 Consequences of Disciplinary Proceedings:
a) If an order of reprimand is made against an advocate the same shall be noted against the
name of the advocate in the State roll.
b) If an order of suspension of practice is made against an advocate then he shall be debarred
from practicing in any court or appear before ant tribunal, authority or person during the
suspended period of time.
c) If order of removing an advocate from practice is made, then their name will be struck off
from the State roll.
d) In case of suspension or removal from practice, the certificate of enrolment granted to the
advocate shall be recalled.

3. FACTS OF THE CASE

The present case was filed in the Supreme Court under Section 38 of the Advocates Act, 1961 by
19
Sec 38 Advocates Act, 1961.
20
https://www.srdlawnotes.com/2016/11/remedies-against-order-of-punishment.html
Achal Saxena, the complainant. She filed a complaint on 29.06.2005 against the respondent
advocate, Mr. Sudhir Yadav. On receipt of that complaint, an office report placed before the Bar
Council of Uttar Pradesh (for short, `State Bar Council'). The State Bar Council then decided to
refer the complaint to the Disciplinary Committee. On reference made to the Disciplinary
Committee of the State Bar Council, it took cognizance of the complaint on 15.01.2006.21
In the said complaint, it was alleged that the respondent advocate who was staying in the
neighborhood and had good relations with the family of the appellants, took original certificates,
photographs, and signature of the appellant no.1 on some blank papers on the pretext that he will
register her name with the Employment Exchange. It is also alleged that the respondent got a
joint photo of himself with the appellant no.1. Because of some dispute between the parties, the
appellant no.1 called upon the respondent to return her original certificates and blank signed
papers. The respondent then started blackmailing the appellants and their father. The respondent
also threatened the appellants and demanded a sum of Rs. 1 lac. On refusal to make payment, he
surreptitiously filed an application in the name of appellant no.1 along with a forged caste
certificate mentioning the appellant no.1 as his wife. 22 The respondent then registered a false
criminal case against the appellants for offences punishable under Sections 420, 467, 468, 471
and 506 of IPC. He also filed a complaint against the appellants, their father and one Shri R. C.
Pandey, under Section 500 of IPC. The appellant no.2 was arrested in connection with the
criminal case and later released on bail after a month. Besides the criminal cases, it is alleged
that the respondent fraudulently moved an application on behalf of appellant no.1 before the
Dowry Prohibition Officer, Rampur on 13.05.1998 against himself. That was dismissed on 1st
July, 1999 due to non-appearance of appellant no.1. It is also alleged that the respondent was
blackmailing the appellant no.2, who was working as a Clerk in the District Development Office,
Rampur. The thrust of the allegations in the complaint was about the fraudulent activities of the
respondent, including an attempt to blackmail the appellants and their family members for
ulterior purposes.

Decision of DC of SBC
The Disciplinary Committee vide order dated 23.12.2006 accepted the allegations made against
the respondent; and awarded him a punishment under Section 35 (3) (d) of the Advocates Act,
21
https://www.lawyerservices.in/Achal-Saxena-D-and-Another-Versus-Sudhir-Yadav-2017-03-02.
22
https://www.legitquest.com/case/achal-saxena-d-another-v-sudhir-yadav/A3C7E
1961 (for short "the said Act"), directing removal of his name from the State Roll of Advocates.

Decision of BCI
This decision was challenged by the respondent before the Bar Council of India. The
Disciplinary Committee of the Bar Council of India vide order dated 21.01.2010 allowed the
appeal filed by the respondent and set-aside the order passed by the Disciplinary Committee of
the State Bar Council dated 23.12.2006. The Bar Council of India, being the Appellate Authority,
accepted the contention of the respondent that the Disciplinary Committee of the State Bar
Council could not have proceeded with the inquiry after lapse of one year, in view of Section 36-
B of the Act.23
On perusal of the record, the Appellate Authority found that a false order sheet was prepared by
the Disciplinary Committee of the State Bar Council and the possibility that the inquiry was
conducted only by one Member of that Committee could not be ruled out. The Appellate
Authority also noted that the appellants herein could not deny that position. The appellants,
however, contended that any irregularity committed by the Disciplinary Committee of the State
Bar Council ought to be ignored in light of Section 13 of the Act. That contention was negative
by the Appellate Authority on the finding that there was no dispute about the proper constitution
of the Disciplinary Committee of the State Bar Council.
Further, Section 13 of the Act will not apply for ignoring the gross illegality committed on
account of only one Member of the Disciplinary Committee conducting the inquiry. The
Appellate Authority then noted that the complainant had submitted a written application on
03.11.2006 for withdrawal of her complaint against the respondent. The Disciplinary Committee
of the State Bar Council, however, proceeded with the matter and that too without giving a fair
opportunity of hearing to the respondent including an opportunity to cross examine the
witnesses. The Appellate Authority also noted that the respondent was never engaged as an
advocate by the appellants before any Court of law or at any point of time.
The Appellate Authority then noted that a transfer application along with an affidavit was filed
by the respondent on 11.07.2006, against the Disciplinary Committee of the State Bar Council.
That was received in the office on 17.07.2006. However, no order was passed on the said transfer
application. Noticing these deficiencies, the Appellate Authority held that the respondent was
seriously prejudiced in the inquiry held by the Disciplinary Committee of the State Bar Council
23
http://document.manupatra.com/supremecourt/2001-2003/sc2017/SC20172803171607364.html.
and therefore, allowed his appeal by setting aside the order of the Bar Council of U.P. dated
23.12.2006.
The appellants have challenged the aforementioned decision of the Bar Council of India to the
Apex Court under Section 38 of the Advocates Act, 1961.24

