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Thursday, April 6, 2017

whether after transfer of a disciplinary proceeding, as per the mandate enshrined under Section 36B(1) of the Advocates Act, 1961 (for brevity, “the Act”) to the Bar Council of India (BCI) from the State Bar Council, can the BCI, instead of enquiring into the complaint and adjudicating thereon, send it back to the State Bar Council with the direction to decide the controversy within a stipulated time. = Once a complaint is made by a litigant, it has to follow a definite procedure and is required to be dealt with as per the command of the Act to conclude the disciplinary proceeding within a period of one year from the date of receipt of the complaint or the date of initiation of the proceedings at the instance of the State Bar Council. On many an occasion, it has come to the notice of this Court that disciplinary authority of the State Bar Council is not disposing of the complaint within the stipulated period, as a consequence of which the proceeding stands transferred to the BCI. The responsibility to deal with the disciplinary proceedings is cast on the State Bar Council which constitutes its disciplinary committee. Every member of the Disciplinary Committee is aware that the proceeding has to be concluded within one year. The complainant and the delinquent advocate are required to cooperate. Not to do something what one is required to do, tantamount to irresponsibility and the prestige of an institution or a statutory body inheres in carrying out the responsibility. One may not be always right in the decision but that does not mean to be shirking away from taking a decision and allow the matter to be transferred by operation of law to the BCI. A statutory authority is obliged to constantly remind itself that the mandate of the statute is expediency and the stipulation of time is mandatory. It will not be erroneous to say that the Disciplinary Committee is expected to perform its duty within a time frame and not to create a blameworthy situation. It is better to remember offering an explanation to one’s own conscience is like blaming everything on “accident”. When duties are given by law, duties are required to be performed. In view of the aforesaid, we allow the appeal, set aside the order passed by the Disciplinary Committee of the BCI and remand the matter to the Disciplinary Committee of the BCI to decide the same in accordance with law within a period of three months from the date of receipt of copy of this judgment. Registry is directed to send a copy of this judgment to all the Secretaries of each of the State Bar Council, who in turn can apprise the members of the State Bar Council so that appropriate steps are taken. There shall be no order as to costs.

                                 REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 8307 OF 2015



Ajitsinh Arjunsinh Gohil                ...   Appellant(s)

                                   Versus

Bar Council of Gujarat and Anr.              ...  Respondent(s)




                               J U D G M E N T


Dipak Misra, J.


