This is not a fit case to be proceeded with under the Contempt of Courts Act, 1971.

The Judgment which he(KRISHNA IYER)himself characterises as obiter dicta may be left
alone without any comments.

Contempt, proceedings will stand dropped.(All three Judges concurred with this view.)

In the matter of Mr. D, an Advocate of the Supreme

Court (In re D)
Citation:AIR 1956 SC 102: (1955) 2 SCR 1006

Quorum:Bijan Kumar Mukherjea, CJ, SudhiRanjan Das, J (who delivered the judgment in this
case), T.L. VenkataramaAyyar

Brief Facts: Mr. D/respondent was an advocate of some standing in the Bombay High Court who
was also enrolled in the Supreme Court. He was convicted of an offence under the Bombay
Prohibition Act by Magistrate Mr.Sonavane which on appeal was upheld by the Bombay
although it altered the quantum of punishment. Shortly after the conviction by Magistrate, the
Magistrate Mr.Sonavane made a report to the Bombay High Court Registrar as to the conduct of
Mr. D who appeared in person as the accused before him. A tribunal (Bar Council Tribunal) was
constituted to enquire into the matter on two counts:

1. report of misconduct

2. judgement of High Court upholding Mr.D’s conviction for offence under the Bombay
prohibition Act

The proceedings before the Tribunal extended for around 1.5 years towards the end of which
period Mr. D sent a letter to the Bar Council tribunal and the High Court requesting the tribunal
to send a report to the high court in terms of his pleading guilty to the charges levelled against
him. Thereupon the tribunal made a report to the high court holding the allegations to be proved
on Mr. D’s own admission and recommended that a very serious notice should be taken of Mr
D’s conduct. On the second count tribunal held that 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.

54
After perusal of the report the High Court heard the respondent for final disposal. Counsel for
Mr. D offered an unconditional and unqualified apology on behalf of Mr. D and pleaded that the
ends of justice would be met if the Court administered only a warning to Mr. D. But the High
Court found the misconduct to be so serious and so grave that it suspended Mr. D from practice
for a period of one year. Mr.D’s application for certificate for fitness to appeal was refused. Mr.
D’s Special Leave Application before SC was also dismissed.

The Supreme Court however had to deal with matter as per Order 4 Rule 30 of the Rules of
Supreme Court under which Rule Mr.D was required to show cause why in the matter
adjudicated by Bombay High Court appropriate action, disciplinary or otherwise should not be
taken by Supreme Court. In answer to the summons under the Rule Mr. D filed a petition, by
way of showing cause, stating that the report of the Magistrate was an exaggerated and
manifestly incorrect version of the incidents that occurred and that Mr.D was compelled to tender
a humiliating apology and requested the Supreme Court to direct that a proper inquiry be held in
the matter by the Supreme Court.

The main contention of Mr D was that the Tribunal had no jurisdiction to enter upon the
inquiry 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.

Findings of the Supreme Court: The SC pointed out that as his special leave to appeal was
dismissed the SC was not concerned with the proceedings before Bombay HC or the Tribunal.
The respondent then asked for fresh inquiry to be conducted.

The SC found that Mr. D had admitted the truth of everything contained in Mr.Sonavane’s report
and that he was not referring to any particular statement to claim that the tribunal was manifestly
incorrect.

The court emphasised that a person holding the responsible position of an Advocate of a High
Court and of SC cannot be permitted to play with the Court in this way. Mr. D had tendered an
unconditional apology evidently in the hope that he would get away with it by merely tendering
an apology. As that tactic did not work he is now asking for inquiry which he had himself
avoided by means of his admission and apology.

55
The SC went through Mr.Sonavane’s report and agreed with the finding of the High Court. The
SC found that the conduct of Mr. D in the criminal trial was indefensible by any standard as
it discloses a continuous and persistent attempt by him to be rude 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 merits severe condemnation.

The SC referred to the decision of the Bombay High Court in The Advocate-General of Bombay
v. Three Advocates 1934 wherein it was held that 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
professional or other capacity leaving it to the discretion of Court to take action only in suitable
cases. The Court also referred to Calcutta HC’s decision in In the matter of an Advocate 1936
and In re a Pleader 1943 to support this interpretation. The SC thereby found Mr. D guilty of
conduct unworthy of any member of legal profession although such conduct was not done
in professional capacity.

Held: The SC also suspended Mr.D from practice for the time fixed by Bombay High Court.
This was in view of the fact that Mr. D being an advocate of the Supreme Court was entitled
under the Supreme Court Advocates (Practice in High Courts) Act to exercise his
profession in all Courts throughout India.(thus, sole judgment of suspension by Bombay HC
would have been of no effect had SC not interfered)Hence any suspension for a period less than
that fixed by Bombay HC would lead to serious anomaly and inconvenience.

In the matter of Summons under Order IV Rule 30

of the Supreme Court Rules 1950 (as amended), 1956
SCR 811 [Quorum: B. Jagannadhadas, T.L. Venkatarama Aiyyar, Bhuvneshwar P. Sinha]

Facts:

The complainant, Attar Singh, engaged Sardar Raghbir Singh, a Senior Advocate of the Supreme
Court, who associated with himself with a Junior Advocate, Madan, and the respondent M, a

56
P.J. Ratnam v. D. Kanikaram and Ors., AIR 1964 SC
244 – 7 pages

Bench – C.J. Bhuvaneshwar Prasad Sinha, J. JC Shah, J. N Rajagopala Ayyangar

Brief Facts

 Respondents and one other were Pl. in O.S. 432 of 1951 before the District Munsiff,
Guntur – claim for possession of certain lands; appellant was the advocate of the
respondents.
 Suit dismissed by the Trial Court and appealed before the Sub – Judge, Guntur – pending
disposal of appeal court directed sale of standing crops on suit - land and deposit of
proceeds in the court; accordingly, sum of Rs. 1,600/- deposited in Court on 19th
December, 1951.
 Appeal allowed by Sub – Judge and the unsuccessful defendants of that cases preferred a
second appeal before the High Court – meanwhile, Pl. applied to withdraw the sum
deposited in Court.
 interim order of high court granted liberty to Pl. to withdraw the money, pending disposal
of second appeal, after furnishing security of immoveable property.
 Security furnished, withdrawal ordered – cheque petition EA 250 of 1952 filed and
allowed – cheque issued to the Advocate (Appellant of this case) for a sum of Rs.
1,452.40/- which was left over after deduction of poundage etc. in favour of the Pl.
(respondents of this case)
 Appellant advocate cashed the cheque on 23 April, 1953 and the allegation against him is
that he did not pay the sum to the Respondents despite their repeated demands.
 Second Appeal before the High Court was allowed in August 1955 and the sum had to be
refunded to those defendants.
 8th February 1956, Pl.(Respondents) made a written demand on appellant(lawyer)
claiming the unpaid proceeds from the cheque that was issued in their credit but which
the Appellant allegedly did not hand over.
 April 14th 1956 appellant replied claiming to have paid over the said sum on their passing
a receipt and that the receipt was in the bundle of case papers which had been returned to
the Respondents.

