10 CASES PRESCRIBED

FOR PRACTICAL PAPER I

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CONTENTS

1. In the Matter of D, An Advocate 1

2. P.J. Ratnam vs. D. Kanikaram and Others 3

3. N.B. Mirzan vs. The Disciplinary Committee of Maharashtra State Bar Council 4

4. Chandra Shekhar Soni vs. Bar Council of Rajasthan and Others 5

5. V.C. Ranga Durai vs. D. Gopalan 7

6. E.M.S. Nambudiripad vs. T. Narayanan Nambiyar 8

7. In Re An Advocate 10

8. Bar Council of Maharashtra vs. M.V. Dhabolkar and Others 13

9. In Re Vinay Chandra Sharma 15

10. Supreme Court Bar Association vs. Union of India and Others 19

Summary of Cases

1. In the Matter of D, An Advocate 21

2. P.J. Ratnam vs. D. Kanikaram and Others 21

3. N.B. Mirzan vs. The Disciplinary Committee of Maharashtra State Bar Council 22

4. Chandra Shekhar Soni vs. Bar Council of Rajasthan and Others 22

5. V.C. Ranga Durai vs. D. Gopalan 23

6. E.M.S. Nambudiripad vs. T. Narayanan Nambiyar 23

7. In Re An Advocate 24

8. Bar Council of Maharashtra vs. M.V. Dhabolkar and Others 24

9. In Re Vinay Chandra Sharma 25

10. Supreme Court Bar Association vs. Union of India and Others 25
 CASE 1

IN THE MATTER OF D, AN ADVOCATE OF SUPREME COURT

AIR 1956 SC 102

(B.K. Mukherjea, S.R. Das, Venkatrama Iyyer, JJ)

The delinquent advocate was an advocate of the Bombay High Court and also
practised before the Supreme Court. He was prosecuted before the Presidency
Magistrate of Girgaum, Bombay for having committed an offence under Bombay
Prohibition Act. The prosecution ended in conviction and the advocate was
sentenced to rigorous imprisonment for one month and was fined for Rs. 201.
In default of fine he was to undergo imprisonment of four weeks. The advocate
preferred an appeal before Bombay High Court but the Bombay High Court
confirmed the order of the Presidency Magistrate.

In the meanwhile the Metropolitan Magistrate made a report to the High Court
regarding the misbehaviour of the advocate during the hearing of the case. The
Bombay High Court constituted a Tribunal consisting of 3 Members of Bar
Council and entrusted the case of misconduct by the advocate to the said
Tribunal. The Tribunal had to decide:

1. Whether the advocate is guilty of misconduct by misbehaving before the

Magistrate?

2. Whether the advocate is guilty of other misconduct by committing an offence

under Bombay Prohibition Act?

Initially the advocate objected to the very constitution of the Tribunal and took
the stand that the Tribunal did not have any jurisdiction to try the case. After
that he sufficiently protracted the proceedings and finally submitted that he
admits all the charges against him except that the report of the Magistrate
contained certain exaggerated facts. Thereupon the Tribunal submitted its
report to the High Court and High Court found the advocate guilty of the first
charge on his own admissions, but held him no guilty of misconduct under the
second charge inasmuch as offence under Bombay Prohibition Act did not
amount to an offence involving moral turpitude.
 2

The advocate prayed for a certificate of fitness to prefer an appeal before the
Supreme Court but the High Court refused to issue the certificate. The Special
Leave Petition filed by the advocate was rejected by the Supreme Court.
Supreme Court issued a rule calling upon the advocate to show cause why
action should not be taken against him for committing misconduct as an
advocate of Supreme Court.

The advocate submitted his objections challenging the proceedings before the
High Court and alleged that the same were without jurisdiction and he was
forced to admit certain facts. The Supreme Court pointed that his S.L.P. was
rejected and this was not an appeal against the order of High Court. As such he
was not to make any ground challenging the order of the High Court or
Tribunal. Thereupon the advocate challenged the report of the Magistrate
himself. But in view of his own admissions before the Tribunal Supreme Court
was not inclined to accept these grounds and held that the advocate was guilty
of misconduct. It observed that the advocate tried to avoid prosecution by
admitting the facts and hoped that upon his admission of guilt he would be
acquitted by the High Court. The Supreme Court frowned upon the tactics
played by the advocate. The Supreme Court upheld the order of the Bombay
High Court both on conviction and sentence.
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CASE 2

P.J. RATNAM VS. D. KANIKARAM & ORS.

