ILNU, Ahmedabad

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CASE ANALYSIS
SHAMBHU RAM YADAV V. HANUMAN DAS KHATRI

CITATION – AIR 2001 SC 2509

Vagmee Sk Mishra| 20BAL146|

20BAL146
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CASE ANALYSIS –

SHAMBHU RAM YADAV V. HANUMAN DAS KHATRI

CITATION – AIR 2001 SC 2509

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INDEX OF CASE ANALYSIS:

1. FACTS OF THE CASE

2. ISSUES

3. ARGUMENTS OF APPELLANT AND RESPONDENT

4. RULES APPLIED TO THE CASE

5. APPLICATION AND ANALYSIS

6. CONCLUSION

7. STUDENT OPINION

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FACTS OF THE CASE:

• This is a case dealt under advocates act of 1961.

• The complaint was filed by applicant against the respondent before the Bar Council of Rajasthan
who later referred this complaint as a disciplinary action matter to the state bar council.
• Under this complaint the Advocate of Mahant Raj Giri wrote a letter in response to the question
of his client that the judge who was dealing with the case of Mahant Raj Giri accepts bribes, to
give favorable orders in the favor of the one who is giving the bribe.
• The advocate instructed his client Mahant Raj Giri to either gain the favor of the judge by some
actions in the personal capacity or to send him an amount of rupees 10000/-.
• The respondent advocate accepted the fact that he had given the letter to his client in response
to the question of the client and the fact that the judge has been terminated because of taking
illegal gratification, the respondent followed the norms of professional ethics by bringing the
matter to light and informing his client Mahant Raj Giri that the judge accepts bribe is under
purview of ethical behavior and is within the the Ambit of professional ethics followed by the
advocate.
• Furthermore, this act of respondent was in pure interest of his client and the matter of fact that
the money did not reach the judge its self-evident that the client became aware of the
scrupulous behavior of the judge and therefore this cannot be termed as professional
misconduct.
• The state bar council concluded after considering all evidences that the respondent was guilty
of professional misconduct and suspended him from practice for a period of 2 years.
• The respondent filed a petition under Section 44 of the advocates act. This petition was
transferred to the disciplinary committee of the bar council of India.
• The disciplinary committee of Bar Council of India substituted the reprimand punishment on
consideration of all relevant facts and directed expulsion of the respondent from the profession.
• The Bar Council of India concluded that very high standards of morality and unimpeachable
sense of legal and ethical propriety is expected from all advocates. Claiming, it is the duty of the
bar council of India to guard the professional ethics, and the potential disrepute on account of
action of few should not disrupt the credibility of entire professional Arena and therefore, it is
having to be dealt in an utmost strict manner.
• Subsequently, the the respondent filed another review petition but the review petition was
debarred stating the fact that the disciplinary committee cannot modify the earlier order

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because a different view cannot be taken on a decided judgement on the same set of facts. As
a result, the review petition was debarred and the judgement of completely barring the
advocate from the legal profession was upheld.

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ISSUES RAISED:
Overall, three issues raised in the case of Shambhu Ram Yadav V. Hanuman Das Khatri:

• First being, Is the punishment of the expulsion of advocate from the profession is appropriate
or not?
• Second being, Whether the disciplinary committee in exercise of its review power could alter
the initial order of suspension?
• Third being, Is the Advocate guilty of professional misconduct?

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ARGUMENTS OF APPELLANT:

• The Appellant contended the fact that the disciplinary committee concluding that the
respondent had no intention to bribe the judge is not relevant as there is no record on hand to
suggest it. The appellant also contended that the earlier order which was passed with
consideration of all the the relevant factors and evidences with conclusion that advocate was
not fit to be a professional lawyer as having written such letter is an utter disregard for
professional ethics and any punishment lesser than expulsion from the profession cannot be
imposed.

• It was contended that the advocates are not merely professionals but they are the officers of
the court. Besides the court they owe a duty of responsibility towards the society for public
good and administration of Justice. The said public interest is required to be protected by those
on whom the power has been entrusted i.e., the advocates who are the Guardians of public
rights and play a key role in retributive and distributive Justice. State bar council have requisite
power and a duty to all members of legal profession and inflict appropriate penalty on members
who are found guilty of professional misconduct.