      The singular issue that is required to be addressed in this appeal  is
whether after transfer of a disciplinary  proceeding,  as  per  the  mandate
enshrined under Section 36B(1) of the  Advocates  Act,  1961  (for  brevity,
“the Act”) to the Bar Council of India (BCI) from  the  State  Bar  Council,
can the BCI, instead  of  enquiring  into  the  complaint  and  adjudicating
thereon, send it back to the State Bar Council with the direction to  decide
the controversy within a stipulated time.  It is interesting  to  note  that
Mr. Preet Pal Singh, the learned counsel for  BCI  would  concede  that  the
said statutory authority has no such power. Mr. D.N.  Ray,  learned  counsel
appearing for the Gujarat State Bar Council  would  propound  with  all  the
thrust at his command that BCI has unfettered jurisdiction to pass  such  an
order inasmuch as it is the  apex  statutory  body  under  the  Act  and  it
possesses plenary powers and, in any case, the  language  of  the  statutory
provision does not create any impediment  for  the  same.  Mr.  Anup  Kumar,
learned counsel  for  the  appellant,  as  is  expected,  concurs  with  the
proponement of Mr. Singh and further  submits  that  the  time  consumed  in
disposal of the disciplinary authority has put the appellant in a  situation
of misery and, therefore, this Court should  quash  the  initiation  of  the
disciplinary proceedings so that efflux of time can  give  the  appellant  a
healing touch and put an end to the agony he has already endured.
2.    In such a situation, thinking it apposite,  the  Court  appointed  Mr.
M.L. Lahoty, learned counsel, as the friend  of  the  Court,  who  submitted
with immense assurance that  acceptance  of  the  stand  of  the  State  Bar
Council would  not  only  run  counter  to  the  language  employed  by  the
legislature but shall cause immense violence to the same  and  the  duty  of
this Court is to give full meaning to the legislative intendment.
3.    We may, in brief, state the factual  score.  The  appellant,  who  was
enrolled as an Advocate with the Bar Council of Gujarat, got elected to  the
post of Secretary of Gandhinagar Bar Association in  2007  and  subsequently
he was elected as the  President  of  the  Bar  Association  in  2008.   One
                          Mr. P.D. Kanani, who was the Secretary of the  Bar
Association due to differences leveled false  allegations  and  filed  false
civil and criminal cases against the  appellant  and  also  wrote  a  letter
dated 04.09.2008 in this regard to the Secretary,  Bar  Council  of  Gujarat
alleging that he was denied access to certain records and the  accounts  and
there was misappropriation of huge  amount  of  the  Bar  Association.   The
differences and the misunderstanding between  the  appellant  and  Mr.  P.D.
Kanani was resolved and a settlement was arrived at between the  parties  on
18.09.2008 and the book of accounts and other records were  handed  over  by
the appellant to Mr. Kanani.
4.     When everything appeared to have been put to rest,  after  expiry  of
one year and three months, Bar Council of Gujarat vide its  B.C.  Resolution
No. 176 of 2009 dated 06.12.2009 resolved to call for  an  explanation  from
the appellant with regard to complaint preferred  by  Mr.  P.D.  Kanani  and
further putting forth an allegation that it  had  received  a  letter  dated
01.06.2010 from the Registrar, High Court  of  Gujarat  regarding  complaint
against the appellant.   On  the  basis  of  letter  dated  01.06.2010,  Bar
Council of Gujarat took  suo  motu  cognizance  against  the  appellant  and
referred the matter  to  Disciplinary  Committee  III.   The  complaint  was
registered as DC Case No. 25/2010.
5.    It is worthy to note that  the  Bar  Council  of  Gujarat  decided  to
conduct trial of D.C. case No. 25/2010 along  with  D.C.  Case  No.  15/2010
before the Disciplinary Committee No. I.  The  case  of  the  appellant  was
again  transferred  to  Disciplinary  Committee  No.  XII   and   again   to
Disciplinary Committee No. IX.
6.    As the factual matrix would depict,  the  appellant,  upon  filing  of
application, was granted time to file  his  written  arguments  but  without
waiting for the reply of the appellant, the Bar Council of Gujarat vide  its
order dated 17.05.2011 decided D.C. Case No. 15/2010 against  the  appellant
and directed removal of the name of the appellant from roll of  Bar  Council
of Gujarat and imposed costs of Rs.50,000/-.  However, as no order could  be
passed in D.C. Case No. 25/2010 during the statutory  period,  subsequently,
the Disciplinary Committee of the Bar Council of Gujarat vide  letter  dated
24.08.2011, transferred the D.C. Case No.  25/2010  to  the  BCI  which  was
registered as BCI Tr. Case No. 197/2011.
7.    The appellant contended before the Disciplinary Committee of  the  BCI
that there was no such letter dated 01.06.2010 purported to  be  written  by
the Registrar (Inspection), High Court of Gujarat  on  the  basis  of  which
cognizance against appellant had been  taken.  The  Disciplinary  Committee,
after hearing the  appellant,  vide  order  dated  20.06.2015  remanded  the
matter to the Bar Council of Gujarat with a  direction  to  dispose  of  the
case within a period of one  year.    Being  aggrieved,  the  appellant  has
filed the present appeal.
8.    As  indicated  earlier,  Mr.  Anup  Kumar,  learned  counsel  for  the
appellant submitted that the Disciplinary Committee of  the  BCI  could  not
have remanded the matter to the Disciplinary Committee of  the  Bar  Council
of Gujarat as  the  same  is  not  permissible  in  a  case  that  has  been
transferred to the BCI by operation of law under Section 36B(1) of the  Act.

9.    Mr. Ray, learned counsel for the respondent No. 1, in his turn,  would
contend that if the language employed in Section 36B(1)  and  Section  36(2)
are read in juxtaposition, it is abundantly clear that  the  power  to  deal
with the proceedings upon transfer by the BCI is different, for the  statute
confers plenary power on the BCI and such plenary powers in  its  ambit  and
sweep would include the power to remand.  He would emphasise  on  the  words
“may dispose of the same as if it were a proceeding  withdrawn  for  inquiry
under sub-section (2) of section 36” and on that  basis  propound  that  the
said words confer wi8de jurisdiction on the BCI  and  do  not  restrict  its
jurisdiction only to decide the matter.

10.   To  appreciate  the  rival  submissions  raised  at  the  Bar,  it  is
necessary to keenly scrutinize various provisions of the Act and  the  rules
framed by the BCI.  Prior to that, it has to be kept in mind  that  the  Act
was brought into force to amend and consolidate the law  relating  to  legal
practitioners and to provide for the constitution of  Bar  Councils  and  an
All-India Bar.  The statement of objects and reasons of  the  Act  describes
the main features, which are as follows:-
“The main features of the Bill are, -

1. The establishment of an All India  Bar  Council  and  a  common  roll  of
advocates, and advocate on the common roll having a  right  to  practice  in
any part of the country and in any Court, including the Supreme Court;

2. The integration of the bar into a single  class  of  legal  practitioners
know as advocates;

3.  The prescription  of  a  uniform  qualification  for  the  admission  of
persons to be advocates;

4.  The division of advocates into  senior  advocates  and  other  advocates
based on merit;

5.  The creation of autonomous Bar Councils, one for the whole of India  and
on for each State.

Following the recommendations of the All India Bar  Committee  and  the  Law
Commission, the Bill recognized the continued existence of the system  known
as the dual system now prevailing in the High Court of Calcutta and  Bombay,
by making suitable provisions in that behalf: It would, however, be open  to
t he two High Courts, if they so desire, to discontinue this system  at  any
time.