AIR 1964 SC 244

(B.P. Sinha, CJ, J.C. Shah & N. Rajagopala Ayyangar JJ)

The Respondent was an advocate for the Plaintiff in a suit for possession of
certain lands. The suit was dismissed by the Trial Court and appeal was
preferred against this order before the Subordinate Judge. In that appeal an
Interim Order was issued directing the Respondents therein to deposit a sum of
Rs.1,600 in the Court by selling crops of the lands in dispute. Later on it
appears that a Second Appeal came to be preferred before the High Court
against the order of Subordinate Judge in the appeal. In the Second Appeal the
Complainant made an application for withdrawal of the money and the same
was allowed by the high court. A cheque came to be issued in the name of
Respondent-Advocate. But the Complainant did not receive the money. The
money was misappropriated by the Respondent-Advocate. Subsequently, the
Second Appeal went against the Complainant and he had to refund the money
from his own pocket. Therefore the Complainant made a complaint against the
Respondent before the High Court for having committed the misconduct by
misappropriation of client's money. The High Court found the Respondent guilty
of misconduct and suspended him from practice for a period of five years.

The Respondent preferred an appeal before the Supreme Court against the order
of the High Court.

After going through the records Supreme Court found that the facts alleged by
the Complainant were substantiated by the records and the Respondent had
committed misappropriation of client's money and thereby committed breach of
his duty towards client. Therefore the Supreme Court found that the order of the
High Court was justified and did not prefer to interfere with it.
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CASE 3
N.B. MIRZAN VS THE D.C. OF MAHARASHTRA BAR COUNCIL
AIR 1972 SC 46
(S.M. Sikri, A.N. Ray, D.G. Palekar, JJ)

The Complainant Shri Saidur Rehaman engaged the Respondent as his advocate
on an obstructionist notice issued to him by the Presidency Small Cause Court,
Bombay. He was introduced to the Respondent by his client one Shri Noor
Mohammed. At the time of his engagement no fee was demanded or decided but
a sum of Rs. 190 was paid to the Respondent towards the expenses. Later on the
Respondent received Rs. 975 from Saidur Rehaman’s wife representing that the
same was necessary for the purpose of depositing in the Court. After some time,
the Respondent again demanded a further sum of Rs. 250 representing that the
same was to be paid to some officer of the Court or to the Judge for getting a
favourable order in the case.

Subsequently, the Landlord of Shri Saidur Rehaman filed a case against him in
the City Civil Court, Bombay for ejectment and mesne profits. In that case the
complainant was directed by the Court to pay the arrears of rent within two
months. Surprised by this order, he made enquiries as to what happened to the
sum of Rs.950 paid by his wife for deposit in the Court, and thereupon he found
that the money was misappropriated by the Respondent. Therefore, he filed a
complaint before the Bar Council and the same was entrusted to one of its
Disciplinary Committees. The Committee found the advocate guilty and
debarred from practice.

Against this order of the D.C. of S.B.C. the Respondent preferred an appeal
before the Bar Council of India. Bar Council of India upheld the order of the
Lower D.C. on conviction but reduced the sentence from dismissal to
suspension for a period of 5 years on a condition that the Respondent shall pay
the amount misappropriated by him to Saidur Rehaman within 2 months.

Against this order of the Bar Council of India the Respondent preferred an
appeal before the Supreme Court. Supreme Court after going through all the
records found that the orders of both the D.C.s on conviction were correct and
also agreed with the sentence imposed upon him by the Bar Council of India.

Therefore Supreme Court refused to interfere with the order of the Bar Council
of India.
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CASE 4

CHANDRA SHEKHAR SONI VS BAR COUNCIL OF RAJASTHAN & ORS

AIR 1983 SC 1012

(A.P. Sen, E.S. Venkataramaiah, R.B. Misra, JJ.)

The Complainant Bhania and his wife Galaki were assaulted, and as a result of
this they sustained head injuries. Both of them were examined by one Dr.
Raman Verma and he referred them to a Radiologist Dr. Mangal Sharma. Dr.
Sharma examined both Complainant Bhaniya and his wife Smt. Galaki. He
found nothing abnormal in X-ray plate of the complainant Bhaniya but the X-
ray plate of Smt. Galaki revealed signs of fracture of skull. Therefore, Dr.
Sharma suggested that he should refer the matter to a specialist.

