CASE COMMENTS

ON

Hikmat Ali Khan v Ishwar Prasad Arya

& others (AIR 1997 SC 864)
Facts of the case

Ishwar Prasad Arya was an advocate practicing at Badaun in U.P.He assaulted his
opponent,RadheyShyam in the courtroom of munsiff at Badaun with knife .After
investigation he was prosecuted for offence Under section 307 of the Indian penal code and
section 25 of the Arms Act and he was sentenced for 3 years imprisonment.But he remained
free fraudulent letter said to have come from governor suspending the
conviction.TheIIIadditional Distinct and session judge . Badaun send a compliant containing
this fact to the chairman .Bar of the period of 2 year .The Advocate appeal to the bar council
of India.which set aside the order of the bar council of UP

The appellant Hikmat Ali Khan complained against the advocate and prayed for the
inquaryin.The said proceeding the advocate appeared and filled his written statement but
there after he did not appear.Hence the bar council of UP prosecuted exparte against him and
the disciplinary committee of the State Bar Council Of UP debarred for a 3 year.TheAdvocate
again appeal bar council of India and it had set aside the punishment then Hikmat Ali Khan
filed appeal to the supreme Court held that his conduct was such that his name should be
removed from the state role of advocate as he was found guilty of an office of attempting to
commit and convicted for it and as he was and unworthy of remaining in the profession.
Issues Involved

• Whether the punishment given by the state bar council of UP and the bar council of
India was adequate or not?

• Whether Mr.Ishwar Prasad as guilty of professional misconduct Under section 35 of

advocate Act 1961 ?

• Whether a person who is convicted of an office offence involving moral turpitude can
be disqualified for being admitted as an advocate on the state rolls of advocate under
section 24 of the advocate Act 1961 ?
Analysis of provisional of Law

The misconduct of the appellant is that he was assaulted or attacked his

opponent.Mr.RadhaShyamin the courtroom with knife Under section 24(a) of the advocate
Act 1961 person who is convicted of an offence related to moral turpitude will be disqualified
from being enrolled as an advocate so if a person who has allegedly enrolled in the bar
council as an advocate has committed such an offence. He is debarred from the bar council
and has committed misconduct.
Argument of petitioner

The Advocate on behalf of the appellant argued that disciplinary committee has failed
to acknowledge the fact that the respondent evaded arrest for 16 months on the basis of a
fraudulently good letter.The conviction of the respondent Under India penal code section 307
has also not been taken into regard by the Bar Council . The appellant lastly submitted that
the Bar Council Of UP which levied punishment of disbarment of 3 years was less quantum
of punishment and the Bar Council should have allowed an appeal against it
Argument of Respondent

Ishwar Prasad Arya, respondent No. 1, was registered as an advocate with the Bar
Council of Uttar Pradesh and was practicing at Badaun. An incident took place on May 18,
1971 during lunch interval at about 1.55 p.m., in which respondent No. 1 assaulted his
opponent RadheyShyam in the Court room of Magistrate, Bisauli at Badaun with a knife. A
pistol shot is also said to have been fired by him at the time of incident. After investigation he
was prosecuted for offences under Section 307 of the Indian Penal Code and Section 25 of
the Arms Act. The 1st Temporary Civil and Sessions Judge, by his judgment dated July 3,
1972, convicted him of the said offence and sentenced him to undergo rigorous imprisonment
for three years for the offence under Section 307, I.P.C. and for a period of nine months for
offence under Section 25 of the Arms Act. A copy of letter No. Dated April 28, 1976
purporting to have been sent by Shri L.R. Singh, Deputy Secretary, Ministry of Home, U.P.,
Lucknow, addressed to the District Magistrate, Badaun was received in the Court of the 3rd
Additional District and Session Judge. Badaun was responsible for executing the order of the
court of the 1st Temporary Civil & Sessions Judge on its abolition. In the said letter it was
stated that the Governor has been pleased to suspend the conviction of Ishwar Prasad Arya
under Article 161 of the Constitution with immediate effect and until further orders he should
remain free. After receiving the copy of the said letter dated April 28, 1979, stayed the
proceedings in the case and despite repeated inquiries by the court from the State
Government about the suspension of the sentences the execution of the sentence awarded to
respondent remained suspended till September 7, 1977, when on receipt of a crash radiogram
message from the Home Ministry, Lucknow, it was found that the letter dated April 28, 1976
was fraudulent and thereupon a warrant for the arrest of respondent no.1 was issued by the
court on September 28, 1977 and he was arrested the same day and was sent to Badaun Jail to
undergo the imprisonment. On December 9, 1977 Shri G.S. Sharma, 3rd Additional District &
Session Judge, Badaun, sent a complaint containing these facts to the Chairman, Bar council
of U.P., for taking action against respondent No. 1 under section 35 of the Advocates Act,
1961. On the basis of the said complaint disciplinary proceedings were initiated against
respondent No. 1 by the Bar Council of U.P.it has directed that respondent No. 1 be debarred
from practicing as an advocate for a period of two years from the date of the service of the
order. Respondent No.1 filed an appeal (D.C. Appeal No. 4 of 1982) in the Bar Council of
India against the order dated January 30, 1982 passed by the Disciplinary Committee of the
Bar Council of U.P.
Judgement