4. RATIO OF THE CASE

After considering the arguments of both sides at length, the Apex Court held that the Appellate

24
Supra Note 16.
Authority (the Bar Council of India) has rightly held that the Disciplinary Committee of the State
Bar Council could not have continued with the inquiry after expiry of one year from the receipt
of the complaint and therefore, the order passed on 23.12.2006, by the Disciplinary Authority of
the State Bar Council was illegal.
The Apex court held that the State Bar Council was obliged to transfer the inquiry to the Bar
Council of India after expiry of one year from the receipt of the complaint. Admittedly, the
appellants had submitted the complaint to the State Bar Council on 29.06.2005. On receipt of
that complaint, an office report was prepared on 17.12.2005 and the matter was placed before the
State Bar Council, which in turn decided to refer the dispute to the Disciplinary Committee (vide
its Resolution No.2702/05 dated 18.12.2005).25
Indeed, the Disciplinary Committee took cognizance of the said complaint on 15.01.2006.
However, the mandate of Section 36-B of the Act is that the Disciplinary Committee of the State
Bar Council is obliged to dispose of the complaint received by it under Section 35 expeditiously
and in each case, the proceedings must be concluded by it within a period of one year from the
date of the receipt of the complaint or the date of initiation of the proceedings at the instance of
the State Bar Council, as the case may be. Failing which the State Bar Council is obliged to
transfer the inquiry to the Bar Council of India. In the present case, a formal application was
filed by the respondent on 11.07.2006 for transfer of the complaint. However, no order was
passed on the said transfer application.
Considering the fact the State Bar Council passed a Resolution on 18.12.2005, whereby it
decided to refer the complaint to its Disciplinary Committee, the Disciplinary Committee ought
to have ensured the disposal of the proceedings within one year there from i.e. before
17.12.2006. The inquiry in the present case, however, was concluded by the State Bar Council on
23.12.2006, consequent to the pronouncement of the order of its Disciplinary Committee.
Accordingly, the view taken by the Appellate Authority in the impugned judgment was agreed
upon by the appellate court.
The court also found that the Disciplinary Committee of the State Bar Council did not offer an
opportunity of hearing to the respondent including to cross examine the witnesses, which was
fatal and caused serious prejudice to the respondent in his defense during the inquiry. Thus court
upheld that the Appellant Authority was justified in allowing the appeal preferred by the

25
http://document.manupatra.com/supremecourt/2001-2003/sc2017/SC20172803171607364.html
respondent; and for setting aside the order passed by the Disciplinary Committee of the State Bar
Council.26

