38737044 prahalad-saran-gupta-case-study

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CONTENTS PAGE

TABLE OF CASES……………………………………………….…….01

INTRODUCTION……………………………………………...............03

WHAT IS PROFESSIONAL MISCONDUCT?...................................04

BRIEF FACTS OF THE CASE…………………………………….….07

CONTENTIONS OF THE PARTIES AND JUDGMENT OF THE COURT………………………………….……08

LEGAL PROVISIONS INVOLVED……………………………….…11

CONCLUSION………………………………………………………....13

LEADING CASES OF PROFESSIONAL MISCONDUCT IN INDIA…………………………...…………….….15

BIBILOGRAPHY………………………………………………...........19

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TABLE OF CASES

Cases………………………………………………….…...…Page No Bar Council of Maharashtra V. N.V. Dolholkar, AIR 1976 SC 242State (Delhi)……………………….….05

Re Tulsidas Amanmal, AIR 1941 Bombay 228……………………………………………………………….05

V.P. Kumaravelu v. Bar Council of India, AIR 1997 SC 1014 ………………………………………………05 Administration) v. Pali Ram, 1979(1) SCR 931……………………………………………………….………08

Harish Chandra Tiwari v. Baiju................................................................................................................12

G.Sridher & Anr. v. State of A.P. 2005(2) RCR(Cri.) 116 A.P……………………………………..………..13

New Delhi Bar Ass. (Regd.) & Ors. v. National Capital Territory of Delhi Govt. of Delhi, 2004(2) RCR (Cri.) 40 Delhi. …………………………………………………………………………………...15

U.O.I. v. Gulshan Bajwa, JT 2003(8) (SC) 440…………………………………………………………….15 Raghu Bhai Surabhai Bhawad v. Satish Kumar Ranchhoddas Patel, 2003 Cri.L.J. 3984 Guj. ……….15

N. Natrajan v. B. K. Subba Rao, 20003 (2) RCR (Cri. ) 424 (SC)………………………………………15

R.N. Sharma Advocate v. state of Haryana , 2003 (3) RCR (Cri) 166 (P&H)……………………………..15

Bar Council of A. P. v Kurapati Satyanarayana, 2003 SCC (Cri.) 155: AIR 2003 SC 175……………….15

Ajay Mehta v. State of Karnataka, 2003 (1) RCR (Cri) 429(Karnataka)……………………………………15 MCS- Barna v. C.B. Ramanurthy, 2002 (3) RCR (Cri.) 696 (Karnataka)………………………………….15

Harish Chander Tiwari v. Baiju, 2002 SCC (Cri,) 294 (SC): AIR 2002 SC 548………………………..16

Mohd. Khalid v . State of Wst Bangal ,2002 (4) Crimes 160 (SC)………………………………………… 16 Bhupinder Kumar Sharma v. Bar Ass. Pathankot, Jt 2001 (9) (SC) 480: AIR 2002 SC 41……………...16

Mathai v. Principal Distt. & Sessions Judge,

1999 (2) RCR (Cri.) 1 Kerala 1999 (2) RCR (Cri.) 373 (SC)………………………………………………..16 P.K. Sharma v. Gurdial Singh, AIR 1999 SC 98……………………………………………………………..16

Vinay Balchandra Joshi v. Registrar General , supreme Court of India, AIR 1999 SC 107……………..16

Bapurao khiddey v. Suman doudey, JT 1999 (1) (SC) 273 : AIR 1999 SC 916…………………………16 Baldev Singh Dhingra v. madan Lal gupta, 1999 SCC (Cri,) 317: AIR 1999 SC 902…………………….16

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Balbir Singh v.State of Punjab, 1984 cri. L.J. 421……………………………………………………………16

D.S. Dalal v. State Bank of India, 1993 (2) RRR 116: AIR 1993 SC 1608………………………………...16

Giri Raj Parshad Sharma v. Rajasthan Uni. 1987 civil Court Cases 37……………………………………17

