Memorial for Respondent (2)

8/4/2019 Memorial for Respondent (2)

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SUPREME COURT OF INDIA

2011

RAJAN & OTHERS

V.

BAR COUNCIL OF INDIA

MEMORIAL FOR RESPONDENT

Table of Contents

1. List of ABBREVIATIONS-------------------------------------------Page 3

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2. Index of AUTHORITIES---------------------------------------------Page 5

Books and Journals----------------------------------------------------Page 5

Websites and URLs-----------------------------------------------------Page 6

List of Statutes----------------------------------------------------------Page 6

List of Cases--------------------------------------------------------------Page 7

3. Statement of Jurisdiction----------------------------------------------Page 8

4. Questions Presented----------------------------------------------------Page 9

5. Statements of Facts-----------------------------------------------------Page 10

6. Summary of Pleading--------------------------------------------------Page 14

7. Pleadings/Arguments Advanced-------------------------------------Page 16

8. Prayer---------------------------------------------------------------------Page 27

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LIST OF ABBREVIATIONS

AIR All India Reporter

HC High Court

No. Number

SC Supreme Court

SCC Supreme Court Cases

V. Versus

Vol. Volume

Art. Article

Ed. Edition

Para. Paragraph

i.e. id est(that means)

ibid ibidium

L.P.A Legal Practitioners Act

A.A Advocate Act

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C.S.O.D Chief Secretary of Delhi

D.C District Court

Cr L J Criminal Law Journal

J T Judgment Today

B.C.I Bar Council of India

D.S.B.C Delhi State Bar Concil

u/s Under Section

Sec. Section

I.P.C Indain Penal Code

P.C.A,1988 Prevention Corruption Act,1988

WLR Weekly Law Report

VIPs Very Important Persons

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INDEX OF AUTHORITIES

BOOKS AND JOURNALS

1. Dr. Avtar Singh, The Principles of The Law OF Evidence , 17th Edition (2009), Central

Law Publishing

2. Prof. S,N Mishra, Indian Penal Code, 12th Edition(2004), Central Law Publishig

3. Sudipto Sarkar, V.R Manohar, law of Evidence, 17th Edititon(2010), lexis Nexis

Butterworths Wadhwa

4. Chief Justice M. Monir, The Law of Evidence, 18th Edition(2010)

5. K.I Vibhute, Criminal Law, 10th Edition(2008), Lexis Nexis Butterworths Wadhwa

6. Dr. S.P Gupta, Professinal Ethics, Accountacy for Lawyers & Bench-Bar Relations, 4th

Edition (2009) ,Central Law Publishing

7. K.D Gaur, The Indian Penal Code, 4thEdition(2004), Universal Law Publishing

8. J.J.R Upadhaya,Administrative Law, 6th Edition(2006), Universl Law Publishing

9. B.B Mitra, Codeof Criminal Procedure, 12th Edition(2003), Volume 1`

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10.P Ramanatha Aiyer, Legal & Professional Ethics(Legal Ethics, Duties & Privileges of a

Lawyer), 2ndReprint(2009), Lexis Nexis Butterworths Wadhwa

11. Judgement Today, 2011(8) 6

12. All India Repoter, Nov. 2008 Vol.95 Part 1139

Websites And URLs

1. WWW.denition.US Legal.com

2. WWW.indiankanoon.org

3. WWW.buffalo.edu/law

4. WWW.vakilno1.com

5. WWW.ilatonline.org/ judgement_SupremeCourt.ptp

6. WWW.manupatra.com

Statutes

1. Evidence Act, 1872

2. Advocate Act, 1961

3. Indian Penal Code, 1860

4. Criminal Procedure Code, 1973

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http://www.denition.us/http://www.indiankanoon.org/http://www.buffalo.edu/lawhttp://www.vakilno1.com/http://www.ilatonline.org/http://www.manupatra.com/http://www.denition.us/http://www.indiankanoon.org/http://www.buffalo.edu/lawhttp://www.vakilno1.com/http://www.ilatonline.org/http://www.manupatra.com/


