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M.P. THAKKAR, J. – A host of questions of seminal significance, not only for the advocate who
has been suspended from practising his profession for 3 years on the charge of having withdrawn a
suit (as settled) without the instructions from his client, but also for the members of the legal
profession in general have arisen in this appeal:
(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?
- The suit was a suit for recovery of Rs 30,098 (Suit No. 65 of 1981 on the file of Additional
City Civil Judge, Bangalore). It appears that the complainant had entrusted the brief of the appellant
which he in his turn had entrusted to his junior colleague (Respondent 2 herein) who was attached
to his office and was practising along with him at his office at the material time. At the point of time
when the suit was withdrawn, Respondent 2 was practising on his own having set up his separate
office. On the docket of the brief pertaining to the suit, the appellant made an endorsement giving
instructions to withdraw the suit as settled. A sketch was drawn on the back of the cover to enable
the person carrying the brief to the junior colleague to locate his office in order to convey the
instructions as per the endorsement made by the appellant. The allegations made by the complainant
against the appellant are embodied in paras 1 and 2 of his complaint:
(1) The petitioner submits that he entrusted a matter to Respondent 2 to file a case against
Shri A. Anantaraju for recovery of a sum of Rs 30,098 with court costs and current interest in
Case No.OS 1965 of 1981 on the file of the City Civil Judge at Bangalore. The petitioner
submits that the said suit was filed by the first respondent who was then a junior of Respondent - The petitioner submits that the matter in dispute in the suit was not settled at all and the first
respondent without the knowledge and without the instructions of the petitioner has filed a
memo stating that the matter is settled out of court and got the suit dismissed and he has also
received half of the institution court fee within 10 days since the date of the disposal of the suit.
The petitioner submits that he has not received either the suit amount or the refund of court fee
and he is not aware of the dismissal of the suit as settled out of court.
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(2) The petitioner submits that when the case was posted for filing of written statement
itself the first respondent has filed such a memo stating that the suit was settled out of court.
The petitioner submits that in fact, the respondents did not even inform the petitioner about the
dates of hearing and when the petitioner asked the dates of hearing the respondents informed
the petitioner stating that his presence is not required in the court since the case was posted for
filing of written statement and therefore, the petitioner did not attend the court on that day. The
petitioner submits that when he enquired about the further date of hearing the respondents did
not give the date and said that they would verify the next date of hearing since they have not
attended the case since the case was posted for filing written statement by the defendant. The
petitioner submits that when he himself went to the court and verified he found to his great
surprise that the suit is dismissed as settled out of court and later learnt that even the half of the
institution court fee is also taken by the first respondent within 10 days. - The version of the appellant may now be unfolded:
(1) One Gautam Chand (RW 3) has been a longstanding client of the appellant. Gautam
Chand had business dealings with the plaintiff Haradara and the defendant Anantaraju. Besides,
Anantaraju executed an agreement dated 9-8-1980 to sell his house property to Gautam Chand.
He received earnest money in the sum of Rs 35,000 from Gautam Chand. Anantaraju, however,
did not execute the sale deed within the stipulated period and during the extended period. It was
in these circumstances that Gautam Chand (RW 3) approached the appellant for legal advice.
(2) It is the common case of parties that Gautam Chand introduced the complainant
Haradara to the appellant and his colleague advocate Respondent 2.
(3) The appellant caused the issue of notice dated 1-6-1981 (Ex. R/15) on behalf of
Gautam Chand addressed to the seller Anantaraju calling upon him to execute the sale deed. On
the same date, a notice was separately issued on behalf of the complainant Haradara addressed
to Anantaraju demanding certain amounts due on the three ‘self’ bearer cheques aggregating Rs
30,098 issued by Anantaraju in course of their mutual transactions. This notice was issued by
the advocate Respondent 2 acting on behalf of the complainant Haradara.
(4) Gautam Chand (RW 3) and Haradara (PW 1) were friends. Anantaraju was their
common adversary. There was no conflict of interests as between Gautam Chand and Haradara.