B. M. Verma v. Uttrakhand Regulatory Commission...............................................................................17 Court of Its Own Motion v. State.............................................................................................................17

SC Bar Association v. Union of India......................................................................................................17

Hikmat Ali khan v. Ishwar prasad arya and ors.......................................................................................17 Vinay chandra mishra, in re.....................................................................................................................17

Ex-capt. Harish uppal V. Union of India..................................................................................................17

Rajendra V. Pai Vs. Alex Fernandes and Ors.........................................................................................17

Harish Chandra Tiwari v. Baiju................................................................................................................17

Shambhu Ram Yadav v. Hanuman Das Khatry ......................................................................................18

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INTRODUCTION

An advocate is the most accountable, privileged and erudite person of the society and his act

are role model for the society, which are necessary to be regulated. Professional misconduct

is the behaviour outside the bounds of what is considered acceptable or worthy of its

membership by the governing body of a profession. Professional misconduct refers to

disgraceful or dishonourable conduct not befitting an advocate. [1]

Generally the legal profession is not a trade or business, it’s a gracious, the noble, and

decontaminated profession of the society. Members belonging to this profession have not to

encourage deceitfulness and corruption, but they have to strive to secure justice to their

clients. The credibility and reputation of the profession depends upon the manner in which

the members of the profession conduct themselves. It’s a symbol of healthy relationship

between Bar and Bench. There is heavy responsibility on those on whom duties’ are vested

by the virtue of being a part of my most credible as plausible profession of the society.

The instant case is a landmark judgment of the Supreme Court of India regarding

“Professional Misconduct” as envisaged under Section 35 of The Advocates Act, 1961. The

case came up to the Supreme Court as an appeal U/S.38 of the Advocates Act, 1961 before a

bench comprising of S.C. Agrawal and G.B. Pattanaik, JJ.

In the present case the appellant had been held guilty of serious Professional Misconduct by

the Bar Council of india upon an enquiry through its Disciplinary Committee. The Supreme

Court, on appeal, examined the same and came to a conclusion that the appellant had indeed,

violated the trust placed upon him and committed a breach of his duty as an advocate. He was

held guilty of misconduct under the Advocates Act, 1961 and punished with reprimand.

Thus the case illustrated a fine point where the judiciary upheld the spirit of law and the

dignity of the Legal profession. This case was cited in later cases as a precedent where the

issue of misappropriation or wrongful retention of the client’s money was involved in cases

of alleged misconduct by the advocates.

[1] www.jurisonline.in/2010/04/‘professional-misconduct’

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WHAT IS PROFESSIONAL MISCONDUCT?

Misconduct: it is a sufficiently wide expression: it is not necessary that it should involve

moral turpitude. Any conduct which in any way renders a man unfit for the exercise of his

profession or is likely to hamper or embarrass the administration of justice maybe considered

to be misconduct calling for disciplinary action. It cannot be said that an advocate can never

be punished for professional misconduct committed by him in his personal capacity.

The Advocates Act, 1961 as well Indian Bar Council are silent in providing exact definition

for profession misconduct because of its scope, though under Advocate Act, 1961 to take

disciplinary action punishment are prescribed when the credibility and reputation on the

profession comes under a clout on account of acts of omission and commission any member

of the profession.

The general meaning of the words, “professional or other misconducts” under Section 35 of

Advocates act, 1961 is misconduct in professional or other capacity.

This concept has evolved from Section 13 of Legal Practitioners Act, 1879 which had

classified misconduct of a lawyer as follows:

1. Pleader who takes instructions in any case except from the party on whom behalf he is

retained or some person who is the recognized agent of such party or some servant or

relative or friend authorized by the party to give such instructions

2. Pleader who is guilty of fraudulent or grossly improper conduct in the discharge of his

professional duties.