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5. Legal Practitioners Act, 1879

6. Prevention of Corruption Act, 1947

7. Prevention of Corruption Act, 1988

LIST OF CASES

1. In the case of K.V. Narsingha Rao

2. In the case of Re Tulsidas Amanmal

3. In the case of Re M, n Advocate

4. In the case of Re A Solicitor ex parte the Law Society

5. Chandra Shekhar Soni v. Bar Council of Rajasthan

6. King Emperor v. Guru Prasad

7. Nathulal v. State of Madhya Pradesh

8. Sweet v. Parsley

9. State of Gujarat v. D. Parade

10. In the case of Ebrahim M.C. Md

11. Jeremiah v. Vas

12. In Ram Ch v. R

13. Harbhajan v. S

14. Sangappa v. Shivamurthiswami

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15.Narayan v.Radhagobinda

16.Nageshwarrao v. S

17. P.Pushpa Leela v. Bar Council of Andra Pradesh

18. In the case of Re Tulsidas Amarlal Karnanmi

STATEMENT OF JURISDICTION

To,

The Supreme Court of India,

IT IS MOST RESPECTFULLY SHOWETH-

1. It is most respectfully submitted to the Honble Court that this court has jurisdiction to hear

this appeal under Section 38 of The Advocates Act, 1961.

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Date: ( Counsel for Respondent )

QUESTIONS PRESENTED

1. Whether Rajan and Subhash are guilty of professional misconduct or not?

2. Whether Mens Rea is required to constitute the offence of professional misconduct

or not?

3. Whether any newspaper report can be relied upon for filing a petition or not?

4. Whether the judgement awarded by The Delhi State Bar Council and confirmed by

The Bar Council of India is sustainable or not?

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STATEMENT OF FACTS

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1. Rajan one of the members of the DelhiBar practicing at Patiala House was very

disturbed by the daily reports of

corruption in the judiciary.

2. Rajan decided to expose the problem ofcorruption in the judiciary .

3. To expose the said problem Rajanapproached Subhash who was his friendpracticing at Tis Hazari court.

4. Subhash told him that courts at TisHazari are also facing the same evil andstated that if one can afford to pay Rs

5000/- he can get arrest warrant against

any body.


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11.

Rajan was suspended from practice for 4

years while Subhash was suspended for 2years.

12. Delhi State Bar Council could not

complete the proceedings within theprescribed time by The Advocates Act,

1961 and accordingly the proceedings

were transferred to the Bar Council OfIndia.

13.

B.C.I. held Subhash and Rajan guilty of

professional misconduct.

14. Both Subhash and Rajan preferred appeal

before the Supreme Court of Indiaagainst the said judgement awarded by

B.C.I.

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SUMMARY OF PLEADINGS


The term, misconduct is sufficiently wide expression. It is not necessary that it shouldinvolve 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

by superior court or any of the courts subordinate thereto, may be considered to bemisconduct calling for disciplinary action. Therefore the appellants cannot defend

themselves by taking the plea that their act did not involve moral turpitude and hence are

guilty of professional misconduct.

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2. Whether Mens Rea is required to constitute the offence of professional misconduct

or not?

The necessity of mens rea has been dispensed with in respect of social or public welfare

legislations. All these laws have been enacted for the larger good of the society. Insistingupon the existence of mens rea to punish persons for violation of these enactments, may

frustrate the purpose of the Acts and the objects for which they have been enacted.15

Therefore a person cannot always escape his liability merely by saying that he did nothave a guilty mind when he committed the act. The offence of Bribery has been clearly

defined in many statutes and there is no other motive behind taking bribe other than

personal gain or benefit.

3.Whether any newspaper report can be relied upon for filing a petition or not?

The report of a speech even though not fully reported appearing in a newspaper can be

relied upon especially when the maker of the speech has admitted that the reporters

version does, more or less, tally with the views expressed by him in the meeting.