Ishwar Prasad Arya, Respondent 1, was registered as an advocate with the Bar
Council of Uttar Pradesh and was practicing at Budaun. An incident took place on 18-5-1971
during lunch interval at about 1.55 p.m. in which Respondents 1 assaulted his opponent
RadheyShyam in the courtroom of Munsif/Magistrate, Bisauli at Budaun with a knife. A
pistol shot is also said to have been fired by him at the time of the incident. After
investigation he was prosecuted for offences under Section 307 of the Indian Penal Code and
Section 25 of the Arms Act. The 1st Temporary Civil and Sessions Judge, by his judgment
dated 3-7-1972, convicted him of the said offence and sentenced him to undergo rigorous
imprisonment for three years for the offence under Section 307 IPC and for a period of nine
months for offence under Section 25 of the Arms Act. The conviction and sentence for the
offence under Section 307 IPC were maintained by the High Court by its judgment dated 10-
9-1975 in Criminal Appeal No. 1873 of 1972 but he was given the benefit of doubt regarding
offence under Section 25 of the Arms Act and the conviction and sentence for the said
offence were set aside. Before he could be arrested to undergo the punishment of rigorous
imprisonment for three years for offence under Section 307 IPC, a copy of letter No.
Pr.VI/Chh.Pa XXIII-2016-75-76 dated 28-4-1976 purporting to have been sent by Shri L. R.
Singh, Deputy Secretary, Ministry of Home, U.P., Lucknow, addressed to the District
Magistrate, Budaun bearing endorsement No. 1513(II)-75- 76 was received in the Court of
the IIIrd Additional District and Sessions Judge, Budaun, who was responsible for executing
the order of the court of the 1st Temporary Civil and Sessions Judge on its abolition. In the
said letter it was stated that the Governor has been pleased to suspend the conviction of
Ishwar Prasad Arya under Article 161 of the Constitution with immediate effect and until
further orders he should remain free. After receiving the copy of the said letter dated 28-4-
1976 the IIIrd Additional District and Sessions Judge, on 30-4-1976, stayed the proceedings
in the case and despite repeated enquiries by the court from the State Government about the
suspension of the sentence the execution of the sentence awarded to the respondent remained
suspended till 27-9- 1977, when on receipt of a crash radiogram message from the Home
Ministry, Lucknow, it was found that the letter dated 28-4-1976 was fraudulent and thereupon
a warrant for the arrest of Respondent I was issued by the court on 28-9-1977 and he was
arrested the same day and was sent to Budaun Jail to undergo the imprisonment. On 9-12-
1977 Shri G. S. Sharma, IIIrd Additional District and Sessions Judge, Budaun, sent a
complaint containing these facts to the Chairman, Bar Council of U.P., for taking action
against Respondent 1 under Section 35 of the Advocates Act,

1961 . On the basis of the said complaint disciplinary

Proceedings (DC Case No. 70 of 1981) were initiated against Respondent 1 by the Bar
Council of

U.P. By order dated 30-1-1982 the Disciplinary Committee of the Bar Council of U.P. found.
Critical Analysis of the case.