The Respondent-advocate approached the complainant with the X-ray plate

taken by Dr. Sharma and promised to get a report favourable to the
Complainant. The Complaiant engaged the Respondent as his counsel. The
respondent told the Complainant that Rs.300 had to be paid to Dr. Sharma and
sent the Complainant along with a letter to Dr. Sharma to the effect

“Dear Doctor Sahib,

I am sending the man to you with X-ray plate. Your amount is lying with me. I will come to Jalore
in the evening and see you. Please do his work and it should be done positively in his favour.

Sd/-

Chandra Shekhar Soni”

The complaiannt approached Dr. Sharma with the letter. Dr. Sharma returned
the letter to the complaiant after reading it. Thereafter, Dr. Sharma sent another
report to the Station House Officer saying that there was evidence of fracture of
the skull of the Complaiant. The Respondent did not dispute the letter or its
contents, but tried to give different colur to the words of the letter. He pleaded
that he had sent the letter to one Dr. Surinder Singh Lodha, Homeopath who
was also the Editor of a newspaper Jan Prahari. The letter was in respect of the
publication of an advertisement. The letter was sent through one Shri Mahipal
 6

The Respondent in his letter stated that, the words “I am sending the man to
you with X-ray plate” related to an X-ray plate sent by him to Dr. Lodha. The
words “your amount is lying with me” relate to Rs.20 given to Mahipal for being
handed over to Dr. Lodha for the printing of an advertisement and words “please
do his work and it should be done positively in his favour” relate to the
publication of the advertisement as desired by Mahipal. The defence plea that
Dr. Lodha had taken X-ray plate of one of his relations who was suffering from
TB. Mahipal said that he had lost the letter, and therefore, he could not produce
it before the DC of the SBC.

On the contrary, the version of the Complainant was that he had taken the letter
to Dr. Sharma who after reading it returned the same to him. The fact remains
that the incriminating letter has been produced by the Complainant. This
completely falsifies the plea taken by the Respondent in his defence that the
letter was meant for publication of an advertisement in the Newspaper.
Admittedly no such advertisement was ever published.

The Respondent made frantic efforts to save himself through false evidence. But
the evidence on record clearly showed that the Respondent had taken money to
bribe the Radiologist.

Therefore the SBC found the Respondent guilty of grave professional misconduct
and suspended him from practice for a period of three years.

The Respondent preferred an appeal before the Bar Council of India. BCI upheld
the order of the SBC both on conviction and sentence.

The Respondent preferred an appeal before the Supreme Court. The SC found
the orders of both the Bar Councils on conviction proper but found that the
sentence imposed on a junior member of the Bar like the Respondent was
excessive and reduced the same to suspension for one year.
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CASE 5

V.C. RANGADURAI VS D. GOPALAN

AIR 1979 SC 281

(V.R. Krishna Iyer, D.A. Desai & A.P. Sen, JJ)

The Complainant had engaged the respondent to file suits on two promissory notes of
Rs. 15,000 and Rs. 5,000 respectively. The Respondent informed the Complainant that
he had filed the suits as desired by him, and after some time he also told that the suits
were decreed in favour of the Complainant. By making these representations, he
received Rs. 855 and Rs. 2555 from the Complainant towards fees and expenses. Later
on it turned out that no suit was ever filed by the Respondent and there was no
question of any decree. The Complainant filed a complaint before the State Bar Council
against the Respondent alleging misconduct by negligence in filing the case and
making false representation.

The Respondent contended that as the other side in the suit had already approached
him in respect of some other case and as he had already tendered advice to the other
side, he advised the Complainant to approach some other advocate. On a request by
the Complainant the Respondent referred him to one K.S. Lakshmi Kumaran and the
said Lakshmi Kumaran had actually filed the suits. Respondent denied the fact alleged
by the Complainant to the effect that he had received the promissory notes and money
towards fees and expenses from the Complainant.

The DC of the SBC found that the Respondent had failed in substantiating his case and
that there was sufficient reason for believing the version of the Complainant. As such it
held the respondent guilty of professional misconduct.

The order of the DC of the SBC was challenged by the Respondent before the Bar
Council of India which upheld the order of the SBC.