The Bill, being a comprehensive measure,  repeals  the  Indian  Bar  Council
Act, 1926, and all other laws on the subject.”

11.   Section 2(e) defines “Bar Council of India” as follows:-
“Bar Council of India” means the Bar Council  constituted  under  Section  4
for the territories to which this Act extends.”

12.   Section 3 deals with State Bar  Councils.   Section  4  provides  that
there shall be Bar Council for the territories to which this Act extends  to
be known as the Bar Council  of  India  and  stipulates  who  shall  be  the
members of the said Bar Council.  Section 6 enumerates the functions of  the
State Bar Councils.  Section 6(1)(c) empowers  the  State  Bar  Councils  to
entertain and determine cases of misconduct against advocates on  its  roll.
Section 7 engrafts the functions of the Bar Council  of  India.   Section  9
deals with the Disciplinary Committees. The said  provisions  is  reproduced
below:-

“Section 9. Disciplinary Committees. –

(1) A Bar Council shall constitute  one  or  more  disciplinary  committees,
each of which shall consist of three persons of whom two shall be  a  person
co-opted by the Council from amongst its members and the other  shall  be  a
person co-opted by the  Council  from  amongst  advocates  who  possess  the
qualifications specified in the proviso to sub-section (2) of Section 3  and
who are not members of the Council, and the senior-  most  advocate  amongst
the members of a disciplinary committee shall be the Chairman thereof.

(2) Notwithstanding anything contained in sub-section (1), any  disciplinary
committee constituted prior to the commencement of the Advocates  (Amendment
) Act, 1964, (21 of 1964) may dispose of the proceeding  pending  before  it
as if this section had not been amended by the said Act.”

13.   Chapter V contains the heading “Conduct  of  Advocates”.   Section  35
deals with punishment of advocates for misconduct.  Section 35(1) lays  down
that where on receipt of a complaint or otherwise a State  Bar  Council  has
reason to believe  that  any  advocate  on  its  roll  has  been  guilty  of
misconduct, it shall  refer  the  case  for  disposal  to  its  disciplinary
committee.  Section 35(1A) empowers the State Bar Council to may  either  of
its own motion or on application  made  to  it  by  any  person  interested,
withdraw a proceeding pending before its disciplinary committee  and  direct
the inquiry to be made by any other disciplinary  committee  of  that  State
Bar Council.  Sub-section (3) of Section 35 provides for  nature  of  orders
to be passed by the disciplinary committee of  a  State  Bar  Council.   The
said provisions reads as follows:-
“Section 35(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:-

dismiss the complaint or,  where  the  proceedings  were  initiated  at  the
instance of the State Bar Council, direct that the proceedings be filed;

reprimand the advocate;

suspend the advocate from practice for such period as it may deem fit;

remove the name of the advocate from the State roll of advocates.”

14.   Section 36 deals with  the  disciplinary  powers  of  Bar  Council  of
India.  The said provision is as follows:-

“Section 36. Disciplinary powers of Bar Council of India-


(1) Where on receipt of a complaint or otherwise the Bar  Council  of  India
has reason to believe that any advocate whose name is  not  entered  on  any
State roll has been guilty of professional or other misconduct, it shall  be
refer the case for disposal to its disciplinary committee.


(2) Notwithstanding anything contained in  this  Chapter,  the  disciplinary
committee of the Bar Council of India may either of its own motion or  on  a
report by any State Bar Council or an application made to it by  any  person
interested,  withdraw  for  inquiry  before  itself  any   proceedings   for
disciplinary action against any advocate  pending  before  the  disciplinary
committee of any State Bar Council and dispose of the same.


(3) The disciplinary committee of the Bar Council of India disposing of  any
case under this section, shall observe, so far  as  may  be,  the  procedure
laid down in Section 35, the references  to  the  Advocate-General  in  that
section being construed as references to the Attorney-General of India.


(4) In disposing of any proceedings  under  this  section  the  disciplinary
committee of the  Bar  Council  of  India  may  make  any  order  which  the
disciplinary committee of a State Bar Council  can  make  under  sub-section
(3) of section, 35  and  where  any  proceedings  have  been  withdrawn  for
inquiry before the disciplinary committee of the Bar Council of  India]  the
State Bar Council concerned shall give effect to any such order.”