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4.Whether the judgment awarded by The Delhi State Bar Council and confirmed by

The Bar Council of India is sustainable or not?

It has always been the prerogative of the legislature to make laws, which includes

obviously the power to define what constitutes a crime. It can decide what are the

elements of a particular offence. In doing so, the legislature is well within its power to

legislate that in respect of a particular offence, the existence of mens rea is not anessential requirement. Therefore, the appellants cannot escape liability by taking the plea

that they did not have a guilty mind which is the requirement of mens rea.

PLEADINGS/ARGUMENTS ADVANCED


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1.1It is most humbly submitted to the Honble court that misconduct usually implies an act donewillfully with a wrong intention and as applied to professional people it includes

unprofessional acts even though such acts are not inherently wrongful . Sec. 13 ofLegalPractitioners Act, 1879,1 has classified misconduct of lawyers under six headings, namely:-

(a) Pleader who takes instructions in any case except from the party on whose behalf he isretained or some person who is recognized agent of such party, or some servant, relative or

friend authorized by the party to give such instructions.

(b) Pleader who is guilty of fraudulent or grossly improper conduct in the discharge of hisprofessional duty.

(c) Pleader who tenders or gives consent to the retention out of any fee paid or payable tohim for his services of any gratification for procuring or having procured the employment in

any legal business of himself or any other pleader.

(d) Pleader who directly or indirectly procures or attempts to procure the employment ofhimself or such pleader,ormukhtarthrough by the intervention, of any person to whom any

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

to be so given.

(e) Pleader who accepts any employment in any legal business through a person who has

been proclaimed as a tout under sec 36.

(f) Pleader who is guilty of any other reasonable cause.

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Since the appellants have committed a grossly improper conduct in the discharge of their

professional duty by getting arrest warrants issued through bribing the judicial officers

therefore they are guilty of the offence of professional misconduct.

___________________________

1. Legal Practitioners Act,1879

1.2 In the case ofK.V. Narsingha Rao,2it has been held that professional misconduct meansConduct which would reasonably be regarded as disgraceful or dishonourable by solicitors ofgood repute and competency. Mere negligence, even of serious nature, will not suffice. Since

the conduct of appellants is disgraceful and dishonourable as well therefore they are guilty of

the offence of professional misconduct.

1.3 In the case ofRe Tulsidas Amanmal,3 it has been held by Bombay H.C that the term,misconduct is 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 by superior court or any of thecourts subordinate thereto, may be considered to be misconduct calling for disciplinary action.

Therefore the appellants cannot defend themselves by taking the plea that their act did not

involve moral turpitude and hence are guilty of professional misconduct.

1.4 It is further submitted that inRe M, n Advocate,4the S.C has held that when dealing withthe cases of professional misconduct, the court is not concerned with the ordinary legal right,

but with the special and rigid rules of professional conduct expected of and applied to a

specially privileged class of persons who, because of their privileged status, are subject to

certain disabilities which do not attach even to them in non professional character. He is boundto conduct himself in a manner befitting the high and honourable profession to whose privileges

he has so long been admitted.

In our case the appellants were also expected to follow the rigid and special rules of

professional conduct but they did not. Moreover they were subject to certain disabilities becauseof their privileged status which do not attach to them in non professional character. They werebound to conduct themselves in a manner befitting the high and honourable profession to whose

privileges they have so long been admitted. Therefore they are guilty of professional

misconduct.

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1.5 In Re A Solicitor ex parte the Law Society,5 the Kings Bench had defined the term,professional misconduct as follows;

If it is shown that an advocate in pursuit of his profession has done something with

_______________________

2. AIR 1959 AP.593.3. AIR 1941 Bombay 228.

4. AIR 1957 SC 250.

5. (1912) 1 KB 302.

regard to it, which would be reasonably regarded as disgraceful or dishonourable by his

professional brethern of good repute and competency, then it is open to say that he is guiltyof professional misconduct.

Since the conduct of appellants is disgraceful and dishonourable which has brought disrepute

to their legal profession therefore they are guilty of the offence of professionalmisconduct.Moreover they are not competent to misuse their powers provided to them by

their profession.