• The appellant contended that the review petition which was filed by the respondent is without
any valid ground, as the penalty for permanent debarment is completely valid; as it is the duty
of the bar council to maintain professional morality and required standard and failure to comply
will invite appropriate action against the perpetrator. Credibility of council in taking the
disciplinary action either in law for any other vocation depends on how they deal with cases of
delinquency involving serious misconduct which has the capability to Erode the credibility of
entire profession and therefore, the punishment given to the respondent is commensurate with
the Gravity of misconduct.

• It was contended that the legal profession is not a mere trade or business but a noble profession
which has a heavy responsibility vested on the officers of the Court. It is evident that committee
has given the decision considering all relevant evidences, information, the age factor of the
respondent and the number of years the respondent has put into profession. It is expected from

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a person who has put 50 years in the profession to have a higher standard of morality and
irrevocable sense of legal, ethical, virtual, and moral propriety and therefore the bar council
decision of anything less than expulsion of respondent may lead to a potential disrepute which
may shake the credibility of the bar council in dealing with cases of professional misconduct
and the thrust laid in by the professional advocates in the Council.

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ARGUMENTS OF RESPONDENT:

• Respondents contented that the letter was written by the Advocate to the client not to render
the client bribe the judge and on a deep investigation it was found that the Advocate merely
wrote the letter as a reply to the question of the client. It was simply a reply given regarding the
the conduct of the judge and was not an offer for a suggestion to the client to bribe judge.

• Respondents also contended that the Advocate was an old man of 80 years and has been in a
profession for last 50 years and is such a long innings of his professional career this is the first
time Such an allegation of professional misconduct has been put on him although there was no
intention for bribe, there may have been an irresponsible manner but not professional
misconduct.

• It is also contended that, the committee should keep in mind the age and the past clean record
of the petitioner and the gravity of offence the decision of the committee to remove the
Advocate from the legal profession was not appropriate and cannot be considered justice as
the impugned order is not commensurate to the gravity of offence the appropriate punishment
would be to reprimand the Advocate and warn him that he should not encourage such activities
in life and must be careful while corresponding to his client.

• The respondents also contended that the bar council as a duty to ensure that lawyer’s
adherence to required standards and take appropriate actions against them. This action of BAR
council of permanent debarment will inflict inappropriate penalty on the advocate and the
requisite power and the duty of supervising of the bar council will be severely questioned.
Which would result in weakened trust in the council's decision to deal with cases of delinquency
and this erosion of credibility and reputation can have serious and catastrophic consequences.

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RULES APPLIED TO THE CASE: [CAN BE SKIPPED/SKIMMED]

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. 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 practising 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.

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SECTION 36:
Disciplinary powers of Bar Council of India.—

• Where on receipt of a complaint or otherwise the Bar Council of India has reason to believe that
any advocate, whose name is not entered on any State roll has been guilty of professional or
other misconduct, it shall refer the case for disposal to its disciplinary committee.

• Notwithstanding anything contained in this Chapter, the disciplinary committee of the Bar
Council of India may, either of its own motion or on a report by a State Bar Council or on an
application made to it by any person interested, withdraw for inquiry before itself any
proceedings for disciplinary action against any advocate pending before the disciplinary
committee of any State Bar Council and dispose of the same.

• The disciplinary committee of the Bar Council of India, in disposing of any case under this
section, shall observe, so far as may be, the procedure laid down in section 35, the references
to the Advocate-General in that section being construed as references to the Attorney-General
of India.

• In disposing of any proceedings under this section the disciplinary committee of the Bar Council
of India may make any order which the disciplinary committee of a State Bar Council can make
under sub-section (3) of section 35, and where any proceedings have been withdrawn for
inquiry the State Bar Council concerned shall give effect to any such order.

SECTION 37:
Appeal to the Bar Council of India.—

• Any person aggrieved by an order of the disciplinary committee of a State Bar Council made
1[under section 35] 2[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.

• Every such appeal shall be heard by the disciplinary committee of the Bar Council of India which
may pass such order 2[(including an order varying the punishment awarded by the disciplinary
committee of the State Bar Council)] thereon as it deems fit: 2[Provided that no order of the
disciplinary committee of the State Bar Council shall be varied by the disciplinary committee of

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the Bar Council of India so as to prejudicially affect the person aggrieved without giving him
reasonable opportunity of being heard.]

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 1[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 the Bar Council of India have approved it.