This order was challenged before the Supreme Court. SC, after going through the
records confirmed the orders of both the Bar Councils.
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CASE 6

E.M. SANKARAN NAMBOODIRIPAD VS. T. NARAYANAN NAMBIYAR

AIR 1970 SC 2015

(M. Hidayatullah, C.J.; G.K. Mitter and A.N. Ray, JJ.)

The Appellant was the former Chief Minister of Kerala. He delivered a speech
criticising the judiciary in the country and the judges of the judiciary. In his
speech he made a general remark alleging that the judiciary and the judges are
inclined towards the rich in the society. Whenever there is a balance of justice
and choice is available between rich and poor, the judges instinctively lean in
favour of the rich. The Appellant quoted Marks and Engels and said that judges
are guided and dominated by class hatred and class prejudices. Therefore he
suggested that it would be better if the judges are elected than appointed. But as
the constitution does not provide for this type of judiciary, he expressed the
need for basic state change.

The Respondent filed a complaint before the Kerala High Court on the basis of
the statement of the Appellant as appeared in the Indian Express. He contended
that through his speech the Appellant had scandalised the judiciary and his
speech was likely to cause loss of public faith in the judiciary, and as such the
speech amounted to contempt of Court.

The Appellant accepted the press report as accurate, but contended that it
lacked in some details. The Appellant took the defence of freedom of speech and
expression and also contended that his speech did not amount to contempt of
court in that it was a fair criticism of the judiciary.

The case was heard by a Full Bench of the Kerala High Court consisting of three
judges Raman Nair, Krishnamurthy Iyer and Mathew JJ. Mathew J. found
substance in the Appellant's defence that his speech was fair criticism of the
judiciary and hence delivered judgment in favour of the Appellant. The other two
judges formed the opinion that the speech of the Appellant amounted to
contempt of Court and convicted him of contempt of court and imposed a fine of
Rs. 1000 and 1 month's imprisonment in default of fine.
 9

Against this order of the Kerala High Court, the Appellant filed this appeal before
the Supreme Court. The Supreme Court in detail examined the theories of Marx
and Engels and formed an opinion that the Appellant had mistook the theories
and as a result of this he had delivered the speech. The Supreme Court also
examined the law of Contempt of Court in detail and held that there are different
kinds of Contempt of Court. Insult to judges, attack on them, comment on
pending cases to prejudice the fair judgment in those cases, obstruction of the
officers of the Court, witnesses or parties, abuse of the process of the Court,
scandalising the judges or the Court, etc. are the chief forms of Contempt of
Court. Though art. 19 of the Constitution of India provides for the freedom of
speech and expression, it does not provide for unrestricted freedom of speech.
There are exceptions. Art. 19 does not allow one to commit contempt of court. As
such, the statement made by the Appellant in his public speech was not
protected under art. 19. Further, the speech of the Appellant did not amount to
fair criticism of the judiciary inasmuch as the same was politically motivated
and was made in order to gain political fame for the Appellant. The words of the
Appellant were believed by people and it lowered the dignity of judiciary and the
constitution in the eyes of common people.

Therefore, the Supreme Court fully agreed with the majority judgment of the
Kerala High Court and dismissed the appeal. However, the Supreme Court was
pleased to reduce the sentence to fine of Rs. 50 or imprisonment of 1 week in
default of the payment of the fine.
 10

CASE 7

IN RE AN ADVOCATE

AIR 1989 SC 245

(M.P. Thakkar and B.C. Ray, JJ.)

Complainant's Case: Respondent No. 1 was an advocate practicing in

Bangalore. One of his clients had entered into an agreement with a person for
the purchase of a property by paying earnest money of Rs. 35,000. As the said
person did not execute sale deed in accordance with the agreement, he
approached the Respondent No. 1.

Complainant had given few ‘self’ cheques to the same person and was seeking to
recover the amount covered by those cheques from him. The client of the
Respondent No. 1 introduced him to the Respondent No. 1 and a suit came to be
instituted by the Respondent No. 1 on behalf of the Complainant. The
Complainant was told that the case was posted for written statement of the
defendant and therefore it was necessary for him to appear in the Court on that
day. Subsequently when the Complainant asked about the next date of hearing,
he was told that Respondent No. 1 was also not present when the case was
called out as it was posted for the written statement of the defendant. When the
Complainant made the enquiry he found that on the said date, the Respondent
No. 1 had withdrawn the suit as settled out of Court by filing a memo through
Respondent No. 2 who was his junior. It was also found that the Respondent No.
1 had applied for the refund of half court fee and obtained the same from the
court. But neither the claim amount nor the refund of court fee was received by
the Complainant. Therefore, the Complainant filed a complaint before Karnataka
State Bar Council.