15.   Section 36B that has come into force w.e.f.  31.01.1974  provides  for
disposal of disciplinary proceedings.   The  said  provision  is  reproduced
hereinbelow:-


“Section 36B. Disposal of disciplinary proceedings-

(1) The disciplinary committee of a State Bar Council shall dispose  of  the
complaint received by it under Section 35 expeditiously  and  in  each  cash
the proceedings shall be concluded within a period  of  one  year  from  the
date of the receipt of the complaint  or  the  date  of  initiation  of  the
proceedings at the instance of the State Bar Council, as the  case  may  be,
failing which such proceedings shall stand transferred to  the  Bar  Council
of India which may dispose of the same as if it were a proceeding  withdrawn
for inquiry under sub section (2) of section 36.

(2) Notwithstanding anything contained in  sub  section  (1)  where  on  the
commencement of the Advocates (Amendment)  Act,  1973,  any  proceedings  in
respect of any disciplinary matter against an  advocate  is  pending  before
the disciplinary  committee  of  a  State  Bar  Council,  that  disciplinary
committee of the State Bar Council  shall  dispose  of  the  same  within  a
period of six months from the date of such complaint, or, as  the  case  may
be, the date of initiation of the proceedings at the instance of  the  State
Bar Council, whichever is later, failing which such other  proceeding  shall
stand transferred to the Bar  Council  of  India  for  disposal  under  sub-
section.”

16.   Relying on the said provision, it is urged by learned counsel for  the
appellant that if any disciplinary proceeding against a delinquent  advocate
initiated under Section 35 of the Act is not concluded within  a  period  of
one year, by operation of law, the same stands transferred to  BCI  and  BCI
is authorized to dispose of the same as if it were  a  proceeding  withdrawn
for inquiry under sub-section (2) of Section 36 of the Act  and,  therefore,
the State Bar Council ceases to have jurisdiction.  Emphasis has  also  been
laid on the language employed in sub-section (2) of  Section  36  that   the
BCI has the authority either of its own or on a  report  by  any  State  Bar
Council or an application made to it by the Disciplinary  Committee  of  the
person interested to withdraw for enquiry before itself any  proceeding  for
disciplinary action against the advocate.  Stress is laid  on  the  language
used in sub-section (4) of Section 36 to  highlight  that  the  Disciplinary
Authority of the BCI is entitled to make  an  order  that  the  Disciplinary
Committee of a State Bar Council can make under sub-section (3)  of  Section
35 and further where any proceeding has been withdrawn  for  inquiry  before
the Disciplinary Committee of the  BCI,  the  State  Bar  Council  concerned
shall give effect to any such order.
17.   Learned counsel would further urge that if the  interpretation  sought
to be placed by the appellant is accepted, the  BCI  would  be  overburdened
with original proceedings from various State Bar Councils and  the  mischief
sought to be corrected under Section  36B(1)  of  the  Act,  namely,  timely
disposal of the complaint, would defeat the statutory purpose.
18.   Learned Amicus Curiae submits that  once  a  case  is  transferred  by
operation of law, it is obligatory on its part to decide  the  same  on  its
merits, for the language employed  under  sub-section  (1)  of  Section  36B
encapsulates two concepts, namely, (i) transfer of  proceedings  on  failure
to conclude the same within one year, and (ii) the BCI is to dispose of  the
same as if it were the proceedings withdrawn for enquiry  under  sub-section
(2) of Section 36.  Elaborating further, he  would  urge  that  there  is  a
transfer by operation of law and the disposal has to be done as if it  is  a
proceeding withdrawn for  enquiry  under  sub-section  (2)  of  Section  36.
According to  learned  counsel,  once  by  operation  of  law  the  case  is
transferred, it has to be disposed of by the BCI and the manner of  disposal
will not confer jurisdiction on it to send back the case to  the  State  Bar
Council.
19.   In this context, it is appropriate to refer to Section 37 of  the  Act
that provides for  appeal  to  the  BCI.   It  stipulates  that  any  person
aggrieved by an order passed by the Disciplinary Committee of  a  State  Bar
Council may prefer an appeal to the BCI  within  60  days  of  the  date  of
communication of the order to him and further such appeal shall be heard  by
the Disciplinary Committee of the  BCI  which  may  pass  such  other  order
including the order varying  the  punishment  awarded  by  the  Disciplinary
Committee of the State Bar Council as it deems fit.
20.   Section 42 of the Act that deals with the power  of  the  Disciplinary
Committee.  The Disciplinary Committee of a Bar Council has the same  powers
as are vested in a civil court under the Code of Civil Procedure in  respect
of certain matters that pertain to enquiry.  It has been highlighted by  the
learned counsel for the respondent No. 1 that  all  proceedings  before  the
Disciplinary Committee of the Bar Council shall be  deemed  to  be  judicial
proceeding within the meaning of Sections 193 and 228 of  the  Indian  Penal
Code, 1860 and every such Disciplinary Committee shall be  deemed  to  be  a
civil court for the purposes of Sections 480, 482 and 485  of  the  Code  of
Criminal Procedure.  Learned counsel has drawn our attention to  sub-section
(3) of Section 42 which reads as follows:-
“For the purposes of exercising any of the powers conferred  by  sub-section
(1),  a  disciplinary  committee  may  send  to  any  civil  court  in   the
territories to which this Act extends, any summons  or  other  process,  for
the attendance of a witness or the production of a document required by  the
committee or any commission which it desires to issue, and the  civil  court
shall cause such process to be served or such commission to  be  issued,  as
the case may be, and may enforce any such process as if it  were  a  process
for attendance or production before itself.”