1.6 In Chandra Shekhar Soni v. BarCouncil of Rajasthan,6 the S.C has held that offering of

bribe or giving bribe or taking money from the client for the purpose of giving bribe to thejudge, amounts to professional misconduct of a lawyer.

In our case Rajan as a client offered a bribe of Rs.5000 to Subhash for getting issued arrestwarrant against the Chief Secretary of Delhi. On the other hand, Subhash who was apracticing lawyer took a sum of Rs.5000 as bribe from Raman for getting issued the above

mentioned arrest warrant misusing his profession. The above stated case clearly supports our

argument and clearly states that Subhash has anyhow misused his privileged status and hasmanaged to get the arrest warrant issued.

1.7 It is further submitted to the Honble Court that in the matter ofP,7 the S.C has held that an

advocate may be punished not only when he is guilty of professional misconduct but also if

he is guilty of another misconduct which may not be directly concerned with the professional

activity as such, may nevertheless be of such dishonourable or infamous character as to invitethe punishment due to professional misconduct.

Explanation to the above argument is that, even if Subhash tries to take the plea that he didnot receive any kind of gratification from Rajan to forward it to any of the judicial officers to

get the arrest warrant issued but he cannot deny the fact that he took an amount of Rs.5000

from Rajan for the purpose of getting the arrest warrant issued. Further if he did not givebribe to any of the judicial officers then how did he manage to get the arrest warrant issued

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which was even being blank in coloumns duly stamped and signed by four different judicial

officers of District Court. This means that both the appellants were either directly or

indirectly involved in the offence of bribery and as such they are liable to be held guilty ofprofessional misconduct. From the above discussed case it can be concluded that they have

abused the professional ethics of a lawyer and disciplinary action against both of them is

sustainable

__________________________6. AIR 1983 SC 1012.

7. AIR 1963 SC 1313.

1.8In King Emperor v. Guru Prasad,8 Patna H.C has observed that it is the duty of the court

not only to protect the members of the public against disreputable members of the profession,but it is also ones duty to protect the profession itself against the loss of reputation brought

upon it by the conduct of such members.

Proper professional conduct is not a mere matter of compliance with technical rules. It is one

of which everyone who aspires to be called a gentleman should have an instinctive

appreciation.9

Taking disciplinary operation against a pleader is based upon the principle that the court

deems him unworthy of its confidence and unfit for his place. It is not by way of

punishment.10

In our case the appellants Raman and Subhash have done such an act which has bring

disrepute to their legal profession and therefore they are absolutely liable to be held guilty ofprofessional misconduct.

1.9 According to one of the rules of The State Bar Council Rules Misconduct itself is a

sufficiently wide expression; it is not necessary or instance that it should involve moralturpitude. The court has a right to expect a higher standard of loyalty to the court under co-

operation from those who practice profession of law. Any conduct which in any way renders

a man unfit for the exercise of his profession or is or any of the courts subordinate thereto

may be considered to be misconduct calling for disciplinary action.11

The above argument leaves no doubt regarding the necessity of moral turpitude for

constituting the offence of professional misconduct. It makes it clear that involvement ofmoral turpitude is not necessary to constitute the offence of professional misconduct. It is

also clear that the court expects a higher standard of loyalty to the court under co-operationfrom those who practice the profession of law. The appellants did not show loyalty towardsthe court as well as their profession and therefore they cannot escape liability on the ground

of absence of moral turpitude.

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8. AIR 1934 Patna 142.

9. S.P.A. Pleader, AIR 1934 Patna 352.

10. Re G. Pleader, AIR 1933 Sind 65.

11. In re, Tulsidas Amarlal Karnanmi, AIR 1941 Bom 228: ILR 1941 Bom 548: 1951 C

359: 43 Bom LR 250: 42 Cr Lj 723.