Respondent's Case: Respondent admitted that the Complainant approached

him through one of his clients. He contended that he had filed an IA for
attachment of the defendant's property before judgment. The said property was
none other than the one which the defendant had agreed to sell to the
Respondent's client. The IA was initially rejected. Thereupon the client issued
paper publication that the property was agreed to be sold to him and cautioned
the public from purchasing or in any way dealing with it. Seeing this
publication, the Court allowed the IA for attachment of the property before
 11

judgment. Under the pressure, the defendant sold the property to the
Respondent's client as per the agreement. The Respondent was told by the client
that he was in possession of the cheques belonging to the Complainant and
therefore, the suit filed by the Complainant was not really necessary. Later on
the three persons, viz., the client, Complainant and the defendant in the suit
filed by the Complainant together came to the Respondent No. 1 and instructed
him to withdraw the suit. Relying upon their oral instructions, the Respondent
No. 1 in turn instructed his junior Respondent No. 2 to file the memo, and
accordingly, Respondent No. 2 filed the memo.

The Disciplinary Committee of the State Bar Council went through the records
and formed opinion that the Respondent No. 1 withdrew the case in order to
perfect the title of his client who had purchased the property while the
attachment of the property was in force. Therefore it held that the Respondent
was guilty of misconduct.

The Respondent-Advocate preferred an Appeal before the Bar Council of India

against the order of the Disciplinary Committee of the State Bar Council. The
Bar Council of India upheld the order of the State Bar Council, and against the
order of the Bar Council of India, this appeal was preferred.

The points raised in this Appeal were mainly technical in nature. They were:

1. Whether charge must be framed in disciplinary proceedings before the Bar

Councils?

2. Whether mens rea is a necessary element for professional misconduct?

3. Whether the allegations in such cases must be proved beyond reasonable

doubt?

4. Whether the respondent-advocate can be given benefit of doubt?

5. Whether an advocate bona fide acting upon the oral instructions given to him
by someone purporting to act on behalf of the client guilty of culpable
negligence or does it amount to negligence simpliciter?
 12

In the instant case, the DC of SBC had proceeded to record evidence

immediately after the defence of the respondent-advocate was filed. It had not
framed formal charge. The Supreme Court found that the proceedings before the
Disciplinary Committee being quasi criminal in nature, it was imperative on the
part of the Disciplinary Committee to frame charges. In the absence of the
charges it was very difficult, even nearly impossible for the respondent to defend
his case. Therefore, the proceedings before the DC of SBC were held to be
vitiated for the want of charge.

The Supreme Court remanded the case to the BCI for fresh hearing as per the
procedure. As the matter was subjudiced, the Supreme Court ordered that the
name of the Respondent-Advocate shall not appear in the reports, if any report
was published.
 13

CASE 8

THE BAR COUNCIL OF MAHARASHTRA VS. M.V. DHABOLKAR & ORS.

AIR 1976 SC 242

(V.R. Krishna Iyer, R.S. Sarkaria, A.C. Gupta, and S. Murtaza Fazal Ali, JJ.)

Certain advocates in Bombay used to solicit cases by standing near the gate of
the court complex. They used to rush towards any person who appeared to be a
prospective litigant and tried to snatch the papers from him. Sometimes this
ended in physical wrangle between advocates. In short, this caused a scene in
the court precincts, and thereby the dignity of the legal profession was lowered
in the eyes of public. Therefore, the Bombay High Court brought this to the
notice of the Maharashtra State Bar Council and directed it to take necessary
action in the matter.

Accordingly, the State Bar Council referred the matter of one Shri Kelawala and
15 others to one of its Disciplinary Committees. The Disciplinary Committee of
the State Bar Coucil found them guilty of misconduct and suspended from
practice for a period of three years. The advocates preferred an appeal before the
Bar Council of India and the Disciplinary Committee of Bar Council of India
found them not guilty and absolved them of the misconduct. Against this order,
the State Bar Council preferred this appeal before the Supreme Court.

The Supreme Court held that the cases of different advocates were clubbed
together and tired together. There was a common judgment in these cases.
Thereby there was confusion and the judgment was prejudiced. The Supreme
Court discussed the different cases separately.