Gautam Chand instructed the appellant and his colleague Respondent 2 Ashok, that he was in
possession of the said cheques issued by Anantaraju and that no amount was actually due from
Anantaraju to the complainant Haradara. Gautam Chand was desirous of steps to induce
Anantaraju to execute the sale deed in his favour.
(5) A suit being OS No. 1965 of 1981 was instituted on behalf of the complainant Haradara
claiming an amount of Rs 30,000 and odd, from the defendant Anantaraju on the basis of the
aforesaid cheques. It was instituted on 30-6-1981. An interlocutory application was moved on
behalf of Haradara by Respondent 2 as his advocate seeking the attachment before judgment of
the immovable property belonging to the defendant Anantaraju. The property was in fact the
subject of an agreement to sell between Anantaraju and Gautam Chand (RW 3). The court
initially declined to grant an order of attachment. In order to persuade the court, certain steps
were taken through the said Gautam Chand. He caused the publication of a notice stating that
the property in question was the subject-matter of an agreement between Anantaraju and
himself and it should not be dealt with by anyone. The publication of this notice was relied
upon subsequently on behalf of the complainant Haradara by his advocate (Respondent 2),
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Ashok in seeking an order of attachment. The court accepted his submissions and passed the
order of attachment.
(6) Subsequently the defendant Anantaraju executed the sale deed dated 27-11-1981 in
favour of Gautam Chand. The object of the suit was achieved. The sale deed was in fact
executed during the subsistance of the order of attachment concerning the same property. The
plaintiff Haradarahas not objected to it at any time. Consistently, the appellant had reasons to
believe the information of settlement of dispute, conveyed by the three parties together on 9-12-
1981.
(7) Gautam Chand (RW 3) and the complainant Haradara acted in mutual interest and
secured the attachment of property which was the subject-matter of an agreement to sell in
favour of Gautam Chand. The suit instituted in the name of the complainant Haradara was only
for the benefit of Gautam Chand by reference to this interest in the property.
(8) The appellant conveyed information of the settlement of dispute by his note made on
the docket. He drew a diagram of the location of residence of the Respondent 2 Ashok advocate
(Ex. R-l-A at p. 14 Additional Documents). The papers were delivered to Respondent 2 Ashok
advocate by Gautam Chand (RW 3).
(9) After satisfying himself, Respondent 2 Ashok advocate appeared in court on 10-12-
1981 and filed a memo prepared in his handwriting recording the fact of settlement of dispute
and seeking withdrawal of the suit. The court passed order dated 10-12-1981 dismissing the
suit, OS No. 1965 of 1981.
(10) Even though the plaintiff Haradara gained knowledge of the disposal of suit, he did
not meet the appellant nor did he address him for over 1½ years until May 1983. He did not also
immediately apply for the restoration of suit. An application for restoration was filed on the last
date of limitation on 11-1-1982. The application Misc. 16 of 1982 was later allowed to be
dismissed for default on 30-7-1982. It was later sought to be revived by application Misc. No.
581 of 1982. Necessary orders were obtained on 16-7-1982. Thus Misc. 16 of 1982
(Application for restoration of suit) is pending in civil court.
On a survey of the legal landscape in the area of disciplinary proceedings this scenario emerges:
(1) In exercise of powers under Section 35 contained in Chapter V entitled “conduct of
advocates”, on receipt of a complaint against an advocate (or suomotu) if the State Bar Council
has ‘reason to believe’ that any advocate on its roll has been guilty of “professional or other
misconduct”, disciplinary proceeding may be initiated against him.
(2) Neither Section 35 nor any other provision of the Act defines the expression ‘legal
misconduct’ or the expression ‘misconduct’.
(3) The Disciplinary Committee of the State Bar Council is authorised to inflict
punishment, including removal of his name from the rolls of the Bar Council and suspending
him from practice for a period deemed fit by it, after giving the advocate concerned and the
‘Advocate General’ of the State an opportunity of hearing.
(4) While under Section 42(1) of the Act the Disciplinary Committee has been conferred
powers vested in a civil court in respect of certain matters including summoning and enforcing
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attendance of any person and examining him on oath, the Act which enjoins the Disciplinary
Committee to ‘afford an opportunity of hearing’ (vide Section 35) to the advocate does not
prescribe the procedure to be followed at the hearing.