1.10 It has been mentioned in the S.B.C.R. that professional misconduct authorizing suspension

or disbarment is not confined to misconduct in the attorneys relation to his client, but includes

as well misconduct towards the court or a judge in or out of court. 12

so is the deliberate disobedience of a mandate or order of court. 13

All the above arguments supports the fact that both the appellants namely Rajan and Subhash

are guilty of the offence of professional misconduct.

2. Whether Mens Rea is required to constitute the offence of professional misconduct or

not?

2.1 It is most respectfully submitted to the Honble Court that mens rea as an essential element

or ingredient of crime, though an universally accepted principle, is not without limitations. Inthe last few decades, an entire range of social or public welfare legislation have been conceived

in such a manner that the law makes the mere omission or commission of acts punishable. In

other words, no mens rea or legal fault is required for imposing criminal liability.14

2.2 The necessity of mens rea has been dispensed with in respect of social or public welfarelegislations. All these laws have been enacted for the larger good of the society. Insisting upon

the existence of mens rea to punish persons for violation of these enactments, may frustrate the

purpose of the Acts and the objects for which they have been enacted.15 Therefore a personcannot always escape his liability merely by saying that he did not have a guilty mind when he

committed the act. The offence of Bribery has been clearly defined in many statutes and there is

no other motive behind taking bribe other than personal gain or benefit.

____________________________

12. U.s.-In re, Ades, (D.C Md.) 6 F. Supp. 467. Ala.-In re, Mitchell, 71 So. 467, 196 ala.

430: 6 CJ, p.594, note 89.

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13. In re, Gluck, 243 NYS 334: 229 App div 490: re, Reinhardi, 162 NYS 524: 175 App div

843.

14. KL Vibhute, Criminal Law,2008 Edition, p.69.

15. Ibid, p. 71, para 1.

2.3 Moreover I.P.C deals with traditional common law offences that deal with offences against

the person, property, state and public morals. All these offences consist of specific acts ofaggression that have been recognized as crimes per se or mala in se. But these public welfare

offences are creations of the statutes. The purpose of these acts is regulatory. Imposing liability

is merely a mode of enforcing the regulations.16

2.4 Courts have also justified the non-requirement of mens rea on the grounds that many of these

Acts impose only payment of fines as punishment or even if imprisonment is provided, very

rarely do courts award it. Moreover, the conviction for committing those public welfare offences

does not attach to itself the same kind of social stigma and damage to reputation that forexample, a conviction under I.P.C. would attract.17

2.5 It is further submitted that it has always been the prerogative of the legislature to make laws,

which includes obviously the power to define what constitutes a crime. It can decide what are theelements of a particular offence. In doing so, the legislature is well within its power to legislate

that in respect of a particular offence, the existence of mens rea is not an essential requirement.18

2.6 In most of the public welfare statutes, nowhere is it stated that mens rea is an essential

element of the offence concerned. Nor is it stated that mens rea is an essential ingredient ofcrime. This silence has left the field wide open for judicial interpretations. So, the creation of

judge made law has not been without its share of confusion and contradictions. 19

2.7 It is further submitted that courts have held that mens rea, as an essential element of crime, is

so much an integral part of the definition of crime itself that it needs no specific mention. A courthas to presume its requirement for imposing criminal liability, unless a statute,

_____________________________

16. KL Vibhute, Criminal Law,2008 Edition, p. 71.

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17. Ibid, para 3.

18. Ibid, para 5.

19. Ibid, para 6

expressly or by necessary implication, excludes mens rea. Its exclusion cannot be inferred

simply because a statute intends to combat a grave social evil or to attain socio-economic

welfare.20

2.8 In Nathulal v. State of MadhyaPradesh,21 S.C held that:

Mens Rea is an essential element of a criminal offence. .. [U]nless the statute expressly or bynecessary implication excluded mens rea. The mere fact that the object of the statute is to

promote welfare activities or to eradicate a grave social evil is by itself not decisive of the

question whether the element of guilty mind is excluded from the ingredients of an offence.Mens rea by necessary implication may be excluded from a statute only where it is absolutelyclear that the implementation of the object of the statute would otherwise be defeated.