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  Before receipt of reply, the respondents filed complaint u/s 12 and 13 of the Legal
Practitioners act alleging non – payment of money and charging the advocate with
professional misconduct and praying for an enquiry.
 As the Appellant was an advocate, the complaint was treated as one u/s 10(2) of the Bar
Councils Act, 1926.
 Explanation of advocate called for; District Judge, Guntur directed to hold enquiry into
the matter and submit report to the High Court.
 District Judge’s report held that Appellant’s (lawyer) case was not unbelievable and that
he was entitled to the benefit of the doubt.
 High Court hearing of the same – alleged that material witnesses were not examined –
agreeing with the same HC directed the Dist. Judge to summon and examine the
witnesses, record and submit their evidence.
 Subsequently, matter was heard by a three judge bench of the HC and they held that the
charge against the appellant i.e. that he did not pay over the money was clearly made out
and held him guilty of professional misconduct and suspended him from practise.
 Appellant (lawyer) preferred a SLP under Article 136 challenging the decision.

Issues and Decision

 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. Section 10(2) of the Indian Bar Councils Act lays
down that upon receipt of a complaint, by a court, or Bar Council or any person, as to the
conduct of an Advocate, the HC (if it does not summarily reject such complaint) refer the
case for inquiry to the Bar Council, or after consultation with the Bar Council to the
Court of the District Judge.
Held – matter is a question of fact; the matter was not agitated before the HC at the time
of hearing or at the time of applying for certificate to appeal before the SC under Article
136. Thus Court declined to look into the factum of whether or not such a consultation
had taken place, and if it did not then why it did not etc. even if the section was
mandatory. Presumption of legality of judicial and official acts – absence of explicit
statement in the order of reference u/s 10(2) to the Dist. Judge about consultation with
Bar Council did not automatically prove that there was no consultation.

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 Complaint filed by respondents – not signed or properly verified per relevant HC rules
– dissimilarity of signatures of respondents – the petition was not filed by the
respondents but by someone inimical towards the Appellant.
Held – objection considered frivolous and dismissed
 As the complaint against the lawyer was misappropriation of money, the court should
have asked the complainants to prosecute the appellant for the same and not initiated
action against the lawyer u/s 10.
Held – without going into the substantive law presented, the court stated that the object of
a proceeding in respect of professional misconduct differs from others – proceedings
under the Bar Councils Act are taken to ensure that the highest standards of professional
conduct are maintained at the Bar – such proceedings 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 to do so. Other proceedings for the purpose of
enforce the law and punish the offender. Although court accepted that if ordinary
proceedings were initiated against the erring lawyer and he was acquitted, there would be
no scope for a charge of professional misconduct on the same facts. Discretion in
deciding how to treat such complaints – not beyond the jurisdiction of the court to
proceed with enquiry for professional misconduct when the charge against him is an
offence under ordinary criminal law – misconduct in this case intimately connected with
duty of lawyer to his client in his professional capacity.
Stephens v. Hill - 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.
 Procedural irregularity - mode in which the case against the appellant was
conducted - evidence on behalf of the complainants was permitted to be led after the
appellant had examined himself and it was urged that thereby the complainants had
been afforded an opportunity of filling up any lacuna in their case.
Held – dismissed
 Pl. No. 4 (Kagga Veeraiah) had admitted that he and the other Pl.’s had received the
proceeds of the cheque and the HC was wrong in finding against the appellant
Held – case of the complainants that 4th Pl. (Kagga) died in 1957 – man produced as
Court Witness No. 7(CW 7) claiming to be Kagga and stating that the money had been
paid was an impersonator – death certificate of Kagga produced – cross examination of

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 the CW 7 was unsatisfactory; either CW 7 was an impersonator or being the real Kagga
he was lying – SC did not interfere with the HC’s appreciation of this fact.
 Punishment of 5 years too harsh
Held – punishment given too lenient in view of misappropriation of client’s money and
bringing false evidence - refused to change the punishment.

SUPREME COURT BAR ASSOCIATION v. UNION OF

INDIA
(1998) 4 SCC 409

CORAM:
HON'BLE JUSTICE S. C. AGRAWAL, HON'BLE JUSTICE G. N. RAY, HON'BLE JUSTICE
DR. A. S. ANAND,
HON'BLE JUSTICE S. P. BHARUCHA& HON'BLE JUSTICE S. R. BABU

FACTS

In Supreme Court bar Association case, the Supreme Court revisited its earlier decision in Vinay
Chandra Mishra, Re. In Vinay Chandra Mishra case, the Supreme Court punished a lawyer for
contempt. While meting out the punishment, apart from sentencing for imprisonment, the lawyer
was suspended from practice for a period of 3 years.

Aggrieved by the decision of the Court to suspend the lawyer for 3 years under contempt
jurisdiction, the Supreme Court Bar Association, through its Honorary Secretary, approached the
Supreme Court under Art.32 of the constitution.

ISSUES

Whether the Supreme Court has powers to enquire into or debar / suspend a lawyer for
professional misconduct, which is an exclusive jurisdiction of Disciplinary Committee of BCI,
arising out of contempt of court?

HELD

Supreme Court has been vested with all the powers of a Court of Record under Art. 129 of the
Constitution. A court of record is a court, the records of which are admitted to be of evidentiary

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 mentioned in Clauses (a) to (d) applies in those cases only which are specified in those
clauses. In our view, there is ample power under the first part of the section for an
Additional Sessions Judge, to whom a matter under the Legal Practitioners Act has been
transferred for disposal, to make a report direct to the High Court without any further
intervention on the part of either the District Judge or the Sessions Judge.
 The last point raised was that the case of misconduct should have been decided in a
criminal court and this was refused on the grounds that not every misconduct would fall
under the mischief of the penal code.
 HELD- Advocate suspended for 6 months.

N.B Mirzan vs. The Disciplinary Council of Bar

Council of Maharashtra & Ors
Citation: AIR 1972 SC 46, Bench: S Sikri, D Palekar, A Ray

Relevant provisions: Advocates Act, S. 35 (Professional misconduct), S. 39 (Appeal to SC).

Facts: The appellant, N.B Mirzan (‘Advocate”) was an Advocate on the rolls of Bar Council of
Maharashtra. Respondent No. 2 (“Respondent”) – was a previous client of the appellant in the
case of an obstructionist notice served to him. The Advocate collected money from Respondent
on various occasions – Rs. 190 for court fee stamps, then Rs. 975 on representation that the
amount was required for deposit by way of rent and then again Rs. 250 on representation that the
amount was necessary for payment to a judge for getting the rent bill transferred in the name of
Respondent. The obstructionist notice was discharged in favour of the Respondent. Thereafter
the landlord filed another suit against Respondent and his brother for ejectment and mesne
profits. He gave a written statement admitting that no rent had been paid by Respondent. The
Court directed to deposit such sum. Since some money was already deposited to the Advocate,
the Respondent was under the impression that the Advocate will make the payment. He was
surprised when the Advocate made a demand for the rent again. This started the current state of
events. The Respondent understood that the appellant misappropriated the money and made a
compliant in the State Bar Council against the Advocate. Later, there was an attempt for a
settlement between them with a condition that the Advocate will pay the Respondent Rs. 1000 in
instalments of Rs 150 every month. The Advocate did pay the first instalment but later denied the
existence of any such settlement when the Disciplinary Proceedings started.