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APPLICATION /ANALYSIS/JUDGEMENT:

• In the judgement the council stated that legal profession is not a trade or business but it is a
noble profession in which the professionals have the responsibility to encourage honesty and
strive for justice for the client, if it is legally possible.
• The credibility and the reputation of profession depends on how the professional display
themselves in the public sphere they have the responsibility vested under advocate act that
they must display Supreme honor and discipline. They at no point of time can disregard the
rules and act arbitrary which makes the reputation of profession comes under the cloud. For
this regard any member of the profession.
• With all factors taken into consideration, the Council concluded that portion of the letter
written by the advocate contained considerable misrepresentation and professional
misconduct. Tough, the advocate maybe replying to the question asked by the client he
admitted that he is referred the client to either bribe the judge of 10,000/- Rupees or convince
him in the personal capacity the committee by applying well settled principles and exercise of
the Power vested by advocates act decided to restrict the respondent from practicing further
in the legal profession and the order given by the state bar council advocate from practice by
two years is not in accordance which the misconduct.
• The fact that advocate is in the profession for past 50 years, the bar council expected a very
high standard of morality and unimpeachable ties of legal and ethical propriety, which the
Advocate failed to display.
• The bar council of India must be more sensitive to the potential disrepute an account of action
of the Advocate as it may shake the credibility of the profession and thereby put at stake other
members of the bar therefore under these conditions the bar is having no hesitation in setting
aside impugned order and debarring advocate from practicing further.

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CONCLUSION:
In the conclusion, the punishment of expulsion of advocate from profession is completely appropriate
and within the terms of the professional misconduct shown by the advocate. The disciplinary
committee exercise of review power could not alter the initial order of suspension the decision could
not be changed which was taken under complete consideration of all evidences as the set of fact and
matter of evidences is the same. The Advocate is guilty of professional misconduct as writing the letter
containing compromising information is not within the Ambit of professional ethics of an advocate.

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STUDENT OPINION:

• Advocates Institute one of the privileged classes and enjoys exclusive rights for application of
law and Guardian of public rights. The advocates as officers of the court and representatives of
the client must adhere to a very high standard of conduct which is reasonable in status and
responsibility. It is worthy to note that the state bar council and Bar Council of India can take
appropriate disciplinary action against the advocates who fail to comply with the professional
ethics. Their misconduct is not only within their personal and professional capacity but it
endangers the professional capacity of the entire legal fraternity.
• To consider the scope of ‘misconduct’ all advocate always must consider themselves in a
gentlemanly fashion, the responsibility towards the client as well as the court and other
stakeholders must be kept in mind. Misconduct is a wide expression and may or may not involve
moral turpitude, according to black's law dictionary misconduct is defined as “any transgression
of some established and definite rule of action, a Forbidden act, an unlawful or improper
behavior, willful in character, a dereliction of Duty”.
• In different cases the apex court opined that the word ‘misconduct’ has no precise meaning and
it is open to the subject matter and context where it is used. In the context of an advocate any
conduct that can render be advocate unfit for his profession or poses imminent danger to
administration of Justice can be considered as misconduct, for which disciplinary action may be
initiated by any bar council. The Advocate as an officer of the court is responsible to render
services which are of absolute performance and optimum quality; lapses in services involving
incomplete and inaccurate filing and wrong pleading before the court of law can be considered
Grave and professional misconduct. Other misconduct may include - personal check,
verification, nonpayment of court and process fee, failure to remove objection, failure of
professional admission, disservice to the litigants, and avoiding Court ethics leading to delay in
disposal of matters and reduced efficiency of judicial system.
• Advocates are also required to uphold the dignity and maintain respectful attitude towards the
court as the bar and bench form a dynamic partnership assisted by a noble aim for great social
and moral responsibility to the public and ensure proper administration of Justice. The
advocates are the key who binds the mutual relationship ties between the judiciary and the
public and maintain ordinal relations between the two.
• The Advocate at no point of time should disrupt the decorum of the court or overstep the limit
of propriety. The standard of conduct of advocates is a broad Avenue and display a variety of
Canon of ethics and high tone of behavior. It can be held that professional ethics cannot be

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contained in bar council rule or any other rule book as different avenues require different
professional behavior and different actions of conscience which will command the member of
calling of justice to obey rules of morality and utility. Therefore, the misconduct of advocate
can be considered a contact-specific dynamic and a broad Avenued topic which captures the
role of advocate in society at large.

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