A.C. Gupta, J. – 1. This is an appeal under Section 38 of the Advocates Act, 1961. In a
proceeding transferred to it under Section 36B of the Act, the Bar Council of India by its
order dated 17 April, 1977 found that the appellant was guilty of professional misconduct and
suspended him from practice for a period of one year. The complaint on which the proceeding
was initiated was filed in the Gujarat Bar Council on 9 October, 1971.
- Section 35(1) of the Advocates Act, 1961 reads:
“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.”
In Bar Council of Maharashtra v. M. V. Dabholkar, [AIR 1976 SC 242] this Court having
examined the scheme and the provisions of the Advocates Act observed:
“It is apparent that a State Bar Council not only receives a complaint but is required to apply
its mind to find out whether there is any reason to believe that any advocate has been guilty of
professional or other misconduct. The Bar Council of a State acts on that reasoned belief…
“The Bar Council acts as the sentinel of professional code of conduct and is vitally interested
in the rights and privileges of the Advocates as well as the purity and dignity of the
profession.
“The function of the Bar Council in entertaining complaints against advocates is when the Bar
Council has reasonable belief that there is a prima facie case of misconduct that a disciplinary
committee is entrusted with such inquiry….” - In the case before us the Bar Council of Gujarat passed a resolution on 16 November, 1971
referring several complaints against different advocates including the one against the
appellant to the Disciplinary Committee of the Bar Council, The resolution reads:
“Resolved that the following complaints be and are hereby referred to the Disciplinary
Committee of the Bar Council.”
The names of the advocates and the complaints in which they were concerned were listed.
Nothing appears from the record of the case to suggest that before referring the complaint
against the appellant to the Disciplinary Committee, the State Bar council applied its mind to
the allegations made in the complaint and found that there was a prima facie case to go before
the Disciplinary Committee. - In Dabholkar’s case referred to above, a bench of seven Judges decided the question
whether the Bar Council of a State was a “person aggrieved” to maintain an appeal under
Section 38 of the Advocates Act, the merits of the individual cases were left to be decided by
another bench. Our attention is drawn by Counsel for Bar Council of India to the following
observation in the judgment of this Court deciding the merits of the cases:
“(2) The requirement of “reason to believe” cannot be converted into a formalized procedural
road block. It being essentially a barrier against frivolous enquiries. It is implicit in the
resolution of the Bar Council, when it says that it his considered the complaint and decided to
refer the matter to the disciplinary committee that it had reason to believe, as prescribed by
the statute.”
155 - But in the case before us the resolution does not even say that the State Bar Council bad
considered the complaint and found that there was a prima facie case. It must therefore be
held that the reference by the State Bar Council to the Disciplinary Committee was invalid
and that being so the proceedings before the Disciplinary Committee of Bar Council of
Gujarat and also before the Disciplinary Committee of the Bar Council of India on transfer
were void. In the view we take It is not necessary to consider the merit of the case. - The appeal is allowed and the order of the Disciplinary Committee of the Bar Council of
India suspending tie appellant from practice for one year is set aside. There will be no order
as to Costs.