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Issue: The respondent made several allegations of professional misconduct.

The State Bar Council Disciplinary Committee, after detailed inquiry came in to conclusion that
professional misconduct had been established on three counts including moral turpitude. The
committee directed the appellant should be suspended permanently and should not be allowed to
appear in any court in the country.

An appeal was filed on this order to the Bar Council of India. The appeal was heard by the
Disciplinary committee of BCI. The BCI Disciplinary Committee confirmed the findings of the
State DC, but reduced the punishment for a period of 5 years suspension and to pay the
Respondent, a sum of Rs. 850 in 2 months. Further, if the amount was not paid, the punishment
of the State DC will stand.

An appeal to the SC was made.

Held: SC approved the findings of both the Disciplinary Committees. The findings of the Bar
Council of India Disciplinary Committee upheld.

New India Assurance Co. Ltd vs. A.K. Saxena

Bench: S.N. VARIAVA & DR. AR. LAKSHMANAN

Facts

Respondent was an advocate on panel of the appellants. As such a number of matters used to be
assigned to him It appears that some dispute arose between the appellants and the respondent as a
result of which the respondent was asked to return all papers. The respondent was willing to
return the papers provided that all his fees were paid.

When appeal was on the Board of the High Court, the respondent moved an application before
the High Court saying that he has been asked to return the files and therefore he may be
discharged on payment of his full fees.

Held

72
must uphold the dignity and decorum of the Court and must not do anything to bring the Court
itself into disrepute. ‘

‘The appellant before us grossly overstepped the limits of propriety when he made imputations
of partiality and unfairness against the Munsif in open Court. In suggesting that the Munsif
followed no principle in his orders, the appellant was adding insult to injury, because the Munsif
had merely upheld an order of his predecessor on the preliminary point of jurisdiction and Court
fees, which order had been upheld by the High Court in revision. Scandalising the Court in such
manner is really polluting the very fount of justice; such conduct as the appellant indulged in was
not a matter between an individual member of the Bar and a member of the judicial service: it
brought into disrepute the whole administration of justice.’

Mahabir Prasad Singh vs.Jacks Aviation Pvt. Ltd

In the case of Mahabir Prasad Singh vs. Jacks Aviation Pvt.Ltd , an application was made to the
trial Court to suomoto transfer the case to some other Court as the Bar Association had passed a
resolution to boycott that Court. Thus the lawyers could not appear before that Court. The trial
Court rightly rejected the application. In a revision petition the High Court stayed the
proceedings before the trial Court. It was later held that the High Court had committed grave
error in entertaining the revision petition and passing an Order of stay.
Every court is to bound to proceed with the judicial business during court hours, and the court is
not obliged to adjourn a case because of strike. The court cannot shirk its obligation to hear cases
on the ground that the advocates are on strike. A strike infringes the litigant’s fundamental right
for speedy trial and the court cannot remain silent on such violation of the fundamental right.
No lawyer has right to obstruct or prevent another lawyer from discharging his professional duty
of appearing in court. If anyone does, then it is a criminal offence and commits contempt of court
and he is liable to be proceeded against on all these courts.

The Bar Council of Maharashtra v M.V. Dabholkar &

Ors (AIR 1976 SC 242)
A.C. Gupta, R.S. Sarkaria, S. Murtaza Fazal Ali and V.R. Krishna Iyer, JJ.

66
 \\ Issue: Professional Misconduct- Brief Snatching from Clients //

Facts:

Advocates in criminal courts of Bombay used to lie in wait and accost potential litigants. Bar
Council of Maharashtra heard complaints against 16 advocates and referred same to disciplinary
committee. Common judgment was passed by the committee that this amounted to conduct that
lowers the reputation of the Bar and the advocates were suspended for 3 years. Appeal to
National Disciplinary Committee reversed the order. Maharashtra Bar appealed to SC.

Issue:

Whether the act of snatching briefs amounted to misconduct under Rule 36 of the BCI Rules?

Held:

Rule 36 of BCI Rules states that an advocate shall not solicit work. To attract the section, 3
conditions are to be proved-

 Soliciting work,
 From a particular person and
 With respect to a case.

In the present case, insufficient evidence led to no action under Rule 36. Witnesses were not sure
if they actually saw brief snatching. The court indicated that misconduct is “not restricted to
technical interpretations of Rules of conduct” and went on to show that brief snatching amounted
to misconduct in a broad sense of the term though it did not fall within Rule 36.

It has been universally understood that wherever there is an organized bar assisting in
administering justice, that an attorney, solicitor, barrister or advocate will be suspended or
disbarred for soliciting legal business (Similar provision in Canon 27 of ABA Rules). The
'snatching' species of solicitation are more revolting than 'ambulance chasing', advertising and
the like.

The high moral tone and the considerable public service the bar is associated with has earned for
it a monopoly to practice law and an autonomy to regulate own procedure. This heavy public

67
trust should not be forfeited by legalizing or licensing fights. Rule 36 is not the only nidus of
professional ethics.4

The appellate disciplinary tribunal was wholly wrong in applying Rule 36 which was
promulgated only in 1965 while the alleged misconduct took place earlier. Professional ethics
were born with the organized bar, even as moral norms arose with civilized society. Snatching
briefs by standing at the door of the court house and in-fighting for this purpose is too
dishonorable, disgraceful and unbecoming to be approved even for other professions. The canons
of ethics and propriety for the legal profession totally taboo conduct by way of soliciting,
advertising, scrambling and other obnoxious practices, subtle or clumsy, for betterment of legal
business.

The Court also observed that the State tribunal erred in procedure. The consolidation of 16 cases
and trying them all jointly although the charges were different episodes, were obviously violative
of fair trial. The Court expressed hope that disciplinary proceedings would get more attention
from the Bar Council.

Judgment:
Appeal heard on a case by case basis. Based on evidence and admissions of guilt, exonerated
some advocates and reduced the punishment for the rest. The Court gave the judgment, hoping
that that standards and sanctions befitting the national Bar will be maintained in such dignified
and deterrent a manner that public confidence in this arm of the justice-system is neither shaken
nor shocked.

Mrs. Roma Banerjee vsUshapati Banerjee, Muktear,

on 29 January, 1954
 2 judge bench
 Mukhtear Ushapati Banerjee, an advocate was hired by Roma Banerjee for prosecution
against two people for cheating. The case ended in conviction of the accused, at which

4 Nidus = A place or environment that favors the development of a thing

68
An advocate is an officer of the court and enjoys a special status in the society. After analysing
several precedents on this subject, it was concluded that the advocates in this case were not
justified in calling for a strike and boycott. Moreover, the Court observed that the advocate in
this case in arming himself with a licensed revolver and attending the court with the same was
acting in a manner that was regrettable and not befitting the dignity of the legal profession.