21.   Relying on the  said  provisions,  it  is  contended  by  the  learned
counsel for the 1st respondent that the BCI has plenary powers  to  pass  an
order as it feels appropriate and in certain cases of statutory transfer  or
transferred by operation of law, is not remanded, there  would  be  enormous
practical difficulties and injustice is likely to be  caused  and  sometimes
due to delinquent advocate.  In  essence,  the  submission  of  the  learned
counsel for the said respondent is that after transfer of inquiry,  the  BCI
is not mandatorily commanded by law to complete  the  enquiry  and  pass  an
order as provided under Section  35(3)  of  the  Act.   He  has  also  drawn
inspiration from Section 49 that confers power on the  BCI  for  discharging
the functions under the Act.  It is urged by him that  Rule  18(5)  of  Part
VII of the Bar Council of India contemplates  an  order  of  remand  if  the
language used is properly appreciated.  Rule 18(5) reads as follows:-
“Rule 18(5). On a consideration of the report of  a  State  Bar  Council  or
otherwise the Disciplinary Committee of the Bar Council of India shall  pass
such orders as it considers proper.”

22.   Thus, the question, as posed  earlier,  fundamentally  centres  around
the jurisdiction of the BCI.  As is discernible from the  language  employed
in Section 36B(1), the transfer takes place by operation of  law.  There  is
a further command to BCI to dispose it  off  as  if  it  were  a  proceeding
withdrawn for enquiry under  sub-section  (2)  of  Section  36.   Thus,  the
jurisdiction for conducting the enquiry and disposal  of  the  complaint  is
conferred on the BCI by the mandate of the Act.  The context, the  intention
and the purpose is clear  as  crystal.  The  BCI  is  required  to  exercise
original jurisdiction that was to be exercised by the State Bar Council.
23.   To understand the language employed in a statutory provision, one  may
recapitulate what Chinnappa Reddy, J. had to say in Reserve  Bank  of  India
v. Peerless General Finance and Investment Co. Ltd. and others[1] :-
“33. Interpretation must depend on the text and the context.  They  are  the
bases of interpretation. One may well  say  if  the  text  is  the  texture,
context is  what  gives  the  colour.  Neither  can  be  ignored.  Both  are
important.  That  interpretation   is   best   which   makes   the   textual
interpretation match the contextual. A statute  is  best  interpreted   when
we  know  why  it was enacted. …”

24.   Sabyasachi Mukharji, J. (as  His  Lordship  then  was)  in   Atma  Ram
Mittal v. Ishwar Singh Punia[2], emphasizing on the intention of  Parliament
or, in other words, the will of the people, observed:-

“9.  … Blackstone tells us that the fairest  and  most  rational  method  to
interpret the will of the legislator is by exploring his intentions  at  the
time when the law was made, by signs most natural and  probable.  And  these
signs are either the words, the context,  the  subject-matter,  the  effects
and consequence, or the spirit and reason  of  the  law.  (emphasis  by  the
court) See Commentaries on the Laws of England (facsimile  of  1st  Edn.  of
1765, University of Chicago Press, 1979, Vol. 1, p. 59).  Mukherjea,  J.  as
the learned Chief Justice then was, in Poppatlal Shah v. State of  Madras[3]
said that each word, phrase or sentence was to be construed in the light  of
purpose of the Act itself. But words must be construed with  imagination  of
purpose behind them said Judge Learned Hand, a long time  ago.  It  appears,
therefore, that though we are concerned with seeking of  intention,  we  are
rather looking to the meaning of the words that  the  legislature  has  used
and the true meaning of what words as  was  said  by  Lord  Reid  in  Black-
Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg A.G.[4].  We
are clearly of the opinion that having regard to the language we  must  find
the reason and the spirit of the law. …”


25.   In S. Gopal Reddy v. State of A.P.[5], the Court observed:-
“It is a well-known rule of interpretation of statutes  that  the  text  and
the context of the entire Act must be looked into while interpreting any  of
the expressions used in a statute. The courts must look to the object  which
the statute seeks to achieve while interpreting any  of  the  provisions  of
the Act. A purposive approach for interpreting the Act is necessary.”