(5) The procedure to be followed in an enquiry under Section 35 is outlined in Part VII of
the Bar Council of India Rules2made under the authority of Section 60 of the Act.
(6) Rule 8(1) of the said Rules enjoins the Disciplinary Committee to hear the concerned
parties that is to say the complainant and the concerned advocate as also the Attorney General
or the Solicitor General or the Advocate General. It also enjoins that if it is considered
appropriate to take oral evidence the procedure of the trial of civil suits shall as far as possible
be followed. - At this juncture it is appropriate to articulate some basic principles which must inform the
disciplinary proceedings against members of the legal profession in proceedings under Section 35
of the Advocates Act, read with the relevant Rules:
(i) essentially the proceedings are quasi-criminal in character inasmuch as a member of
the profession can be visited with penal consequences which affect his right to practise the
profession as also his honour; under Section 35(3)(d) of the Act, the name of the advocate
found guilty of professional or other misconduct can be removed from the State Roll of
Advocates. This extreme penalty is equivalent of death penalty which is in vogue in
criminal jurisprudence. The advocate on whom the penalty of his name being removed
from the roll of advocates is imposed would be deprived of practising the profession of his
choice, would be robbed of his means of livelihood, would be stripped of the name and
honour earned by him in the past and is liable to become a social apartheid. A disciplinary
proceeding by a statutory body of the members of the profession which is statutorily
empowered to impose a punishment including a punishment of such immense proportions
is quasi-criminal in character;
(ii) as a logical corollary it follows 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, conjecture or suspicion. It will also be essential to consider the dimension
regarding mens rea.
This proposition is hardly open to doubt or debate particularly having regard to the view taken by
this Court in L.D. Jaisinghani v. Naraindas N. Punjabi [(1976) 1 SCC 354], wherein Ray, C.J.,
speaking for the Court has observed:
“In any case, we are left in doubt whether the complainant’s version, with which he had
come forward with considerable delay was really truthful. We think that in a case of this
nature, involving possible disbarring of the advocate concerned, the evidence should be of
a character which should leave no reasonable doubt about guilt. The Disciplinary
Committee had not only found the appellant guilty but had disbarred him permanently.”
(emphasis added)
(iii) 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
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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 2 of Part VI of the Rules governing
advocates, framed under Section 60(3) and Section 49(1)(g) of the Act, which form 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 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. - The State Bar Council, after calling for the comments of the appellant in the context of the
complaint, straightway 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. The Disciplinary Committee
straightway proceeded to record evidence. 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 has heard arguments
and rendered the order under appeal. - The questions which have surfaced are:
(1) Whether a specific charge should have been framed apprising the appellant of the true
nature and content of the professional misconduct ascribed to him?
(2) Whether the doctrine of benefit of doubt and the need for establishing the basic
allegations were present in the mind of the Disciplinary Authority in recording the finding of
guilt or in determining the nature and extent of the punishment inflicted on him?
(3) Whether in the absence of the charge and finding of dishonesty against him the
appellant could be held guilty of professional misconduct even on the assumption that he had
acted on the instructions of a person not authorised to act on behalf of his client if he was acting
in good faith and in a bona fide manner. Would it amount to lack of prudence or non-culpable
negligence or would it constitute professional misconduct?
Now so far as the procedure followed by the State Bar Council at the enquiry against the appellant,
is concerned it appears that in order to enable the concerned advocate to defend himself properly, an
appropriate specific charge was required to be framed. No doubt the Act does not outline the
procedure and the Rules do not prescribe the framing of a charge. But then even in a departmental
proceeding in an enquiry against an employee, a charge is always framed. Surely an advocate
whose honour and right to earn his livelihood are at stake can expect from his own professional
brethren, what an employee expects from his employer? Even if the rules are silent, the paramount
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and overshadowing considerations of fairness would demand the framing of a charge. In a
disciplinary proceeding initiated at the level of this Court even though the Supreme Court Rules did
not so prescribe, in Re Shri ‘M’ an Advocate of the Supreme Court of India [AIR 1957 SC 149],
this Court framed a charge making these observations:
We treated the enquiry in chambers as a preliminary enquiry and heard arguments on
both sides with reference to the matter of that enquiry. We came to the conclusion that this
was not a case for discharge at that stage. We accordingly reframed the charges framed by
our learned brother, Bhagwati, J. and added a fresh charge. No objection has been taken to
this course. But it is as well to mention that, in our opinion, the terms of Order IV, Rule 30
of the Supreme Court Rules do not preclude us from adopting this course, including the
reframing of, or adding to, the charges specified in the original summons, where the
material at the preliminary enquiry justifies the same. The fresh enquiry before us in court
has proceeded with reference to the following charges as reframed and added to by us.