3. Pleader who tenders or gives consents to the retention out of any fee or payable to him

for his services of any gratification for procuring or having procured the employment

in any legal business of himself or any other pleader

4. Pleader who directly or indirectly procures or attempts to procure the employment of

himself or such pleader through or buy intervention of any person to whom an

remuneration for obtaining such employment has been given by him or agreed or

promised to be so given

5. Pleader who accepts any employment or legal business through a person who has

been proclaimed as a tout under section 36

6. Pleader who is guilty of any other reasonable cause.

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Chapter V of the Advocates Act, 1961 deals with the “Conduct of Advocates”. Sec 35 deals

with provisions pertaining to Punishment to an Advocate in a case of Professional

misconduct. Sub-section 1 of Section 35 provides for that where upon 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 misconducts, it shall refer the case for disposal to its

Disciplinary Committee.

According to Sub-section 1A of Section 35, the State Bar Council may, either of its own

motion or on application made to it by any person interested to withdraw a preceding pending

before its disciplinary committee and direct the enquiry to be made by any other disciplinary

committee of state bar council sec 35(2) provides that disciplinary committee of state bar

council shall fix the date for hearing of the case, and shall cause a notice hereof to be given to

the advocate concerned and Advocate - General of the state.

Sub – sec 3 of sec 35 provides that disciplinary committee of state bar council after giving the

advocate concerned and 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 deemed fit;

(d) Remove the name of the advocate from the State roll of advocates.

Sub sec 4 of sec 35 lays down that Where an advocate is suspended from practice under

clause(c) of subsection (3) he shall, during the period of suspension, be debarred from

practicing in any court or before any authority or person in India.

Sub sec 5 of sec 35 lays down that 5) Where any notice is issued to the Advocate-General

under subsection (2), the Advocate-General may appear before the disciplinary committee of

the State Bar Council either in person or through any advocate appearing on his behalf.

In Bar Council of Maharashtra V. N.V. Dolholkar, AIR 1976 SC 242, the Supreme Court has

held that –

“on receipt of complaint, the bar council is required to apply its mind to find out

whether there is any reason to believe that any advocate has been guilty of

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professional or other misconduct. In this has, it has not been done, hence the

proceeding before the disciplinary committee.”[2]

In Re Tulsidas Amanmal, AIR 1941 Bombay 228, it has been held by Bombay High Court

that –

“the term “misconduct” is a sufficiently wide expression. It is not necessary that it

should involve moral turpitude. Any conduct within any way renders a man unfit for

the exercise of his professional or is likely to hamper or embarrass the administration

of justice by superior court or any of the other courts subordinate thereto, may be

considered to be misconduct calling for the disciplinary action.”[3]

The Supreme Court has held in V.P. Kumaravelu v. Bar Council of India, AIR 1997 SC

1014,that –

“gross negligence in the discharge of duties partakes the shades of delinquency and

would undoubtedly amount to professional misconduct. Similarly, a conduct which

amounts to dereliction of duty by an advocate towards his client or towards his case,

would amount to professional misconduct. But the negligence without moral

turpitude or delinquency may not amount to professional misconduct,”[4]

[2] www.indiankanoon.org/cached/1959104

[3] www.legalserviceindia.com

[4] www.manupatrainternational.in

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BRIEF FACTS OF THE CASE

1. The case came up as an appeal to the Supreme Court under Section 38 of the Advocates

Act, 1961. It was filed by the appellant – Prahlad Saran Gupta, who was an advocate

practicing at Ghaziabad. The appeal was filed against the judgment of the Disciplinary

Committee of Bar Council of India.

2. The Disciplinary Committee had found the appellant guilty of serious professional

misconduct and had imposed the punishment of suspension from practice for one year.

3. The appellant was appearing for the decree holder in the case of M/s. Atma Ram Nanak

Chand v. Shri Ram Contractor in the Court of Civil Judge, Ghaziabad.