26.   In High Court  of  Gujarat  and  another  v.  Gujarat  Kishan  Mazdoor
Panchayat and  others[6]  while  discussing  about  the  importance  of  the
context, the Court stated thus:-
“38. In The Interpretation and Application of Statutes  by  Reed  Dickerson,
the author at p. 135 has  discussed  the  subject  while  dealing  with  the
importance of context of the statute in the following terms:

“… The essence of the language is to  reflect,  express,  and  perhaps  even
affect  the  conceptual  matrix  of  established  ideas  and   values   that
identifies the culture to which it belongs. For this  reason,  language  has
been called ‘conceptual map of human experience’.”


27.   The aforesaid authorities give stress on textual  interpretation  that
would  match  context  and  further  to  explore  the   intention   of   the
legislature.  The  authorities  further  emphasise  the  words  have  to  be
understood regard being had to the purpose behind it and hence, the  concern
with the intention is basically to decipher the meaning  of  the  word  that
the legislature has placed on it.  When the language employed under  Section
36B(1) and Section 36 are read in juxtaposition, there remains no  scintilla
of doubt that the legislature desired that the disciplinary proceedings  are
to be put an end to within a particular time frame by the State Bar  Council
and if that is not done, the whole thing gets transferred to the BCI,  which
is obliged to cause an enquiry.  Thus understood, there can be no  trace  of
doubt that the original jurisdiction  to  deal  with  the  complaint  stands
transferred to the BCI.  Once the original jurisdiction is  transferred,  to
rely upon the language that the BCI may dispose of would include any  manner
of disposal which would include a remand, cannot be  thought  of.   That  is
neither  the  legislative  intendment  nor  the  legislative  purpose.   The
legislature, as  we  find,  never  intended  a  complaint  made  against  an
Advocate either  from  the  perspective  of  the  complainant  or  from  the
delinquent to be transferred to BCI, again to be sent back.
28.   At this stage, we think it  appropriate  to  state  that  there  is  a
distinction between an appellate jurisdiction which the BCI exercises  under
Section 37 and  the  original  jurisdiction  under  Section  36B(1).   While
exercising the appellate jurisdiction, the BCI can remand the matter to  the
State Bar Council.  In this context, reference to  a  three-Judge  Bench  in
Narendra Singh v. Chhotey Singh and another[7], would be apt.  In  the  said
case, the question arose with  regard  to  ambit  and  jurisdiction  of  the
Disciplinary Committee of the BCI hearing an  appeal  against  an  order  of
Disciplinary Committee of  a  State  Bar  Council  made  under  Section  35.
Dealing with the same, the Court held:-
“8. … appellate body enjoys very wide jurisdiction because it  is  competent
to pass any order as it may deem fit. This jurisdiction of widest  amplitude
takes within its sweep the power to vary the punishment  which  would  imply
enhancement  of  punishment  and  the  only  obligation,  while  varying  or
enhancing the punishment, on the appellate body is to hear  the  person  who
is likely to be prejudicially affected by such an order.”

29.   The Court thereafter  addressed  the  issue  of  scope  and  ambit  of
jurisdiction of a quasi-judicial body whose jurisdiction is defined in  such
as “as it deems fit”.  It referred to the authorities in  Raja  Ram  Mahadev
Paranjype v. Aba Maruti Mali[8] and R v.  Boteler[9]  and  opined  that  the
discretionary jurisdiction has to be exercised keeping in view  the  purpose
for which it is conferred, the object sought to be achieved and the  reasons
for granting such wide discretion.  A reference was made to the decision  in
O.N. Mahindroo v. District Judge, Delhi[10]  wherein  this  Court  has  held
that dealing with an appeal under Section 38, the jurisdiction of the  Court
was not restricted, for the Court is dealing with an appeal not only on  law
but also on appeal on facts.  In the said decision, examining the  amplitude
of power including the power to review, the Court observed:-
“Such powers may be exercised in a suitable case for or against an  advocate
even after the matter  has  gone  through  the  hands  of  the  Disciplinary
Committee at some stage or even through this Court. These matters  are  also
not governed by the analogy of autrefois convict or autrefois acquit in  the
Code of  Criminal  Procedure.  Disciplinary  proceedings  against  a  lawyer
involve not only the  particular  lawyer  but  the  entire  profession.  The
reputation of the legal profession is the sum total  of  the  reputation  of
the  practitioners.  The  honour  of  the  lawyer  and  the  purity  of  the
profession are the primary considerations and they are intermixed.”