2.9 In the case ofSweet v. Parsley,22 it was observed that where an offence is created by some

statute, the language of the statute should be read with this rebuttable presumption that thecommon law doctrine that there can be no crime without mens rea, has not been dispensed with

by the statute concerned.

2.10 In the case ofState of Gujarat v. D. Parade,23 it has been held that where an offence is

created by statute, however comprehensive and unqualified the language of the statute, it isusually understood as silently requiring that the element ofmens rea should be imported into the

definition of crime unless a contrary intention is expressed or implied.

Therefore all the above arguments show that the appellants Rajan and Subhash connot defend

themselves against the charge of professional misconduct by showing the absence ofmens rea in

offence committed by them.

___________________________

20. Ibid, para 7.

21. AIR 1966 SC 43, para 4.

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22. (1969) 2 W.L.R. 470 (H.L.).

23. 1971 Cri. L.J. 760 at p. 762

3. Whether any newspaper report can be relied upon for filing a petition or not?

3.1 It is most humbly submitted to the Honble Court that inEbrahim M.C. Md,24 it has beenheld by the Honble S.C that the report of a speech even though not fully reported appearing in

a newspaper can be relied upon especially when the maker of the speech has admitted that the

reporters version does, more or less, tally with the views expressed by him in the meeting.

In our case the appellants Rajan and Subhash themselves admitted in the newspaper report that

they have managed to get the arrest warrants issued by bribing the judicial officers whichamounts to their admission and therefore newspaper reports can be relied upon as evidence for

filing petition against them.

3.2Section 81 of Evidence Act, 1872 says that the court shall presume the genuineness of any

document purporting to be the London Gazette or25[any Official Gazette, or the GovernmentGazette] of any colony, dependency or possession of the British Crown, or to be a newspaper

or journal, or to be copy of private Act of Parliament26[ of the United Kingdom] printed by the

Queens Printer, and of every document purporting to be a document directed by any law to bekept by any person, if such document is kept substantially in the form required by law and is

produced by proper custody.

In Jeremiah v. Vas,27 it was held that if a news was printed and published by the person by

whom it purports to be cannot come under the presumption of Sec. 81 of Evidence Act, 1872.

In the present case the appellants themselves approached the press for publishing a newspaperreport for highlighting all the events along with the arrest warrants. Therefore it is a sufficient

evidence and as such the reports published in the newspaper can be relied upon. Accordingly,

the petition filed by Krishan against the appellants in the Delhi State Bar Council ismaintainable.

3.3In Ram Ch v. R,28 it has been held that whether or not any newspaper report can be relied

upon as on evidence depends upon the genuine-ness of the specimen of newspaper.

In our case there is no question as to the genuine-ness of the specimen of newspaper because the

newspaper reports on which Krishan has relied were published by the appellants

__________________________

24. A 1980 SC 354.

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25. Substituted by AO 1937.

26. Inserted in India by AO 1950 and in Pakistan by Ord 1 of 1961.

27. 36 M 457 : 12 IC 961 : 2 MWN 576.

28. A 1930 L 371.

themselves.

3.4 In the cases of Harbhajan v. S,29 Sangappa v. Shivamurthiswami,30 Narayan v.Radhagobinda,31 Nageshwarrao v. S,32 it has been held that the statement of a fact in a

newspaper is merely hearsay and is inadmissible in the absence of the maker of the statement

deposing to have perceived the fact reported. But if the maker of the statement is present andpersonally admits to it then the above presumption is rebutted.

In the case before the court the makers of the statement namely Rajan and Subhash are presentand are giving assent to the publication made by them in the newspaper.

All the above arguments are supported by a number of cases which proves that the newspaper

report published by the appellants in The Hindustan Times and The times of India can be reliedupon and therefore the petition against the appellants filed by Krishan in Delhi State Bar Council

is absolutely maintainable.

4. Whether the judgement awarded by The Delhi State Bar Council and confirmed by The

Bar Council of India is sustainable or not?