4. Thereafter, the U.P. State Bar Council received a complaint from Rajendra Prasad, a

partner of the firm M/s. Atma Ram Nanak Chand wherein he made a number of

allegations against the appellant.

5. The appellant filed a reply to the State Bar Council and denied all such allegations.

6. The State Bar Council thereupon referred the case to one of its Disciplinary Committees

but the said Committee could not complete the proceedings in the prescribed time of one

year and, therefore, the proceedings were transferred to the Bar Council of India under

Section 36b of the Act and thereafter the Disciplinary Committee dealt with the

proceedings.

7. The Disciplinary Committee has, however, found the appellant guilty of gross

professional misconduct on the basis of its findings.

8. Thus the present appeal was filed under Section 38 of the Advocates Act, 1961 before the

Supreme Court.

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CONTENTIONS OF THE PARTIES AND JUDGMENT

OF THE COURT

The appellant denied having committed any Misconduct, professional or otherwise. He

challenged the Disciplinary Committee’s findings on various counts.

1. Disciplinary Committee had held the appellant guilty of professional misconduct on

the basis of the charge relating to notice under Section 80 C.P.C. having been drafted

by the appellant. It was alleged that since the appellant was himself a standing counsel

for the Railways, he shouldn’t have drafted a notice against the same.

2. Shri R.B. Mehrotra, the learned senior counsel appearing for the appellant submitted

that the Disciplinary Committee had erred in its finding. The appellant submitted that

the said charge was not contained in the complaint filed by the complainant and was

put forward for the first time before the Disciplinary Committee of the State Bar

Council by the complainant in his application.

3. Furthermore, and more importantly, the request of the appellant for examination of

the handwriting in the draft of the notice by an expert to show that the said draft of the

notice was not in the handwriting of the appellant was rejected by the Disciplinary

Committee. Thus, the Disciplinary Committee was in error in holding, on the basis of

a comparison by itself of the admitted handwriting of the appellant with the

handwriting in, that the same was written by the appellant.

4. The Court held that – despite having made a request to the Disciplinary Committee

for expert examination of handwriting in order to compare his handwriting with the

one in the Notice, the Disciplinary Committee rejected the request and arrived at such

conclusion on its own, through its own comparison.

5. Such rejection of the request was done by the Disciplinary Committee citing the

reason that no useful purpose would be served because the allegation relating to the

said document was not contained originally in the complaint. The Court ruled that -

“Thus, having rejected the request for sending the said document to a

handwriting expert for examination on the view that the said allegation was

not contained in the complaint as originally filed, the Disciplinary Committee

was in error in going into the merits of the said allegation and furthermore in

comparing the writing in the said document with the handwriting of the

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appellant without the assistance of the opinion of a handwriting expert and in

coming to the conclusion that the said document was in the handwriting of the

appellant.”

6. The court also made a reference to the judgment in the case of State (Delhi

Administration) v. Pali Ram, 1979(1) SCR 931[5], wherein it was held by the Hon’ble

Supreme Court that –

“although there is no legal bar on the examination of handwriting by a judge,

he should, as a matter of prudence and caution, hesitate to base his finding

with regard to the identity of a handwriting which forms the sheet-anchor of

the prosecution case against a person accused of an offence solely on

comparison made by himself. It is, therefore, not advisable that a Judge

should take upon himself the task of comparing the admitted writing with the

disputed one to find out whether the two agree with each other; and the

prudent course is to obtain the opinion and assistance of an expert.''[P. 944]”

7. The court therefore, ruled against the finding of the Disciplinary Committee that the

appellant was guilty of serious professional misconduct due to him having prepared

the draft Notice U/S. 80 C.P.C. which was served to the Railways. The court stated

that, this offence was of quasi-criminal nature and hence, required proof beyond

reasonable doubt, which could only have been established through the aid of an expert

in order to compare the handwriting.