      After so stating, the Court observed that  a  disciplinary  proceeding
against a member of a  profession  whose  services  are  made  available  to
society as a whole is to be involved  as  between  the  profession  and  its
erring manner and not  between  the  complainant  and  delinquent  advocate.
Emphasis has been laid on the said aspect to determine the  jurisdiction  of
the bodies set up to carry out the purposes of the Act.
30.   Thereafter, the Court adverted to the facts  of  the  case  and  found
that the Disciplinary  Committee  of  the  Bar  Council  of  India  was  not
satisfied with reference to the disposal of third  head  of  charge  by  the
Disciplinary Committee of the State Bar Council,  and  merely  remanded  the
matter to the Disciplinary Committee of the  State  Bar  Council  to  assign
reasons for its decision.  The  said  direction,  as  the  Court  held,  was
certainly within the powers of the appellate body as it had jurisdiction  to
decide an appeal ‘as it deems fit’,  and  while  so  deciding,  it  was  not
hedged in by the technical rule of appeal against acquittal.
31.   Learned counsel for the 1st respondent would  submit  that  the  words
“pass such orders as it considers appropriate” would  clothe  the  BCI  with
the jurisdiction to remand the matter to the State  Bar  Council.   We  have
already  referred  to  the  statutory  scheme  and  the  purposes   of   the
legislation.  As has been held in Narendra Singh  (supra)  the  disciplinary
authority can remand the  matter  in  exercise  of  appellate  jurisdiction.
There can be no shadow of doubt that  the  BCI,  while  exercising  original
jurisdiction on transfer of  a  complaint,  cannot  exercise  the  appellate
jurisdiction.  Therefore, the order passed by the disciplinary authority  by
placing reliance on its rules is wholly unsustainable.
32.   Having expressed our opinion, ordinarily we would  have  proceeded  to
record the formal part of the judgment.  But a significant  aspect  deserves
to be addressed.  It pertains to  the  nobility  of  legal  profession.   In
Sanjiv Dutta, Dy. Secretary, Ministry  of  Information  &  Broadcasting,  In
re[11], the Court, taking note of various  instances  which  deserve  to  be
described  as  unfortunate,  both  for  the   legal   profession   and   the
administration of justice, observed thus:-
“The legal profession is a solemn and serious  occupation.  It  is  a  noble
calling and all those who belong to it are its honourable members.  Although
the  entry  to  the  profession  can  be  had  by   acquiring   merely   the
qualification of technical competence, the honour as a professional  has  to
be maintained by its members by their exemplary conduct both in and  outside
the court. The legal profession is different from other professions in  that
what the lawyers do, affects not only an individual but  the  administration
of justice which is the foundation of  the  civilised  society.  Both  as  a
leading member of the intelligentsia of the society  and  as  a  responsible
citizen, the lawyer has to conduct himself as a model  for  others  both  in
his professional and in his private and  public  life.  The  society  has  a
right to expect of him such ideal behaviour.”

33.   The Court further stated:-
“If the profession is to survive, the judicial system has to  be  vitalised.
No service will be too small in making the system efficient,  effective  and
credible. The casualness and indifference with which some  members  practise
the profession are certainly not calculated to achieve that  purpose  or  to
enhance the prestige either of the profession or  of  the  institution  they
are serving. If people lose confidence in the profession on account  of  the
deviant ways of some of its members, it is not  only  the  profession  which
will suffer but also the administration of justice as a whole.  The  present
trend unless checked is likely to lead to a stage when the  system  will  be
found wrecked from within before it is wrecked from outside.”

34.   With the aforesaid observations, the Court  expected  that  aberration
will be less.  Though the said observations had its impact,  the  misconduct
on the part of some Advocates still continues.
35.   In Sudha v. President, Advocates Association, Chennai and  others[12],
the Court, while dealing with the directions issued by  the  High  Court  of
Madras regarding the management of Madras High Court Advocates  Association,
noted various facts, adverted to  the  resolutions  passed  by  the  Tellers
Committee,  devices  adopted  by  the  Committee  constituted  for  peaceful
meeting, and observed:-
“Many a time it is noticed that those who are not  lawyers  get  entry  into
the Association room by putting on merely black  coat  as  at  the  time  of
election the feelings are running high. Such elements take  undue  advantage
of the situation and bring a bad name to the Association of  the  advocates.
Therefore, to deter such elements the amendments have been  carried  out  in
the  bye-laws.  Those  amendments  carried  out  in  the  bye-laws  of   the
Association can hardly be  regarded  as  against  the  legal  fraternity  in
general and as against junior members of the Bar in particular.”

36.   In the context of the said case, the two-Judge Bench felt  obliged  to
say:-
“The legal profession is different from other professions in that  what  the
lawyers do, affects  not  only  an  individual  but  the  administration  of
justice which is the foundation of the civilised society. Both as a  leading
member of the intelligentsia of the society and as an  intelligent  citizen,
the lawyer has to conduct  himself  as  a  model  for  others  both  in  his
professional and in his private and public life.”