4.1 It is most humbly submitted to the Honble Court that according to Section 35 of TheAdvocate Act,1961:

(1) Where on receipt of a complaint or otherwise a State Bar Council has reason to believe thatany advocate on 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 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 ofthat State Bar Council]

__________________________

29. A 1961 Pu 215.

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30. A 1961 My 106.

31. A 1971 C 53.

32. A 1959 SC 1376.

(2) The disciplinary committee of a State Bar Council [***]33

shall fix a date for the hearing ofthe 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 proccedings were initiated at the instance at 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 practicing 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 personor through any advocate appearing on his behalf.

In our case, firstly complaint was received by Delhi Bar State Council which was made byKrishnan. Secondly D.B.S.C had a reason to believe that the appellants were guilty of

professional misconduct because the newspaper report whose publication was made by the

appellants read that warrants were issued by bribing the judicial officers.

Accordingly, the Disciplinary Committee is empowered to suspend the appellants under sec

[35(3)(c)] of Advocates Act, 1961.

4.2 According to sub-section (1-A) of section 35 of the Advocate Act, 1961, the State Bar

Council may, either of its own accord or on the application of a third person, initiateproceedings in the matter of misconduct of the advocates on its roll,33. In this way, it is clear that

Bar Council may initiate cases of misconduct of an advocate suo motu,34.

The third person mentioned in the above statement is not specifically defined. Therefore, it may

be any person and as such Krishan falls under this category. Accordingly, the petition filed by

him in the D.S.B.C against the appellants is maintainable.

_____________________________

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33. The words , if it does not summarily reject the complaint, omitted by Act 60 of 1973,

Sec. 24, (w.e.f. 31-1-1974).

34. P.Pushpa Leela v. Bar Council of Andra Pradesh, AIR 1999 A.P.88.

4.3 It is further submitted that it has always been the prerogative of the legislature to make laws,

which includes obviously the power to define what constitutes a crime. It can decide what arethe elements of a particular offence. In doing so, the legislature is well within its power to

legislate that in respect of a particular offence, the existence of mens rea is not an essentialrequirement,35

Therefore, the appellants cannot escape liability by taking the plea that they did not have a

guilty mind which is the requirement of mens rea.

4.4 Misconduct itself is a sufficiently wide expression; it is not necessary or instance that it

should involve moral turpitude. The court has a right to expect a higher standard of loyalty to

the court under co-operation from those who practice profession of law. Any conduct which inany way renders a man unfit for the exercise of his profession or is or any of the courts

subordinate thereto may be considered to be misconduct calling for disciplinary action,36

Therefore, even if the appellants take the defence of absence of moral turpitude in their act theycannot escape liability.

4.5 Further it is submitted that if Subhash defends himself by stating that he has taken an

amount of Rs.5000/- from Rajan as his fee then this statement is not justifiable because if he hadnot taken the said amount as a bribe and had not forwarded it to the judicial officers with an

intent to get the arrest warrants issued then why would the four different judicial officers of the

District Court who signed the arrest warrants do that?

The above argument clearly proves that both Rajan and Subhash are guilty of the offence of

bribery on the account of which they are held liable of professional misconduct.

Further it is concluded that the judgment awarded by the D.S.B.C against the appellants and

confirmed by the B.C.I is sustainable.

____________________________

35. KL Vibhute, Criminal Law,2008 Edition, p. 71.

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36. In re, Tulsidas Amarlal Karnanmi, AIR 1941 Bom 228: ILR 1941 Bom 548: 1951 C

359: 43 Bom LR 250: 42 Cr Lj 723.

PRAYER

In the light of the issues raised and the arguments advanced, the Appellant prays the Honble

Court:

1. To dismiss the appeal of Rajan and Subhash with cost.

2. To affirm the punishment awarded by D.S.B.C. and confirmed by B.C.I.

Date: (Counsel on behalf of the Respondent)

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Memorial for Respondent (2)

Documents

Transcript of Memorial for Respondent (2)