It would be extremely difficult for an advocate facing a disciplinary proceeding to effectively
defend himself in the absence of a charge framed as a result of application of mind to the allegations
and to the question as regards what particular elements constituted a specified head of professional
misconduct. - The point arising in the context of the non-framing of issues has also significance. As
discussed earlier Rule 8(1) enjoins that “the procedure for the trial of civil suits, shall as far as
possible be followed”. Framing of the issues based on the pleadings as in a civil suit would be of
immense utility. The controversial matters and substantial questions would be identified and the
attention focussed on the real and substantial factual and legal matters in context. The parties would
then become aware of the real nature and content of the matters in issue and would come to know
(1) on whom the burden rests (2) what evidence should be adduced to prove or disprove any matter
(3) to what end cross-examination and evidence in rebuttal should be directed. When such a
procedure is not adopted there exists inherent danger of miscarriage of justice on account of virtual
denial of a fair opportunity to meet the case of the other side. We wish the State Bar Council had
initially framed a charge and later on framed issues arising out of the pleadings for the sake of
fairness and for the sake of bringing into forefront the real controversy. - In the light of the foregoing discussion the questions arising in the present appeal may now
be examined. In substance the charge against the appellant was that he had withdrawn a suit as
settled without the instructions from the complainant. It was not the case of the complainant that the
appellant had any dishonest motive or that he had acted in the matter by reason of lack of probity or
by reason of having been won over by the other side for monetary considerations or otherwise. The
version of the appellant was that the suit which had been withdrawn had been instituted in a
particular set of circumstances and that the complainant had been introduced to the appellant for
purposes of the institution of the suit by an old client of his viz. RW 3 Gautam Chand. The
appellant was already handling a case on behalf of RW 3 Gautam Chand against RW 4 Anantaraju.
The decision to file a suit on behalf of the complainant against RW 4 Anantaraju was taken in the
presence of RW 3 Gautam Chand. It was at the instance and inspiration of RW 3 Gautam Chand
that the suit had been instituted by the complainant, but really he was the nominee of Gautam
Chand and that the complainant himself had no real claim on his own. It transpires from the records
that it was admitted by the complainant that he was not maintaining any account books in regard to
the business and he was not an income tax assessee. In addition, the complainant (PW 1) Haradara
himself has admitted in his evidence that it was Gautam Chand who had introduced him to the
appellant, and that he was in fact taken to the office of the appellant for filing the said suit, by
Gautam Chand. It was this suit which was withdrawn by the appellant. Of course it was withdrawn
244
without any written instructions from the complainant. It was also admitted by the complainant that
he knew the defendant against whom he had filed the suit for recovery of Rs 30,000 and odd
through Gautam Chand and that he did not know the defendant intimately or closely. He also
admitted that the cheques used to be passed in favour of the party and that he was not entitled to the
entire amount. He used to get only commission. - Even on the admission of the complainant himself he was taken to the office of the appellant
for instituting the suit, by RW 3 Gautam Chand, an old client of the appellant whose dispute with
the defendant against whom the complainant had filed the suit existed at the material time and was
being handled by the appellant. The defence of the appellant that he had withdrawn the suit in the
circumstances mentioned by him required to be considered in the light of his admissions. The
defence of the appellant being the suit was withdrawn under the oral instructions of the complainant
in the presence of RW 3 Gautam Chand and RW 4 Anantaraju and inasmuch as RWs 3 and 4
supported the version of the appellant on oath, the matter was required to be examined in this
background. Assuming that the evidence of the appellant corroborated by RWs 3 and 4 in regard to
the presence of the complainant was not considered acceptable, the question would yet arise as to
whether the withdrawal on the part of the appellant as per the oral instructions of RW 3 Gautam
Chand who had taken the complainant to the appellant for instituting the suit, would amount to
professional misconduct. Whether the appellant had acted in a bona fide manner under the honest
belief that RW 3 Gautam Chand was giving the instructions on behalf of the complainant requires to
be considered. If he had done so in a bona fide and honest belief would it constitute professional
misconduct, particularly having regard to the fact that no allegation regarding corrupt motive was
attributed or established. Here it has to be mentioned that the appellant had acted in an open manner
in the sense that he had in his own hand-made endorsement for withdrawing the suit as settled and
sent the brief to his junior colleague. If the appellant had any oblique motive or dishonest intention,
he would not have made the endorsement in his own hand. - No doubt Rule 19 contained in Section 2 captioned ‘Duty to the clients’ provides that an
advocate shall not act on the instructions of any person other than his client or his authorised agent.