37.   The aforesaid expression  shows  nature  of  the  profession  and  the
expectation from the society from the members of the legal profession.
38.   In Dhanraj Singh Choudhary v. Nathulal Vishwakarma[13],  it  has  been
observed that an Advocate’s attitude towards dealing with his client has  to
be  scrupulously  honest  and  fair  and  the  punishment  for  professional
misconduct has twin objectives – deterrence and correction.
39.   Having noted these  authorities,  we  may  recapitulate  what  Krishna
Iyer, J. had to say in V.C. Rangadurai v. D. Gopalan and others[14]:-
“5. Law’s nobility as a  profession  lasts  only  so  long  as  the  members
maintain their commitment to integrity and service to the community.”

40.    In  this  regard,  a  speech  from  Eulogy   of   Judges   by   Piero
Calamandrei[15] would be seemly:-
“The difference between the true lawyer and those men who consider  the  law
merely a trade is that the latter seek to find ways to permit their  clients
to violate the moral standards of society without over-stepping  the  letter
of the law, while the former look for principles which will  persuade  their
clients to keep within the limits of the spirit of the law in  common  moral
standards.”

41.   We have a purpose in referring to  the  aforesaid  pronouncements.   A
lawyer is treated as a part of the  noble  profession  and  expected  as  an
elite  member  of  the  society,  to  be  professionally   responsible   and
constantly remind himself that his services are rendered  to  the  consumers
of justice.  As has been held  in  Pandurang  Dattatraya  Khandekar  v.  Bar
Council of Maharashtra, Bombay and ohters[16], an advocate stands in a  loco
parentis towards the litigants. He has a paramount duty to  his  client  and
client is entitled to receive disinterested, sincere and  honest  treatment.


42.   Once a complaint is made by a litigant, it has to  follow  a  definite
procedure and is required to be dealt with as per the command of the Act  to
conclude the disciplinary proceeding within a period of one  year  from  the
date of  receipt  of  the  complaint  or  the  date  of  initiation  of  the
proceedings at the instance of the State Bar Council.  On many an  occasion,
it has come to the notice of this Court that disciplinary authority  of  the
State Bar Council is not disposing of the complaint  within  the  stipulated
period, as a consequence of which the proceeding stands transferred  to  the
BCI.  The responsibility to deal with the disciplinary proceedings  is  cast
on the State Bar  Council  which  constitutes  its  disciplinary  committee.
Every member of the Disciplinary Committee is aware that the proceeding  has
to be concluded  within  one  year.   The  complainant  and  the  delinquent
advocate are required  to  cooperate.  Not  to  do  something  what  one  is
required to do, tantamount  to  irresponsibility  and  the  prestige  of  an
institution or a statutory body inheres in carrying out the  responsibility.
 One may not be always right in the decision but that does not  mean  to  be
shirking away from taking a decision and allow the matter to be  transferred
by operation of law to  the  BCI.   A  statutory  authority  is  obliged  to
constantly remind itself that the mandate of the statute is  expediency  and
the stipulation of time is mandatory.  It will not be erroneous to say  that
the Disciplinary Committee is expected to perform its  duty  within  a  time
frame and not to create a blameworthy situation.  It is better  to  remember
offering an explanation to one’s own conscience is like  blaming  everything
on “accident”.  When duties are given by law,  duties  are  required  to  be
performed.

43.   In view of what we have stated above, we think it  will  be  advisable
that the State Bar Councils  take  a  periodical  stock  of  cases  in  each
meeting with regard to the progress of the Disciplinary Committee, find  out
the cause of delay and guide themselves to act with expediency so  that  the
Council, as a statutory body, does its duty as commanded under the Act.

44.   In view of the aforesaid, we allow the appeal,  set  aside  the  order
passed by the Disciplinary Committee of the BCI and  remand  the  matter  to
the Disciplinary Committee of the BCI to decide the same in accordance  with
law within a period of three months from the date  of  receipt  of  copy  of
this judgment.  Registry is directed to send a copy of this judgment to  all
the Secretaries of each of the State Bar Council, who in  turn  can  apprise
the members of the State Bar Council so that appropriate  steps  are  taken.
There shall be no order as to costs.




                                             .............................J.
                                                               [Dipak Misra]



                                             ............................ J.
                                                             [A.M.
Khanwilkar]

New Delhi
April 06, 2017


-----------------------
[1]    (1987) 1 SCC 424
[2]    (1988) 4 SCC 284
[3]    AIR 1953 SC 274
[4]    1975 AC 591
[5]    (1996) 4 SCC 596
[6]    (2003) 4 SCC 712
[7]     (1983) 4 SCC 131
[8]    1962 Supp. 1 SCR 739; AIR 1962 SC 753
[9]    (1864) 33 LJMC 101 : 122 ER 718
[10]   (1971)  3 SCC 5
[11]    (1995) 3 SCC 619
[12]    (2010) 14 SCC 114
[13]    (2012) 1 SCC 741
[14]    (1979) 1 SCC 308
[15]    Princeton, New Jersey: Princeton University Press, 1946), p.45.
[16]    (1984) 2 SCC 556

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