The first case was that of Dabholkar, who was a senior prosecutor and an old
man. He was about to retire from his practice. He wanted to dispose of a few
cases which were pending in the courts. He had no intention to accept more
briefs. Moreover, there was no clear evidence against him. Therefore, Supreme
Court was pleased to exonerate him of the charges.

The second case was that of one Shri Bhagtani. Though he reamained ex parte,
as there was a lack of cogent evidence against him, he too was acquitted by the
Supreme Court.
 14

There was some evidence, though not very much reliable, against the third
respondent Shri Talati. It was submitted that the respondent had suffered by
tow long litigations before the two Bar Councils. He was in very poor
circumstances, and therefore, he deserved pardon. The respondent also filed an
unconditional apology for his conduct. Therefore, though Supreme Court upheld
the order of lowers DC, reduced the sentence of suspension.

The fourth respondent Shri Kelawala was a very old man. He was nearly blind.
Though there was some evidence against him, the Supreme Court did not
disturb the verdict of BCI on the basis of an undertaking given by the
respondent that he will not practice in future.

The next two respondents Shri Dixit and Shri Mandalia were also acquitted on
the ground that there was no evidence on record sufficient for their conviction.

The next respondent Doshi argued his case personally. He made out a case of
social service, and therefore he was implicated in the case. He challenged the
procedure followed by the SBC. Supreme Court agreed with the respondent and
acquitted him of misconduct.

The other respondent Shri Raisinghani was 65 years old. Still there was clear
evidence that he was engaged in at least tow fights resulting in torn trousers. He
was an old man and also a refugee from Pakistan, who had left all his property
in Pakistan. Therefore, the court took a sympathetic view towards him and
reduced the sentence.
 15

CASE 9

IN RE VINAY CHANDRA SHARMA

VOL. 22(1) 1995 IBR 118

(Kuldeep Singh, J.S. Verma and P.B. Sawant, JJ.)

The contemner Vinay Chandra Sharma was a senior advocate practicing before
the Allahabad High Court. He was also a member and office bearer of several
legal bodies including the Bar Council of India, of which he was the Chairman at
the material time.

One Shri S.K. Keshote, Judge of the Allahabad High Court made a report to the
Acting Chief Justice of the High Court regarding the behaviour of the contemner
during an argument before him. As per the report, the contemner was
representing in a case which was posted for admission before a division bench
comprising of Shri Keshote and another senior judge. During the hearing,
Keshote, J. asked the contemner under what provision of law had the trial court
passed the impugned order. On this, the contemner got infuriated and started
shouting at the judge. He threatened him saying that no judge can dare ask him
such a question, and he could see that the judge is transferred or impeachment
proceeding to remove him is brought in the Parliament. The contemner also
mentioned that he had done away with many judges like him. In short, the
contemner abused the judge in all ways except abusing him of his mother and
sister.

The report was forwarded by the Acting CJ of the Allahabad HC to the CJ of

India. The CJ of India took a serious note of the incident and constituted a
bench of three judges to hear the case or alternatively ordering inquiry in the
matter. The bench issued notice to the contemner directing him to appear before
it and show cause why action should not be taken against him for contempt of
court.

The contemner appeared before the Court and filed his affidavit with two
applications, one for discharging the Show Cause Notice and the other for taking
action against Keshote J. for committing contempt of his own court.
 16

In his affidavit the contemner alleged that he had not committed any act alleged
against him. On the contrary, the judge himself had told the contemner that the
case filed by him was liable to be dismissed and he would set aside the order of
the trial court in toto. To this the contemner had objected saying that the judge
could not dismiss the case without hearing him and also that the judge could
not set aside that portion of the order of the trial court which was not challenged
before him. This had provoked the judge and he told that he did not opt for
Allahabad. He wanted to be posted at Gujarat or HP. But against his will the CJ
of India had posted him at Allahabad. To this the contemner had asked whether
the judge wanted to create a scene in the court in order to get himself
transferred from Allahabad. The contemner had quoted a previous incident in
which a judge was transferred from Allahabad because he could not establish
proper rapport with the Bar. After this, when the contemner tried to press his
case the judge lost his temper and told that he was from bar and could resort to
goondaism if the need be. He had also dictated the order setting aside the entire
order of the trial court. But the senior judge on the Bench intervened and the
case was transferred to a different bench which passed an order favourable to
the contemner. He contended that he had not committed any contempt of court,
but in fact it was the judge who had committed the contempt of his own court.
The whole Allahabad Bar was witness to this. He submitted that it was the duty
of an advocate to fight his client’s case bravely and fearlessly. If an advocate is
punished for contempt of court because he tried to save his dignity and fight his
client's case bravely, it will have a very bad impact on the whole Bar of India.