V.C. RANGADURAI v. D. GOPALAN AND OTHERS AIR

1979 SC 201; (1979) 1 SCC 308
Judges: V.R. Krishna Iyer, D. A. Desai, and A.P. Sen

No. of pages: 14

The appeal files under section 38 of the advocates act, 1961 by V C Rangadurai, an advocate
against the order of the disciplinary committee of the bar council of India upholding the order of
the disciplinary committee II of the state bar council, Tamil Nadu.

In the instant case advocate received a money suite from brief his client who is 70 year old deaf
man (Deivasenapathy) and his aged wife (Smt. Kamalammal) and the power of attorney agent of
the complainants (D. Gopalan) for the suit that the money advanced by the client under two
promissory notes for Rs.15,000/- and Rs. 5000/- were not repaid by the debtor. The client
handed over the case before the expiry of the limitation period to the advocate. They also paid
the fee as fully demanded by an advocate. The advocate failed to file the suite with in the
limitation period and even after the considerable time. In spite of this, the advocate made false
representations to the complainants that the suits had been filed and were pending, gave them
various dates as fixed in the two suits and later on falsely told them that the court had passed the
decrees for recovery on the basis of two promissory notes. On the faith of such representations,
the complainants issued a lawyer’s notice on the debtor (Smt. Maragathammal) to pay the
amount due under decrees. Actually no such had in fact been filed nor any decree passed.

On a complaint being made to the State Bar council, Tamil Nadu the appellant denied having
received the two promissory notes or any amount for court-fees or his fees. He also pleaded that
though he had drafted the plaints, he handed over the case to another advocate (K. S. Lakshmi

108
Kumaran), a junior who was the complainants choice, as he felt that since the debtor had
consulted him in another matter, he as should not be engaged by the complainants. The other
advocate pleaded that he had never met the complainants nor he had been instructed by them to
file the suits, but had in fact signed the vakalat as junior counsel, as a matter of courtesy at the
appellant’s behest. He also said that the appellant later told him that the plaint together with all
the documents had been returned to the complainants as per a receipt. The receipt was found by
the bar council to be forged by the appellant. The state bar council observed that in a case of such
grave professional misconduct the appellant deserved the punishment of disbarment but in view
of his young age, suspended him from practice for six years under section 35(4) of the act.

He failed an appeal to the bar council of India. The disciplinary committee of the Bar Council of
India upheld the decision, however reduced the period of suspension of the appellant from
practice to one year.

Further failed an appeal in the Supreme Court under section 38 of the Advocates Act, 1961, the
appellant contended that the finding of professional misconduct was nit based on legal evidence
but proceeded on mere conjectures and that the finding could not be sustained as there were
discrepancies in the evidence. The apex court dismissed the appeal with a modification in the
punishment that the appellant will do only free legal aid for one year under the State Legal aid
Board and produces a certificate in that behalf from the board and shall not accept any private
engagement during this period. And also pay Rs.2, 500 to the victim of the misconduct.

The Court also has stated and outlined the duties and responsibilities of a counsel. In paragraph
30 of the said judgment this Court has held that counsel’s paramount duty is to the client and
accordingly where he forms an opinion that a conflict of interest exists, his duty is to advise the
client that he should engage some other lawyer. It was further held that it is unprofessional to
represent conflicting interests, except by express consent given by all concerned after a full
disclosure of the facts. The Court further went on to hold that 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 and that it is purely a personal
relationship, involving the highest personal trust and confidence which cannot be delegated
without consent. This Court also held that when a lawyer is entrusted with a brief, he is expected

109
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.

Sections

Section 35 Punishment of advocates for misconduct.—

(1) 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. 1[(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.]

(2) The disciplinary committee of a State Bar Council 2[***] 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.

(3) 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.

(4) 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.

(5) 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

110
or through any advocate appearing on his behalf. 3[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.]

Section 37 Appeal to the Bar Council of India.—

(1) 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.

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

Section 38 Appeal to the Supreme Court.

Any person aggrieved by an order made by the disciplinary committee of the Bar Council of
India under section 36 or section 37 1[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 1[(including an order varying the punishment awarded by the disciplinary committee
of the Bar Council of India)] thereon as it deems fit: 1[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.]

V.P.Kumaraveluv Bar Council of India &Ors.

(6 Page Case)

(1997) 4 SCC 266

111
Difference between barristers and other classes of lawyers - examined in context of such
agreements; observed – judgments referred deal with advocates and even where these advocates
were barristers the matter touched them as advocates of an Indian High Court and not because of
their special status as barristers. Rules laid down in decisions govern all advocates whether
barristers or otherwise.

SC quoting Bombay High Court termed it – highly reprehensible, whether his practice be before
the HC or in mofussil, he will by so doing offend the rules of his profession and so render
himself liable to disciplinary jurisdiction of the court.

‘G’ argued – Section 3 of Legal Practitioners (Fees), 1926 changed it – now every legal
practitioner can settle terms of engagement & fees by agreement with client – this entitles him to
enter into any agreement generally permitted by law – legal practitioners governed by law of
contract not by rules imported from other countries. Court did not agree – because LP(F)A does
not deal with professional misconduct – dealt by Bar Councils Act – no modification in
disciplinary jurisdiction of HC

‘G’ relied on practice in American states where agreement by attorney to purchase part of subject
matter of litigation was upheld - relied on to show contract of this kind cannot be dismissed as
reprehensible or morally wrong. For historical reasons court decided not to look into that! The
1937 ABA rule prohibits such practice.

No reason to import the American practice which is frowned upon even there. In a country like
ours where ignorance and illiteracy are the rule – maintaining high standards is essential.
Conduct of G – amounts to professional misconduct. In view of personal attacks on CJ in his writ
petition questioning his goof faith and attributing malice – not to be dealt with lightly –
suspended for 6 months.

CHANDRA SHEKHAR SONI (Appellants)v. BAR

COUNCIL OF RAJASTAN(Respondents)
(1983) 4 SCC 255 (5 page)

Coram: 3 judges – A P Sen, E S Venkataramiah& R B Misra

20
Facts:

1. This appeal before the Supreme Court is against an order of the Disciplinary Committee
of the Bar Council of India. The Bar Council of India had upheld the order of the
Disciplinary Committee of the State Bar Council of Rajastan, by which the appellant had
been held guilty of professional misconduct and suspended from practice for a period of
three years under Section 35 of the Advocates Act, 1961.