The advocates act 1961 was a long sought after legislation to consolidate the law relating
to the legal practioners, constitution of autonomous Bar Councils, prescription of uniform
qualification for admission and enrolment of persons as advocates, more importantly it
imposes punishment for professional misconduct by advocates and in that respect it acts as a
quasi-judicial body. Only body that can be approached for professional misconduct of
advocate is Bar council constituted under the Act except for contempt of court which is also a
misconduct. However the following criticisms are levelled against the Act in terms of its
power to punish for professional and other misconduct;

1) No provision of appeal is provided in the act in respective High courts, hence power
of bar Council of the State is equated with that of High court.

2) In ordinary course it is difficult for an advocate to approach the Supreme Court and
get the case admitted from an aggrieved order of the Bar Council of India.

3) The act has not defined the term misconduct, instead it has included professional and
other misconduct. And definition is left to the Bar councils and Supreme court to
decide and to widen the scope.

4) Denial of the principle of natural justice to an ordinary litigant who is aggrieved with
the misconduct of the advocate, as the body of their association ie Bar council is
deciding the case in which their own member is the respondent. This is against the
rule that “no man can be a judge in his own case”. The lay person has to approach
appropriate fora constituted under Consumer Protection act 1986 to get any Pecuniary
relief due to the loss caused by such misconduct, if it fits under deficiency of service.
5) At times, based on the circumstances the Act is violative of Article 19 (1) (g), right to
practice trade or profession, and also freedom of speech and expression enshrined in
Article 19(1)(a).

6) However the intention of the legislature to uphold the dignity of the profession and to
preserve the moral. Etiquette among legal practioners have been largely achieved by
the Act.
Recommendation suggestion

In this case, the acts of misconduct performed by Ishwar Prasad, were serious in
nature and he should be disqualified for being admitted as an advocate on the State Rolls of
Advocate, because advocacy is a noble profession, and it should not be degraded by the
professional misconduct and unethical practices.
Conclusion

The paper set out to achieve three objectives. The first objective was to examine the
facts, arguments and reasoning of the Supreme Court in Hikmat Ali v. Ishwar Prasad Arya. It
was found that when an advocate assaulted another advocate with a knife, he was convicted
for an offence under s.307 of the IPC. On the complaint of the Judge involved, the
disciplinary committee of the State Bar Council suspended the advocate for two years. This
was overturned by the BCI as they thought that the evidence was insufficient. The
Respondent in the above case was suspended again for a period of three years on the
complaint of the Appellant but the BCI overturned this suspension too. This led to te appeal
to the Supreme Court.

The Supreme Court held that the Respondent had committed an offence involving
moral turpitude as laid down in s.24A of the Act and therefore he was unfit to continue in the
profession. The reasoning was that if a person was disqualified from enrolling in the Bar after
committing an offence involving moral turpitude then a person who is also enrolled must be
disqualified from continuing to be a part of the Bar.

The second objective was to examine the concepts of professional misconduct and
moral turpitude. That were used to strike the Respondent’s name from the State roll of
advocates. The term “misconduct” has not been defined in any Act or Rules and therefore
hasto be determined on a cases to case basis. Some guidance has been given by the Courts
which have repeatedly held that in the context of misconduct of an advocate, any conduct that
in any way renders an advocate unfit for the exercise of his profession, or is likely to hamper
or embarrass the administration of justice may be considered to amount to misconduct. As far
as “moral turpitude” is concerned a similar situation as to that of “misconduct exists. Due to
the lack of definition, the interpretation of the term remains. Subjective. Ultimately, however,
the term has consistently been interpreted as the element in any Action which would shock
and cause revulsion among members of society.