The Supreme Court asked the contemner to file another affidavit showing
further facts and directed him to file affidavit of any other person or persons
verifying the facts mentioned by the contemner in his previous affidavit.

The contemner filed another affidavit challenging the very jurisdiction of the
Supreme Court to hear the case of contempt of High Court. He contended that
art. 129 of the constitution gave jurisdiction to the Supreme Court to hear the
cases of its own contempt. High Court was empowered to hear cases of contempt
of itself and the court subordinate to it. He contended that the judge himself
could have taken the matter in his hand. But on the contrary, he had referred
the matter to the Supreme Court through the Acting CJ and had gone to Delhi
to meet “meaningful people” there. This itself showed that the matter was not
straight.
 17

The Supreme Court had the following three questions before it.

1. Whether the Supreme Court had jurisdiction to hear the case of contempt of
a High Court.

2. Whether the application for discharge of Show Cause Notice or in the

alternative, for Inquiry into the matter, filed by the contemner could be
allowed.

3. Whether the contemner was guilty of contempt of Court.

4. What punishment could be imposed on the contemner.

The Supreme Court discussed the law of contempt in detail and held that it had
wide powers to hear the cases of contempt of courts. Being a superior court of
record, it had powers to hear cases of contempt not only of itself, but also of the
courts subordinate to it.

Coming to the second point, there were two different versions of facts placed
before the Supreme Court. On version was that of the judge and the other that
of the contemner. The Court had given an opportunity to the contemner to file
affidavits of other witnesses. This was not utilised by the contemner. Therefore,
the supreme Court had to believe the version of the judge against that of the
contemner. Further, the very way in which the contemner had drafted the
affidavit showed that he had no respect for the judge. The fact that he had
resented to the question put by the judge and told him that a judge was
transferred for not establishing proper rapport with the Bar was not proper
enough. Therefore, there was no question of discharging the show cause notice.

Further, there was no tradition of summoning the judge against whom the
contempt was committed, for inquiry. The procedure in such cases being a
summary procedure, the statement of the judge is sufficient for the purpose. It
is not necessary to cross examine the judge in respect of the facts stated by him
in his report. The contemner's interest is sufficiently safeguarded by other
procedural guarantees, such as framing of proper charge and giving him
opportunity of being heard in his defence. Calling upon the judge for cross
examination would cause further complications. Though the judge himself could
have taken cognizance of the case, he had preferred to refer it to the Supreme
Court in order to comply with the rules of natural justice which say that the
 18

same person cannot be complainant, witness, prosecutor and judge in the same
case.

In view of the above facts there was no doubt that the contemner had committed
contempt of the court as alleged by the judge. The court observed that the
contemner had failed to understand the real scope of his duties as an outspoken
and fearless member of the bar. Barzeness is not outspokenness and arrogance
is not fearlessness. Humility is not servility and politeness is not lack of dignity.

Therefore, the court punished him with simple imprisonment for a period of 6
weeks. The punishment was suspended for a period of 4 years and was to be
activated in case the contemner was convicted for contempt of court within the
said period. The contemner was also suspended from practice for 3 years and in
consequence all the elective and nominated posts held by him in his capacity as
advocate were held to be vacated by him from immediate effect.
 19

CASE 10

SUPREME COURT BAR ASSOCIATION VS. UNION OF INDIA & ANR.

VOL. 25(2) 1998 IBR 137

(S.C. Agarwal, G.N. Ray, A.S. Anand, S.P. Bharucha and S. Rajendra Babu, JJ.)