8. The Court further rejected the bar Council’s finding that the appellant was guilty of

misconduct with regard to the letter sent to Shri V.K. Gupta. The court held that no

reliance could be placed on the evidence of Shri Ram that the appellant had handed

over that letter (addressed to Shri V.K. Gupta, Advocate, at Allahabad) to Shri Ram

for the purpose of his obtaining stay of execution proceedings from the Allahabad

High Court, in which the appellant was engaged on behalf of the Decree holder.

9. The only count on which the Court did find the appellant guilty of Professional

Misconduct was regarding the withholding of the money due to the Decree holder.

The appellant wrongfully retained Rs. 1,500/- with himself, which were due to the

decree holder.

10. The appellant claimed that that the said sum was placed with him by both the parties,

namely, Shri Nanak Chand, partner of firm M/s. Atma Ram Nanak Chand (decree

holder), and Shri Ram (judgment debtor) in connection with a settlement which was

being negotiated between them, and that the appellant refused to pay the said money

[5] AIR 1979 SC 14: SCR 931

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to the decree holder, for the reason that it could be paid only if a joint receipt of both

the parties was handed over to him.

11. This was rejected by the Supreme Court. Even when such proposed settlement did not

fructify, the appellant did not return the amount of Rs. 1,500/- either to the decree

holder or to the judgment debtor and continued to retain the same with him till he

deposited it in the court on May 2, 1978.

12. The Court further observed that the order sheet of the execution case shows that the

proceedings had terminated on April 4, 1978, whereas, the amount was returned only

on May 2, 1978 when he deposited it in the court.

13. The Court held that this was not in consonance with the standards of professional

ethics expected from a senior member of the profession and amounted to Professional

Misconduct for his having wrongfully retained Rs. 1,500/- which had been kept with

him in connection with the settlement in the execution proceedings.

14. The Court further ordered a punishment of reprimand to be imposed on the appellant

for the said misconduct on his part.

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LEGAL PROVISIONS INVOLVED

THE ADVOCATES ACT, 1961

CHAPTER V : SEC 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 its roll has been guilty of professional or other misconduct,

it shall refer the case for disposal to its disciplinary committee.

[(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 mid direct the inquiry to be made by any other disciplinary committee of

that State Bar Council;]

(2) The disciplinary committee of a State Council shall fix a date for the hearing of the

case and shall cause a notice thereof to be given to the advocate concerned and to the

Advocate General of the State.

(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 deemed 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 subsection (3) he

shall, during the period of suspension, be debarred from practicing in any court or

before any authority or person in India.

(5) Where any notice is issued to the Advocate-General under subsection (2), the

Advocate-General may appear before the disciplinary committee of the State Bar

Council either in person or through any advocate appearing on his behalf.

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2[Explanation. -In this section 1[Section 37 and Section 38] the expression Advocate General'

and 'Advocate-General of the State' shall, in relation to the Union territory of Delhi, mean the

Additional Solicitor General of India].

1. Omitted by Act No. 107 of 1976

2. Ins. by Act no. 21 of 1964.

CHAPTER V : SEC 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], 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.]

1. Ins. by Act No. 60 of 1973.

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CONCLUSION

The role of the lawyers in the society is of great importance. They being part of the system of

delivering justice, hold great reverence and respect in the society. Each individual has a well

defined code of conduct which needs to be followed by the person living in the society. A

lawyer, in discharging his professional assignment has a duty to his client, a duty to his

opponent, a duty to the court, a duty to the society at large and a duty to himself [6]. It needs

a high degree of probity and poise to strike a balance and arrive at the place of righteous

stand, more so, when there are conflicting claims.

While discharging duty to the court, a lawyer should never knowingly be a party to any

deception, design or fraud. While placing the law before the court a lawyer is at liberty to put

forth a proposition and canvass the same to the best of his wits and ability so as to persuade

an exposition which would serve the interest of his client and the society.

In the instant case, the Hon’ble Supreme Court of India examined in detail the charges of

“professional misconduct” levelled against the appellant. He was found to have been guilty of

the same as he wrongfully withheld and retained the amounts due to the Decree holder with

himself and delayed paying it in spite of demands.