If, therefore, the appellant had acted under the instructions of RW 3 Gautam Chand bona fide
believing that he was the authorised agent to give instructions on behalf of the client, would it
constitute professional misconduct. Even if RW 3 was not in fact an authorised agent of the
complainant, but if the appellant bona fide believed him to be the authorised agent having regard to
the circumstances in which the suit came to be instituted, would it constitute professional
misconduct? Or would it amount to only an imprudent and unwise act or even a negligent act on the
part of the appellant? These were the questions which directly arose to which the Committee never
addressed itself. There is also nothing to show that the Disciplinary Committee has recorded a
finding on the facts and the conclusion as regards the guilt in full awareness of the doctrine of
benefit of doubt and the need to establish the facts and the guilt beyond reasonable doubt. As has
been mentioned earlier, no charge has been formulated and framed, no issues have been framed.
The attention of the parties was not focussed on what were the real issues. The appellant was not
specifically told as to what constituted professional misconduct and what was the real content of the
charge regarding the professional misconduct against him. - In the order under appeal the Disciplinary Committee has addressed itself to three questions
viz.:
(i) Whether the complainant was the person who entrusted the brief to the appellant
and whether the brief was entrusted by the complainant to the appellant?
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(ii) Whether report of settlement was made without instruction or knowledge of the
complainant?
(iii) Who was responsible for reporting settlement and instructions of the complainant?
In taking the view that the appellant had done so probably with a view to clear the cloud of title of
RW 3 as reflected in para 22 quoted herein, the Disciplinary Committee was not only making
recourse to conjecture, surmise and presumption on the basis of suspicion but also attributing to the
appellant a motive which was not even attributed by the complainant and of which the appellant
was not given any notice to enable him to meet the charge:
“It is not possible to find out as to what made PW 2 to have done like that. As already
pointed out the house property which was under attachment had been purchased by RW 3
during the subsistence of the attachment. Probably with a view to clear the cloud of title of
RW 3, PW 2 might have done it. This is only our suspicion whatever it might be, it is clear
that RW 2 had acted illegally in directing RW 1 to report settlement.” - In our opinion 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.
The impugned order passed by the Disciplinary Committee, therefore cannot be sustained. Since we
do not consider it appropriate to examine the matter on merits on our own without the benefit of the
finding recorded by the Disciplinary Committee of the apex judicial body of the legal profession,
we consider it appropriate to remit the matter back to the Disciplinary Committee. As observed by
this Court in O.N. Mohindroo v. District Judge, Delhi [(1971) 2 SCR 11], we have no doubt that
the Disciplinary Committee will approach the matter with an open mind:
From this it follows that questions of professional conduct are as open as charges of
cowardice against Generals or reconsideration of the conviction of persons convicted of
crimes. Otherwise how could the Hebron brothers get their conviction set aside after
Charles Peace confessed to the crime for which they were charged and held guilty?
We must explain why we consider it appropriate to remit the matter back to the Bar Council of
India. This matter is one pertaining to the ethics of the profession which the law has entrusted to the
Bar Council of India. It is their opinion of a case which must receive due weight because in the
words of Hidayatullah, C.J., in Mohindroocase:
This matter is one of the ethics of the profession which the law has entrusted to the Bar
Council of India. It is their opinion of a case which must receive due weight.