2. There were two charges against the appellant.

i) The first charge was that he changed sides in a criminal case. The State Bar Council
gave the appellant the benefit of the doubt and held that though his conduct was
unprofessional, it was not tantamount to professional misconduct. The Bar Council of
India disagreed with the State Bar Council. The Supreme Court also concurred with
the Bar Council of India.
Observed: 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 facts or at least with permission from the learned magistrate. Counsel’s
paramount duty is to the client and where he finds there is conflict of interests, he
should refrain from any conduct harmful to his client.

ii) The second charge was that the appellant had taken money from a client in another
case for the purpose of giving bribe. The Complainant Bhaniya and his wife Galki
were assaulted and sustained head injuries. The Radiologist, after examining their X-
rays, referred the matter to a specialist. The appellant approached Bhaniyaon the
representation that he would get them a favourable report from the
radiologist/specialist if they engaged him as counsel and paid a certain sum of money
(300 Rs.) to the doctor. The State Bar Council found the appellant guilty of
reprehensible conduct. The Bar Council of India upheld this disbelieving all versions
of the appellants defence. The Supreme Court concurred with the finding.
Observed: An advocate shall use his best efforts to restrain and prevent his client
from resorting to unfair practices. Advocate shall at all times conduct himself in a

21
 manner befitting his status as an officer of the Court, privileged member of the
community and gentleman.

3. Other observations - Regarding quantum of punishment: The State Bar Council

directed that the appellant be suspended from practice for a period of three years as he had
brought, by his conduct, disrepute to the legal profession. Bar Council of India upheld the
sentence. The Supreme Court, however, felt that the sentence is rather severe considering
the appellant is merely a junior member of the bar. While strongly condemning the
appellants conduct, the Supreme Court reduced the period of suspension from three to one
year.

4. Held: Guilty of Professional Misconduct

_______________________________________________

D.S.Dalal v. State Bank of India & Ors., 1993 Supp

(3) SCC 557

FACTS:

D S Dalal, a practising advocate in Delhi, had his name removed from the rolls of advocates of
the Bar Council of Delhi and the sanad1 granted to him had been withdrawn. An Appeal was
filed under s.30, Advocates Act against the Bar Council of India.

SBI lodged a complaint before the Delhi Bar Council alleging that the appellant along with two
others was practising under the name and style of “M/s. Singh and Company”, a firm of
advocates and solicitors. These advocates were engaged by the SBI to file a recovery suit against
M/s Delhi Flooring (Pvt.) Ltd for the recovery of a certain sum. Mr. D.S. Dalal was one of the
advocates, also a partner at the firm, who were conducting the cases for and on behalf of the
Firm.

It is the case of the complainant that in 1975 the files relating to this recovery suit was handed
over to the firm and the firm had consequently submitted a bill for filing the recovery suit,

1 Sanad means a license to practice law.

22
loathsome, execrable, vicious or repulsive he may be regarded by society, has a right to be
defended in a court of law and correspondingly it is the duty of the lawyer to defend him.

The court also emphasized Article 22(1) of the Constitution which says that no person who is
arrested shall be detained in custody without being informed of the grounds of his arrest nor
shall be denied the right to consult, and to be defended by a legal practitioner of his choice.

Reference was also made to Chapter II of the Rules framed by the Bar Council of India about
‘Standards of Professional Conduct and Etiquette’. Rule 11 says that an advocate is bound to
accept any brief in the courts or tribunals or before any other authority in or before which he
proposes to practice at a fee consistent with his standing at the Bar and the nature of the case.
Special circumstances may justify his refusal to accept a particular brief.

Judgment

The Supreme Court declared that all such resolutions of Bar Associations in India are null and
void and directed the registry to circulate copies of the judgment/order to all High Court Bar
Associations and State Bar Councils in India and the High Court Bar Associations in turn were
requested to circulate the judgment/order to all the District Bar Associations in their States/Union
Territories.

AN ADVOCATE v. BAR COUNCIL OF INDIA

AIR 1989 SC 245: 2 Judge Bench (18 page case)

FACTS

A complaint was filed by the respondent before the State Bar Council alleging that the appellant-
advocate had withdrawn a suit against one ‘A’ for recovery of a sum of money without the
written instruction of his client. However the version of the appellant was that the suit had been
instituted in a particular set of circumstances, that the complainant had been introduced to the
appellant for purposes of the institution of the suit by an old client of his ‘G’, that the appellant
was already handling a case on behalf of ‘G’ against ‘A’ and it was at the instance and inspiration
of ‘G’ that the suit had been instituted by the complainant, but actually he was the nominee of
‘G’ and the complainant himself had no real claim on his own and that the suit was withdrawn

4
under the oral instructions of the complainant in the presence of ‘G’ and ‘A’. The disciplinary
committee of the State Bar Council after calling for the comments of the appellant in the context
of the complaint, straightaway proceeded to record the evidence of the parties. No charge was
framed specifying the nature and content of the professional misconduct attributed to the
appellant. Nor were any issues framed or points for determination formulated. As the case could
not be concluded within the prescribed time limit the matter came to be transferred to the Bar
Council of India which heard arguments and rendered the impugned order suspending the
appellant from practising his profession for 3 years.

ISSUES

The case came before the Supreme Court under Section 38 of the Advocates Act

The questions which arose for determination were:-

1) Whether a charge apprising him specifically of the precise nature and character of the
professional misconduct ascribed to him needs to be framed?

(2) Whether in the absence of an allegation or finding of dishonesty or mens rea a finding of guilt
and a punishment of this nature can be inflicted on him?

(3) Whether the allegations and the finding of guilt require to be proved beyond reasonable
doubt?

(4) Whether the doctrine of benefit of doubt applies?

(5) Whether an Advocate acting bona fide and in good faith on the basis of oral instructions
given by someone purporting to act on behalf of his client, would be guilty of professional
misconduct or of an unwise or imprudent act, or negligence simpliciter, or culpable negligence
punishable as professional misconduct?

Allowing the appeal and setting aside the order of the Bar council of India Supreme Court
held that:-

5
The proceedings under Section 35 of the Advocates Act are quasi-criminal in character inasmuch
as a Member of the profession can be visited with penal consequences which affect his right to
practice the profession as also his honour;

In order to enable the concerned Advocate to defend himself properly, an appropriate specific
charge was required to be framed on the paramount consideration of fair play even though the
Act does not outline the procedure and the Rules do not prescribe the framing of a charge.

That the Disciplinary Committee empowered to conduct the enquiry and to inflict the
punishment on behalf of the body, in forming an opinion must be guided by the doctrine of
benefit of doubt and is under an obligation to record a finding of guilt only upon being satisfied
beyond reasonable doubt. It would be impermissible to reach a conclusion on the basis of
preponderance of evidence or on the basis of surmise, conjuncture or suspicion. It will also be
essential to consider the dimension regarding mensrea;

In the event of a charge of negligence being levelled against an Advocate, the question will have
to be decided whether negligence simpliciter would constitute misconduct. It would also have to
be considered whether the standard expected from an Advocate would have to answer the test of
a reasonably equipped prudent practitioner carrying reasonable workload. A line will have to be
drawn between tolerable negligence and culpable negligence in the sense of negligence which
can be treated as professional misconduct exposing a Member of the profession to punishment in
the course of disciplinary proceedings. In forming the opinion on this question the standards of
professional conduct and etiquette spelt out in Chapter II of Part VI of the Rules governing
Advocates, framed under Section 60(3) and Section 49(1) (g) of the Act, which forms a part of
the Bar Council of India Rules, may be consulted. As indicated in the preamble of the Rules, an
Advocate shall, at all times compose himself in a manner befitting his status as an Officer of the
Court, a privileged member of the community and a gentleman bearing in mind what may be
lawful and moral for one who is not a member of the bar may still be improper for an Advocate
and that his conduct is required to conform to the rules relating to the duty to the Court, the duty
to the client, to the opponent, and the duty to the colleagues, not only in letter but also in spirit.