Thus, he breached his position of trust which the client had placed on him. This form of

conduct is not worthy of an advocate and hence, the Court ordered that the penalty of

reprimand be imposed upon him. Therefore the appeal was partly allowed. While the

appellant was exonerated on other counts mentioned in the complaint regarding his alleged

misconduct, he was at the same time, held guilty on just one of them, being wrongfully

withholding the decree holder’s money.

Even in later cases, the Supreme Court has viewed such retention of the client’s money to be

the gravest form of misconduct. In the case of Harish Chandra Tiwari v. Baiju [7], the

court held that -

“among the different types of misconduct envisaged for a legal practitioner,

misappropriation of the client’s money must be regarded as one of the gravest. In this

[6] www.jurisonline.in/2010/04/‘professional-misconduct’ [7] 2002 SCC (Cri,) 294 (SC): AIR 2002 SC 548

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professional capacity the legal practitioner has to collect money from the client

towards expenses of the litigation, or withdraw money from the court payable to the

client or take money of the client to be deposited in court. In all such cases, when the

money of the client reaches his hand it is a trust. If a public servant misappropriates

money he is liable to be punished under the present Prevention of Corruption Act, with

imprisonment which shall not be less than one year. He is certain to be dismissed

from service. But if an advocate misappropriates money of the client there is no

justification in de-escalating the gravity of the misdemeanour. Perhaps the dimension

of the gravity of such breach of trust would be mitigated when the misappropriation

remained only for a temporary period. There may be justification to award a lesser

punishment in a case where the delinquent advocate returned the money before

commencing the disciplinary proceedings.”

Thus the strictest measures need to be undertaken to prevent and punish such instances from

taking place and breaching the healthy atmosphere required by the legal system to flourish

smoothly with mutual trust.

The legal profession is a solemn and serious occupation. It is a noble calling and all those

who belong to it are its honorable members. Although the entry to the profession can be had

acquiring merely the qualification of technical competence, the honor as a professional has to

be maintained by its members, by their exemplary conduct both in and outside the court.

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LEADING CASES OF PROFESSIONAL MISCONDUCT

IN INDIA

1. Non – appearance of the counsel in the case is professional misconduct. For withdrawal

notice to the client be given. G.Sridher & Anr. v. State of A.P. 2005(2) RCR(Cri.) 116 A.P.

2. False affidavit by deponent client regarding the age. The advocate has no responsibility.

New Delhi Bar Ass. (Regd.) & Ors. v. National Capital Territory of Delhi Govt. of Delhi,

2004(2) RCR (Cri.) 40 Delhi.

3. Advocates Act – State can appoint more than one addl. Advocate Generals of its choice.

This appointment is not constitutional, rather it is executive. M.T. Khan v. Govt. of A.P.,

JT 2004(1) (SC) 146 : AIR 2004 SC 2934

4. Allegations by the advocate against the Judges in Review petition after dismissal of SLP,

matter referred to the Bar Counsel of India for necessary action. U.O.I. v. Gulshan Bajwa,

JT 2003(8) (SC) 440.

5. Duty of advocate – One should not refer a judgment already overruled and that there is no

other judgment by larger bench. Raghu Bhai Surabhai Bhawad v. Satish Kumar

Ranchhoddas Patel, 2003 Cri.L.J. 3984 Guj.

6. Referring wrong arguments or Changing stand at different stages of proceedings is no

offence covering the application of s. 195 Cr. P.C . N. Natrajan v. B. K. Subba Rao,

20003 (2) RCR (Cri. ) 424 (SC): AIR 2003 SC 541: 2003 Cri. L.J. 820. Review – Order

already passed by the Bar Council can be reviewed even after 60 days. Licence cancelled

is restored . JT 2003 (4) (SC) 435. B

7. An advocate is an officer of the Court and legal profession is not a trade or business,

rather it is an officer of the court and legal profession is not a trade or business rather it is

a noble profession and advocates have to strive to secure justice for their clients within

legally permissible limits. R.N. Sharma Advocate v. state of Haryana , 2003 (3) RCR

(Cri) 166 (P&H).