5. SECTION 36 B- AN ANALYSIS
In the system of justice provision, it is very important that a person gets justice and on time.
26
Id.
Indian legal mechanism is particularly infamous for this particular aspect of delay in justice
provision which ultimately defeats if not fully, at least partially the purpose of the whole trial. If
the trial is not made in a speedy manner, it cannot be deemed as fair. It is unimaginable that how
much loss our nation be suffering from ethical and moral point of view at least, because of the
delay in disposing of the cases. Innocent person is the worst effected unfortunate, who has to
take shelter of the courts for getting justice, which he can never calculate as to when than so
called justice be finally arriving. None can compute his worries and the frustrations. Such
sufferings and hardships made him to conclude that Delayed Justice is Denied Justice. It is
obvious to say that inordinate and unnecessary delay defeats the end of justice. This is the reason
why Apex Court in numerous cases has held that the right to speedy trial is the right implicit in
Article 21 of the Constitution of India spreading over through all stages in any proceeding.27
The Apex Court from time to time has upheld that Fixation of time period for disposal of cases is
constitutionally valid and is very much needed for early disposal of cases. The courts have to
respect the time limit and strictly adhere to it.28
The same stringent provision is mentioned under Sec 36B. It states the disciplinary committee of
a State Bar Council shall dispose of the complaint received by it under section 35 expeditiously
and in each case the proceedings shall be concluded within a period of one year from the date of
the receipt of the complaint or the date of initiation of the proceedings at the instance of the State
bar Council, as the case may be, failing which such proceedings shall stand transferred to the Bar
Council of India which may dispose of the same as if it were a proceeding withdrawn for inquiry
under sub-section (2) of section 36.
The term mentioned in the section is a “shall” provision which clearly lays the intention of the
legislature to make it a mandatory provision. Since the language used by legislature and its
intention is clear and unambiguous, the literal interpretation of the section has to be done.
Therefore the State Bar Council has to mandatorily transfer the proceeding to the BCI if it fails
to dispose the same within the prescribed time limit. Non-compliance of this would ultimately
amount to violation of provisions of this Act. This non-compliance also prejudices the interest of
the parties as Right to speedy and expedient disposal is a right very much inherent under Article
21 of the constitution.
This section is purely intended to be a step towards speedy and expedient disposal of cases. It is
27
A.R. Antulay v R.S. Nayak (1992) 1 SCC 225
28
Imtiyaz Ahmad v. State Of U.P.& Ors Criminal Appeal No S.254-262 of 201
basically a provision which seeks to extinguish the delayed justice. A lot of times, Advocates
have their known people in the State Bar Council which entitle them to seriously affect the
course of proceeding pending against them. They delve into unethical practices like prolonging
the case by asking for frequent adjournments, delaying in passing the file, etc. This affects the
rights and interest of the complainant who is generally a client. To avoid all such anomalies and
malpractices, in the year 1974, Sec 36 B was inserted which mandated the SBCs to dispose the
proceeding pending before it within a year from the date of complaint, failing which they have to
necessarily send the case to the Bar Council.

6. CONCLUSION
Section 36 B of Advocates Act, 1961, states the disciplinary committee of a State Bar Council
shall dispose of the complaint received by it under section 35 expeditiously and in each case the
proceedings shall be concluded within a period of one year from the date of the receipt of the
complaint or the date of initiation of the proceedings at the instance of the State bar Council, as
the case may be, failing which such proceedings shall stand transferred to the Bar Council of
India which may dispose of the same as if it were a proceeding withdrawn for inquiry under sub-
section (2) of section 36.
The mandate of Section 36-B of the Act is that the Disciplinary Committee of the State Bar
Council is obliged to dispose of the complaint received by it under Section 35 expeditiously and
in each case, the proceedings must be concluded by it within a period of one year from the date
of the receipt of the complaint or the date of initiation of the proceedings at the instance of the
State Bar Council, as the case may be failing which the State Bar Council is obliged to transfer
the inquiry to the Bar Council of India.
The Supreme Court in Kumari Achal Saxena vs. Sudhir Yadav, has held and settled the position
that Disciplinary Committee of the State Bar Council cannot continue with the disciplinary
inquiry against a lawyer after the expiry of one year from the receipt of the complaint and any
order passed after it, is illegal.
 BIBLIOGRAPHY
STATUTES AND BOOKS:
 Advocates Act, 1961
 Bar Council of India certificate Verification rules, 2005
 M. P. Jain, Outlines of Indian Legal & Constitutional History, LexisNexis Butterworths
Wadhwa Nagpur, Gurgaon, 2012.

ARTICLES AND WEBSITES:

 http://document.manupatra.com/supremecourt/2001-2003/sc2017/
SC20172803171607364.html
 http://document.manupatra.com/supremecourt/2001-2003/sc2017/
SC20172803171607364.html.
 http://www.barcouncilofindia.org/about/about-the-legal-profession/history-of-the-
legalprofession/.
 https://dictionary.cambridge.org/dictionary/english/misconduct
 https://lexquest.in/bcis-new-certificate-practice-rules-newbie-advocates-banned practicing-
hcsc.
 https://www.latestlaws.com/articles/structure-of-bar-councils-in-india-a-brief-
introductionhistory.
 https://www.lawyerservices.in/Achal-Saxena-D-and-Another-Versus-Sudhir-Yadav-2017-03-
02.
 https://www.legitquest.com/case/achal-saxena-d-another-v-sudhir-yadav/A3C7E
 https://www.srdlawnotes.com/2016/11/remedies-against-order-of-punishment.html