It appears to us that the Bar Council of India must have an opportunity to examine the very vexed
and sensitive question which has arisen in the present matter with utmost care and consideration, the
question being of great importance for the entire profession. We are not aware of any other matter
where the apex body of the profession was required to consider whether the bona fide act of an
246
advocate who in good faith acted under the instructions of someone closely connected with his
client and entertained a bona fide belief that the instructions were being given under the authority of
his client, would be guilty of misconduct. It will be for the Bar Council of India to consider whether
it would constitute an imprudent act, an unwise act, a negligent act or whether it constituted
negligence and if so a culpable negligence, or whether it constituted a professional misconduct
deserving severe punishment, even when it was not established or at least not established beyond
reasonable doubt that the concerned advocate was acting with any oblique or dishonest motive or
with mala fides. This question will have to be determined in the light of the evidence and the
surrounding circumstances taking into account the doctrine of benefit of doubt and the need to
record a finding only upon being satisfied beyond reasonable doubt. In the facts and circumstances
of the present case, it will also be necessary to re-examine the version of the complainant in the
light of the foregoing discussion keeping in mind the admission made by the complainant that he
was not maintaining any books of accounts and he was not an income tax assessee and yet he was
the real plaintiff in the suit for Rs 30,000 and odd instituted by him, and in the light of the
admission that it was RW 3 Gautam Chand who had introduced him to the appellant and that he was
in fact taken to the office of the appellant, for filing the suit, by RW 3 Gautam Chand. The aforesaid
question would arise even if the conclusion was reached that the complainant himself was not
present and had not given instructions and that the appellant had acted on the instructions of RW 3
Gautam Chand who had brought the complainant to the appellant’s office for instituting the suit and
who was a close associate of the complainant. 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 this 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. We are reminded of the
high degree of fairness with which the Bar Council of India had acted in Mohindroocase. The
advocate concerned was suspended from practice for four years. The Bar Council had dismissed the
appeal. Supreme Court had dismissed the special leave petition summarily. And yet the whole
matter was reviewed at the instance of the Bar Council and this Court was persuaded to grant the
review. A passage extracted from Mohindroocase deserves to be quoted in this connection:
We find some unusual circumstances facing us. The entire Bar of India are of the opinion
that the case was not as satisfactorily proved as one should be and we are also of the same
opinion. All processes of the court are intended to secure justice and one such process is the
power of review. No doubt frivolous reviews are to be discouraged and technical rules have
been devised to prevent persons from reopening decided cases. But as the disciplinary
committee themselves observed there should not be too much technicality where professional
honour is involved and if there is a manifest wrong done, it is never too late to undo the wrong.
This Court possesses under the Constitution a special power of review and further may pass any
order to do full and effective justice. This Court is moved to take action and the Bar Council of
India and the Bar Association of the Supreme Court are unanimous that the appellant deserves
to have the order debarring him from practice set aside. - We have therefore no doubt that upon the matter being remitted to the Bar Council of India
it will be dealt with appropriately in the light of the aforesaid perspective. We accordingly allow
this appeal, set aside the order of the Bar Council insofar as the appellant is concerned and remit the
matter to the Bar Council of India. We, however, wish to make it clear that it will not be open to the
complainant to amend the complaint or to add any further allegation. We also clarify that the
evidence already recorded will continue to form part of the record and it will be open to the Bar
247
Council of India to hear the matter afresh on the same evidence. It is understood that an application
for restoration of the suit which has been dismissed for default in the city civil court at Bangalore
has been made by the complainant and is still pending before the court. It will be open to the Bar
Council of India to consider whether the hearing of the matter has to be deferred till the application
for restoration is disposed of. The Bar Council of India may give appropriate consideration to all
these questions. - We further direct that in case the judgment rendered by this Court or any part thereof is
reported in law journals or published elsewhere, the name of the appellant shall not be mentioned
because the matter is still sub judice and fairness demands that the name should not be specified.
The matter can be referred to as An Advocate v. Bar Co