8. State Bar council has quasi judicial power and it also perform the role of the prosecutor

and hence, is competent to file appeal being aggrieved person against the judgment of the

Bar council of India. Bar Council of A. P. v Kurapati Satyanarayana, 2003 SCC (Cri.)

155: AIR 2003 SC 175.

9. S. 303 Cr. P.C-Memo of appearance is sufficient in criminal case. Vakalatname is not

necessary like the civil case. Ajay Mehta v. State of Karnataka, 2003 (1) RCR (Cri)

429(Karnataka).

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10. Advocate cannot argue his own case as an advocate but he can argue his case while

appearing in person as general public. MCS- Barna v. C.B. Ramanurthy, 2002 (3) RCR

(Cri.) 696 (Karnataka).

11. Rs. 8118 received by the counsel on behalf of his client and kept with him. Then

produced forged documents to establish that he has paid the amount. Licence cancelled

permanently. Harish Chander Tiwari v. Baiju, 2002 SCC (Cri,) 294 (SC): AIR 2002 SC

548.

12. Advocates Act- Undue adjournments of the case is an abuse of the process and also a

misconduct. Mohd. Khalid v . State of Wst Bangal ,2002 (4) Crimes 160 (SC).

13. Professional Misconduct-Running of STD/Photocopier in the name of advocate. License

cancelled for 5 year. Bhupinder Kumar Sharma v. Bar Ass. Pathankot, Jt 2001 (9) (SC)

480: AIR 2002 SC 41.

14. Third person an on advocate can represent a party without being general power of

attorney of the party with the prior permission of the Court which has to be obtained by

the party and not by the third person. Mathai v. Principal Distt. & Sessions Judge, 1999

(2) RCR (Cri.) 1 Kerala 1999 (2) RCR (Cri.) 373 (SC).

15. Merely ownership of taxi in his name of an advocate is not sufficient without his personal

engagement in business. P.K. Sharma v. Gurdial Singh, AIR 1999 SC 98.

16. Supreme Court Rules for the allotment of the chambers of the advocates, Vinay

Balchandra Joshi v. Registrar General , supreme Court of India, AIR 1999 SC 107.

17. The disciplinary committee cannot dealt with the matter of an Advocate who was

treasurer of some society and the allegation was of no-accounting . Bapurao khiddey v.

Suman doudey, JT 1999 (1) (SC) 273 : AIR 1999 SC 916.

18. Advocates Act will not be applicable on an advocate during the period of the suspension

of his licence . Baldev Singh Dhingra v. madan Lal gupta, 1999 SCC (Cri,) 317: AIR

1999 SC 902;

19. The accused who is an advocate can represent his co-accused in the capacity of the

advocate in a criminal case till the licence of the accused advocate is in existence 2(1997)

CCR 536 : AIR 1980 Orissa 143.

20. Action taken by the disciplinary committee of the Bar Council of India is to be challenged

in Supreme court U/S. 38 of the Advocate Act and order 5 of the Supreme Court rules,

1966. 1997 (2) supreme 294.

21. Identification of a person by an advocate of a person in good faith without any personal

benefit is no offence under the Indian Penal code . Mensrea is a must. Balbir Singh v.

State of Punjab, 1994 (3) RCR 486 (P&H): 1994 CC Case 231: 1994 (2) CCI 749: 1995

(1) CC Case 97 HC. Balbir Singh v.State of Punjab, 1984 cri. L.J. 421.

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22. Fees charged by the advocate but suit not field .It amounts to misappropriation of amount.

D.S. Dalal v. State Bank of India, 1993 (2) RRR 116: AIR 1993 SC 1608.