It is in the light of these principles the Disciplinary Committee would be required to approach the
question as regards the guilt or otherwise of an Advocate in the context of professional

6
misconduct levelled against him. In doing so apart from conforming to such procedure as may
have been outlined in the Act or the Rules, the Disciplinary Authority would be expected to
exercise the power with full consciousness and awareness of the paramount consideration
regarding principles of natural justice and fair play.

In the present case the appellant has not been afforded reasonable and fair opportunity of
showing cause inasmuch as the appellant was not apprised of the exact content of the
professional misconduct attributed to him and was not made aware of the precise charge he was
required to rebut. The conclusion reached by the Disciplinary Committee in the impugned order
further shows that in recording the finding of facts on the three questions, the applicability of the
doctrine of benefit of doubt and need for establishing the facts beyond reasonable doubt were not
realised. Nor did the Disciplinary Committee consider the question as to whether the facts
established that the appellant was acting with bona fides or with mala fides, whether the
appellant was acting with any oblique or dishonest motive, whether there was any mens rea,
whether the facts constituted negligence and if so whether it constituted culpable negligence. Nor
has the Disciplinary Committee considered the question as regards the quantum of punishment in
the light of the aforesaid considerations and the exact nature of the professional misconduct
established against the appellant.

Since all these aspects have not been examined at the level of the Bar Council, and since the
matter raises a question of principle of considerable importance relating to the ethics of the
profession which the law has entrusted to the Bar Council of India, it would not be proper for the
Supreme Court to render an opinion on this matter without the benefit of the opinion of the Bar
Council of India which will accord close consideration to this matter in the light of the
perspective unfolded in this judgment both on law and on facts. Hence it was considered
appropriate to remit the matter back to the Disciplinary Committee.

Bar Council of India v. High Court of Kerala

(15 PAGE CASE)

Decision: Supreme Court, April 27, 2004

Bench:3 judges (Chief Justice V.N. Khare, Justice Brijesh Kumar & Justice Sinha)

7
and made payable to heirs of complainants because by that time complainants had already been
put to death in execution of sentence imposed on them. A lien was created in property of
advocate to recovery of cost.

The advocate filed an appeal to Supreme Court against this decision. Dismissing the appeal SC
held: the appellant took advantage of the situation and obtained power of attorney on
misrepresentation & sold the property of complainants. He has committed a grave professional
misconduct. The court further said the relationship between an advocate and his client is of trust
and therefore sacred. Preservation of mutual trust between advocate and client is a must
otherwise prevalent judicial system in the country would collapse and fail.

Vinay Chandra Misra, In Re [(1995) 2 SCC 584]

JUDGES: Kuldip Singh, J.S. Verma, P.B. Sawant, Jj.

Judgment delivered by Justice Sawant.

FACTS OF THE CASE:

A letter was addressed to acting Chief Justice by Justice S.K. Keshote of Allahabad HC
complaining of misbehavior by one Shri. V.C. Mishra who was appearing in a case before him
(M/s Bansal Forgings Ltd. v. U.P. Financial Corpn.).

Brief facts of that bullshit case: [all part of the letter]

M/s Bansal [B] took a loan from U.P. Fin. Corp. [UPFC] and defaulted in payment of
installment. UPFC went against B. B filed civil suit against UPFC and also applied for grant of
temporary injunction. UPFC’s counsel suo motu took this up with trial. Trial court passed order-
UPFC to not take seize B’s factory and B has to pay installment amount and furnish security for
disputed amt. by 31/1/94.

Appeal has been filed against this order contending that court had no jurisdiction. When the
judge asked V.C Misra [VCM] under which provision this order was passed, he went bat shit
crazy and screamed at the judge saying he had no jurisdiction to ask that question before

117
threatening to get him impeached or transferred because of his influence and contacts. *Judge
claims:*“In sum and substance it is a matter where except to abuse me of mother and sister, he
insulted me like anything.” What VCM meant to convey was that admission and not arguments
are heard at this stage. And the judge goes on to say that since this judge heard cases on the basis
of merit and not admissions alone, he may have offended the lawyer. (also note that VCM was a
senior advocate and questions were raised as to the example he’d set amongst the juniors).

[letter over]

Acting CJ forwarded letter to CJI who constituted a bench to hear the matter on 15/4/94, where
court took the view of it to be criminal contempt of court by VCM and issued notice to him to
show cause why contempt proceedings should not be initiated against him. VCM replied by an
affidavit and also an application to discharge the show cause. Alternatively, hold an inquiry into
this incident. He claims to deeply regret the remarks about the comments about all the contacts
and connections he had, but also that the facts and circumstances are such which made him make
such statements and that the judge was committing contempt of his own court. He then stated his
version of that same bullshit case:

B took a loan from UPFC. A controversy arose between them and B had to file a civil suit against
UPFC so there is no judicial sale of their assets. Injunction was granted and B had to furnish
security. B, being aggrieved by this order (which would require them t take out a mortgage),
filed a complaint against the portion requiring them to furnish security where VCM argued for B.
He goes on to state that the applicant (the judge in question) took charge of court proceedings not
giving the senior judge opportunity to intervene. He then enquired under what law the order was
passed to which VCM said O. 39 CPC. He then decided to set aside the entire order, and not just
the portion he had appealed against, because he held the view that the Lower Court was not
competent to pass such an order. To which VCM said that being the appellant, he had dominion
over the case and it could not be made just because he appealed to HC. To this, the judge lost his
temper and said he’d set aside the order in toto, to which he lost his temper since his
“professional and institutional sensitivity was deeply wounded” and he said it isn’t the practice if
the court to dismiss cases without hearing or upset judgments (or their part) not appealed against.
He admits to the exchange getting heated, wherein he mentioned transferring the judge but not
impeachment (in between a few witty remarks). He has gone on to say that the judge used

118
threatening remarks (about goondaism), lowering the authority of the court. He also denied the
applicant’s claim of his reply about lack of jurisdiction to ask such a question, abusing him and
said that such conduct would be foolish.

He further contended that had he committed contempt, the senior judge or the applicant judge
himself would have initiated proceedings under Art. 129 of the Constitution, instead of going to
the acting CJI. He goes on to submit that “under the compulsion of” his “institutional and
professional conscience” and upholding the standards as expected by the bench and bar, to order
a thorough investigation into whether contempt was committed by him under Art 215 of the
constitution or by the judge under sec 16 of contempt of courts act.