23. Misconduct – Appearance of another counsel in the case without obtaining the permission

of the counsel already engaged by the client . it is misconduct on the part or the advocate

appearing afresh. Giri Raj Parshad Sharma v. Rajasthan Uni. 1987 civil Court Cases 37.

24. Contempt Of Court As Misconduct

B. M. Verma v. Uttrakhand Regulatory Commission[8] court noted that, it was given the wide powers available with a Court exercising contempt jurisdiction, court quoted

several he Delhi HC, Court of Its Own Motion v. State [9], ‘given the wide powers available with a Court

exercising contempt jurisdiction, it cannot afford to be hypersensitive and therefore, a

trivial misdemeanor would not warrant contempt action. SC Bar Association v. Union of India[10] Circumspection is all the more necessary,

the Court is in effect the jury, the judge and the hangman; M.R. Parashar H. L. Sehgal it was observed that the Court is also a prosecutor.

25. Attempt Of Murder -- Hikmat Ali khan v. Ishwar prasad arya and ors[11], Attempting to

commit murder punishable under Section 307,IPC. The gravity of the mis-conduct committed shows that he is unworthy of remaining in the profession. The mis-conduct, called for the imposition of the punishment of removal of the name of respondent from

the State roll under Section 35 of the Advocate Act.

26. Misbehaviour As Misconduct -- Vinay chandra mishra, in re [10] facts; senior advocate shout & insult the judge So he was sentenced to simple imprisonment for a period of six weeks and he shall stand suspended from practising as an advocate for a period of three

years.

27. Strike As Misconduct -- Ex-capt. Harish uppal V. Union of India[11] -- Whether the lawyers have a right to strike? Court cannot penalise any Advocate for this misconduct as the power to discipline is now exclusively with the Bar Councils.

28. Solicitation Of Professional Work -- Rajendra V. Pai Vs. Alex Fernandes and Ors.[12]

The appellant should not have indulged into prosecuting or defending a litigation in which he had a personal interest in view of his family property being involved.

29. Breach Of Trust By Misappropriating The Asset Of Client -- Harish Chandra Tiwari v. Baiju [13]; Court held that among the different types of misconduct envisaged for a legal

practitioner misappropriation of the client’s money must be regarded as one of the gravest.

[8] Appeal No. 156 of 2007

[9] 151 (2008) DLT 695 (Del., DB) [10] (1998) 4 SCC 409 [11] [1997] RD-SC 87

[12] AIR 2002 SC 1808 [13] 2002 SCC (Cri,) 294 (SC): AIR 2002 SC 548

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30. Informing About Bribe : Misconduct -- Shambhu Ram Yadav v. Hanuman Das Khatry,[14] Name should be struck off from, the roll of advocates maintained by the Bar

Council of Rajasthan. Court impose a cost of Rs. 5,000/- .

[14] (2001) 6 SCC 1. 165

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BIBLOGRAPHY

Prassad Anirudh, Principles of the ethics of legal profession in India :

accountancy for lawyers and bench-bar relations including contempt of

court, Jaipur University Book House, 2004.

Rai. K., History of courts, legislature & legal profession in India,

Faridabad : Allahabad Law Agency, 1985.

www.jurisonline.in/2010/04/‘professional-misconduct’

www.indiankanoon.org/cached/1959104

www.legalserviceindia.com

www.manupatrainternational.in

AIR 1979 SC 14: SCR 931

www.jurisonline.in/2010/04/‘professional-misconduct’

2002 SCC (Cri,) 294 (SC): AIR 2002 SC 548

Appeal No. 156 of 2007

151 (2008) DLT 695 (Del., DB)

(1998) 4 SCC 409

[1997] RD-SC 87

AIR 2002 SC 1808

2002 SCC (Cri,) 294 (SC): AIR 2002 SC 548

(2001) 6 SCC 1. 165

38737044 prahalad-saran-gupta-case-study

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