He also made a complaint for not being given a copy of the letter given to the acting CJI and
can’t gauge the rationale as to why the applicant did not initiate proceedings against him
immediately, instead of writing a letter. The formal enquiry was not for vindication but to ensure
that punishment is not meted out to outspoken lawyers, thus, keeping it a healthy democratic
judicial system. He also stated that he is moving an independent petition against the judge under
sec 16 of the contempt of courts act in the interest of fair play and justice.

Court gave him 4 weeks time to file an additional affidavit giving more facts and details, which
he did. The court heard VCM and his legal counsel, perused the counter and additional affidavit
and decided to initiate proceedings of criminal contempt against VCM, dismissing his notice for
discharge.

Justice Keshote forwarded his comments on the affidavit denying all allegations against him
following which MCV filed his unconditional written apology (where mainly, he boasts about
the posts held by him and how lawyers need to learn to be good sporting losers. :/) following
which he withdrew all his applications, counter affidavits and prayers made to the court.

The court stated that it may not by inclined to accept the apology and adjourned the case to a
later date so the counsels could argue the case on all points.

ISSUES RAISED:

1. According to him, a court of record can only take cognizance for contempt to itself, (as
worded in arts. 129 and 215 of the Cons.). hence, this action was not maintainable in the

119
 Supreme court, as the alleged contempt was against the Allahabad High Court (also a
court of record) which had vested in it power to punish for its contempt.
2. It was contended that it will be necessary to hold an inquiry into allegations made by the
judge by summoning him for examination by VCM to verify his version of the incident
as against that given by VCM.
3. Whether VCM is in fact guilty of contempt of court.

HELD:

1. Article 129 vests in this court the power to punish for contempt of itself in the courts
capacity as the highest court of record whose duty and responsibility it is to correct and
protect lower courts i.e. superintendence over lower courts. As held in [Delhi Judicial
Services Assn. v. State of Gujarat (1991) 4 SCC 406], the wordings of Article 129 and
215 are inclusive (including the power to punish for contempt of itself), which has been
interpreted by the courts to give it a wide scope. High Courts have inherent power under
Art. 215 to punish for a lower court’s contempt (even in the absence of express provision
in the Act). The same should apply to the SC. Thus, it was held that SC had the power to
initiate and entertain proceedings of contempt in subordinate courts.
2. There is nothing unusual in the course taken be the learned judge by writing a letter
instead of initiating proceedings because he probably didn’t want to be a prosecutor,
witness and judge in the same matter. The procedure adopted was summary and VCM’s
interests were adequately safeguarded by issuing notice, allowing him to file a counter
and supplementary affidavit and produce other material. But giving him the right to
question the judge before whom contempt was committed destroys the jurisdiction of the
court to adopt proceeding for this conduct. Section 14(3) of the Contempt of Courts Act,
1971 states that it is not necessary for the judge or judges, in the presence of whom the
offence is committed, to appear as witness. His statement before CJI is enough evidence.
3. “Contempt of court” is defined as an act or omission calculated to interfere with the
administration of justice. From the facts, it is evident that the allegation against VCM, if
true, amounts to criminal contempt [ “criminal contempt” means the publication (whether
by words, spoken or written, or by signs, or by visible representation, or otherwise) of
any matter or the doing of any other act whatsoever which—
(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any
court; or
120
 (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial
proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the
administration of justice in any other manner;]

Instead of filing evidence to back his story up, the advocate tendered a written apology.
After hearing both sides, it is evident that the lawyer did try to insult the judge (in his
manner, tone, demeanor and even in his version of the case by saying that the judge took
charge of the proceedings), he admits to having lost his temper. Such conduct brings
disrespect and disrepute to the entire judicial system and shakes the confidence of the
people in the judiciary to deliver free and fair justice. If the judiciary is to perform its
duty effectively, the dignity and authority of courts has to be respected and protected.
Satisfied that VCM did indulge in the said acts, he had to undergo simple imprisonment
for a period of 6 weeks and was suspended from practicing for a period of 3 years.

Srimathi And Others vs Union Of India And Others

It was held that there is no provision to enable the bar council to deal with the dispute between the advocate and
the client to compensate him for the damages and refund the money.

Issue: to reconsider constitutionality of section 3 of Consumer Protection ACT; so as to excuse the service
provided by advocates from the ambit of the act

Facts:

 The petitioner in these cases are practising advocates. Claims have been made against them by
certain persons who are impleaded as respodents in the respective cases, before the Consumer
Disputes Redressal Forum. In some cases it is before the District Forum and in some cases it is
before the State Forum.
 The petitioner take the contention that advocates are governed only by advocates act, and they
are not answerable for claims under consumer protection act
 They take the contention that no provision under the consumer protection act has the scope to
include the services provided by an advocate.
 Also the definition of “consumer” would not include a client who has availed services from an
advocate.
 According to the petitioners, an advocate in a particular case, can be made to defend a proceeding
1. under the Advocates Act before the Bar Council,
2. under the Criminal Law before the Criminal Courts,
3. before the Civil Court under the Civil Law, and

121
 the CW 7 was unsatisfactory; either CW 7 was an impersonator or being the real Kagga
he was lying – SC did not interfere with the HC’s appreciation of this fact.
 Punishment of 5 years too harsh
Held – punishment given too lenient in view of misappropriation of client’s money and
bringing false evidence - refused to change the punishment.

SUPREME COURT BAR ASSOCIATION v. UNION OF

INDIA
(1998) 4 SCC 409

CORAM:
HON'BLE JUSTICE S. C. AGRAWAL, HON'BLE JUSTICE G. N. RAY, HON'BLE JUSTICE
DR. A. S. ANAND,
HON'BLE JUSTICE S. P. BHARUCHA& HON'BLE JUSTICE S. R. BABU

FACTS

In Supreme Court bar Association case, the Supreme Court revisited its earlier decision in Vinay
Chandra Mishra, Re. In Vinay Chandra Mishra case, the Supreme Court punished a lawyer for
contempt. While meting out the punishment, apart from sentencing for imprisonment, the lawyer
was suspended from practice for a period of 3 years.

Aggrieved by the decision of the Court to suspend the lawyer for 3 years under contempt
jurisdiction, the Supreme Court Bar Association, through its Honorary Secretary, approached the
Supreme Court under Art.32 of the constitution.

ISSUES

Whether the Supreme Court has powers to enquire into or debar / suspend a lawyer for
professional misconduct, which is an exclusive jurisdiction of Disciplinary Committee of BCI,
arising out of contempt of court?

HELD

Supreme Court has been vested with all the powers of a Court of Record under Art. 129 of the
Constitution. A court of record is a court, the records of which are admitted to be of evidentiary

101
value and are not to be questioned when produced before any court. The power of the courts of
records to punish for their contempt is part of their inherent jurisdiction and is essential for the
proper administration of justice. The powers of the Supreme Court to punish for contempt is also
governed by Art.142 of the Constitution. Art.142(2) allows the Parliament to create a statute for
regulating the contempt powers of the apex court. However, no such law has been enacted by the
Parliament. The Contempt of Courts Act does not have provisions which deal with the Supreme
Court’s powers to enquire and inflict punishment for contempt.

Jurisdiction of the Supreme Court to punish an advocate for contempt is different from the
jurisdiction of the Supreme Court to punish an advocate for professional misconduct. In Vinay
Chandra Mishra case, the Supreme Court had held that since, the apex court had appellate
jurisdiction under S.38 of the Advocates Act over the punishment imposed by the Disciplinary
Committee, it also had powers to suspend or debar a lawyer from practicing under contempt
jurisdiction. The Court held that Punishment for professional misconduct is the exclusive
jurisdiction of the State bar Councils or Bar Council of India. Supreme Court while punishing an
advocate for contempt cannot punish him by suspending his license for practice or removing his
name from the rolls of the State Bar. Such punishments cannot be imposed by the Supreme Court
even while exercising its appellate jurisdiction under S.38 of the Advocates Act,1961. When the
Court finds an advocate for contempt of court, the Bar Councils should act in aid of the Court
and initiate proceedings for professional misconduct as per the relevant provisions of the
Advocates Act and Rules. To that extent, the Court overruled the decision in Vinay Chandra
Mishra Case.

This decision has been approved in Bar Council of India v. High Court of Kerala.

TC Mathai and Anr V. District, Sessions Judge

Thiruvananthapuram ,Kerala
Division bench- K T THOMAS & M B SHAH

Facts-The appellant claims to be power of attorney holder of the respondants , a couple in

Kuwait-asked permission at Session Court Tvm to represent them in criminal revision petition
where they are arrayed as respondants- court denied as such request didn’t emanate from
respondant couple-moved to HC Kerala under A-226 for issuance of direction to the session

102
Issue: Whether a mere libel or defamation of a Judge amounts to Contempt of Court?

Held: The test when deciding each case would be whether the impugned publication is a mere
defamatory attack on the Judge or whether it is calculated to interfere with due course of justice
by the Court. Only in the latter case it will be punishable as contempt. It is unfortunate that A
made allegations about social intimacy of judicial officers which may or may not be defaming
the Judges but those allegations did not amount to contempt of court. HC Conviction quashed.

Ex. Captain Harish Uppal Vs. Union of India (UOI)

and Anr.
[ (2003) 2 SCC 45 ]

Coram : G.B. Patnaik, C.J., Doraiswamy Raju, S.N. Variava, D.M. Dharmadhikari and M.B.
Shah, JJ.

Background : In light of the growing phenomenon of lawyers going on strike at the slightest
provocation, writ petitions were filed that raised the question as to whether lawyers have a right
to strike and/or give a call for boycotts of Court/s. Also, An interim Order was passed by the
Supreme Court in Writ Petition (C) No. 821 of 1990 which directed lawyers to exercise self
restraint in situations where they were called on to participate in strikes and boycotts. In spite of
the directions, the Bar Council of India had not incorporated them in the Bar Council of India
(Conduct & Disciplinary) Rules. The petitioners sought a declaration that such strikes and/or
calls for boycott are illegal.

Issue : Whether lawyers have a right to strike and/or give a call for boycotts of Court/s.

Held :

1. Strikes by Advocates are Illegal and unjustified. They may only protest in a peaceful
manner outside Court premises. The High Courts were directed to frame rules under
Section 34 of Advocates Act to regulate conduct of lawyers in Courts.
2. There is no fundamental right, either under Article 19 or under Article 21 of the
Constitution, which permits or authorises a lawyer to abstain from appearing in Court in a

42
 case in which he holds the vakalat for a party in that case. The protest, if any as required,
can only be by giving press statements, T.V. interviews, carrying out-of-Court premises
banners and/or placards, wearing black or white or any colour arm bands, peaceful
protest marches outside and away from Court premises ; going on dharnas or relay fasts,
etc.
3. The lawyers holding vakalats on behalf of their clients cannot refuse to attend Courts in
pursuance to a call for strike or boycott. All lawyers must boldly refuse to abide by any
call for strike or boycott. No lawyer can be visited with any adverse consequences by the
Bar Association or the Bar Council and no threat or coercion of any nature including that
of expulsion can be held out. No Bar Council or Bar Association can permit calling of a
meeting for purposes of considering a call for strike or boycott and requisition, if any, for
such meeting must be ignored. Only in the rarest of rare cases where the dignity, integrity
and independence of the Bar and/or the Bench are at stake, Courts may ignore (turn a
blind eye) to a protest abstention from work for not more than one day. However, it will
be for the Court to decide whether or not the issue involves dignity or integrity or
independence of the Bar and/or the Bench. Therefore, in such cases, the President of the
Bar must first consult the Chief Justice or the District Judge before advocates decide to
absent themselves from Court. The decision of the Chief Justice or the District Judge
would be final and have to be abided by the bar. If a lawyer, holding a vakalat of a client,
abstains from attending Court due to a strike call, he shall be personally liable to pay
costs which shall be in addition to damages which he might have to pay his client for loss
suffered by him.
4. Grievances redressal committees at taluk level, district level, High Court level and
Supreme Court level should be established so that grievances of the advocates at all
levels could be resolved. If action is required to be taken on the grievances made by the
advocates, it should be immediately taken. If grievances are found not to be genuine, then
it should be made clear so that there may not be any further misunderstanding.
5. It was directed that all the Bar Associations in the country shall implement the resolution
dated 29th September, 2002, passed by the Bar Council of India, and under Section 34 of
the Advocates Act, 1961, the High Courts would frame necessary rules so that
appropriate action can be taken against defaulting advocate/advocates.

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 6. Advocates being Officers of the Court are a part and parcel of the judicial system and
cannot engage in strikes because strikes interfere with administration of justice. They owe
a duty to their client and cannot disrupt Court proceedings and put the interest of their
clients in jeopardy

Ratio Decidendi: For just or unjust cause strike cannot be justified, as sufferer is society-public
at large.

Harishankar Rastogi v. Girihari Sharma and Ors.,

19782 SCC 165
Bench – V.R. Krishna Iyer

Brief Facts- The petitioner appeared in person and sought permission to be represented by
another person who is not an Advocate, in place of an Advocate Amicus Curiae appointed by the
Court bringing this case into the ambit of the meaning of S.2(a) of the Advocate,Act1961

Issues and Decision- The court looked into the aspect of right to practice in a court under S30(1)
of the Advocates Act subject to reasonable restriction. Not allowing a person to be represented by
a non-advocate for any reason will be a denial of justice in a country where illiteracy still
prevails. A person who is a party to a proceeding can get himself represented by a non-advocate
in a particular instance or case. Practicing a profession means something very different from
representing some friend or relation in one case. The court stated the Article 19 does guaranty
right to freely practice any profession but the reasonable restriction in this scenario is the
Advocates act which entitles the only class of persons eligible to practice the profession of law
shall be advocates. Depending on the facts of a case Permission may be granted by the Court
taking the justice of the situation and several other factors into consideration for nonprofessional
representation. But most important consideration for the court would still be dispensation of
justice and the overview that any person with no knowledge of law may not be good enough for
a case which deals with a lot of intricate matters.

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