Shri Vinay Chandra Mishra, advocate of Allahabad High Court and the
Chairman of Bar Council of India was alleged to have committed the contempt of
court by threatening a judge of the Allahabad High Court during the hearing of a
case. The case was heard by a Full Bench of the Supreme Court comprising of
three judges. The Full Bench, after hearing the contemner convicted him of the
offence alleged and sentenced him to undergo simple imprisonment of 6 weeks.
The Bench also suspended him from practice for a period of 3 years. This order
of suspension caused alarm in the legal circle and as a result, the Supreme
Court Bar Association filed this Writ Petition challenging the powers of the
Supreme Court to suspend or otherwise punish an advocate for misconduct. The
main contention of the Petitioner was that it is the exclusive domain of the Bar
Council to punish an advocate for misconduct and the Supreme Court or any
other Court had no original jurisdiction in the matter. The order of the Supreme
Court suspending the advocate for misconduct amounted to excess of
jurisdiction and encroachment upon the jurisdiction of the statutory body, viz.,
the Bar Council.

The above case was heard by a larger bench of the Supreme Court comprising of
five judges, who discussed the jurisdiction of Supreme Court in contempt cases
and the power of the Supreme Court to impose punishment for contempt of
court.

The Court observed that the suspension of an advocate from practice is a

punishment which can be given for misconduct of the advocate. The same can
be given under the Advocates Act. When the Supreme Court is hearing a case of
contempt of Court, the issue of misconduct is not before it. The two are totally
different and distinct aspects. The Court cannot take over the jurisdiction of the
Bar Council to punish an advocate for misconduct under Advocates Act while
exercising its jurisdiction under the Constitution in respect of contempt of court.
 20

The power of Supreme Court is no doubt quite wide, but yet it is not unlimited.
The Court cannot expand it to include the power to determine whether an
advocate is also guilty of professional misconduct and punish him for the same
in the same proceeding. The contempt proceedings are summary proceedings
while the Advocates Act prescribes formal proceedings for hearing the matters of
misconduct. It would be wrong to throw this procedure in air and summarily
decide the matter of misconduct and punish the advocate.

Supreme Court observed that the conduct of Vinay Chandra Mishra was highly
contumacious and even atrocious. It was unpardonable. It is also true that his
act amounted to misconduct. Therefore, he was punished for misconduct by the
Supreme Court. But while doing so, the Supreme Court vested itself with a
jurisdiction when it had none. The proper course for the court would have been
to refer the matter to the Bar Council of India, and if the Bar Council of India
did not take any action against the concerned advocate, the Supreme Court
might have exercised its appellate jurisdiction under section 38 of the Advocates
Act read with art. 142 of the Constitution, and by exercising suo motu powers to
transfer the matter to itself the Supreme Court could have punished the
contemner for misconduct after adopting the proper procedure laid down under
the Advocates Act.

Therefore in the result, the Writ Petition succeeded.

 21

SUMMARY OF CASES

1. In the Matter of D, An Advocate

Facts: 1. The advocate was prosecuted under the Bombay Prohibition Act.
2. He was held guilty by the Magistrate and was sentenced to RI of 1 month
and fine of Rs. 201.
3. Magistrate reported to the High Court that the Advocate misbehaved in
Court during the Proceedings.
4. Bombay High Court appointed a Tribunal to try the case of misconduct
against the Advocate.
Misconduct: 1. Professional misconduct – misbehaviour in the Court.
2. Other Misconduct – Offence under Bombay Prohibition Act.
Punishment: The tribunal held the Advocate guilty of the first charge, because the
Advocate himself admitted it. The tribunal held him not guilty of the second
charge as offence under Baombay Prohibition Act did not involve moral
turpitude.
Appeal: Appeal to Supreme Court – Did not succeed.

2. P.J. Ratnam vs. D. Kanikaram and Others

Facts: 1. In a suit for possession of lands, the Advocate represented the plaintiff.
2. During the First Appeal, the crops of the disputed lands were sold and the
money was deposited in the Court.
3. In Second Appeal the Advocate’s client applied for that money. The
application was allowed.
4. The money was released by the Court through cheque in the name of the
Advocate.
5. The Advocate did not inform the client about the money and
misappropriated it.
Misconduct: Professional Misconduct – Misappropriation of client’s money.
Punishment: Bombay High Court suspended the Advocate from practice for a period of 5
years.
Appeal: Appeal to Supreme Court – Did not succeed.
 22

3. N.B. Mirzan vs. The Disciplinary Committee of Maharashtra State Bar

Council
Facts: 1. Advocate took Rs. 975 from his client’s wife for the purpose of depositing
in Court.
2. He did not deposit the money in Court.
Misconduct: Professional Misconduct – Misappropriation of client’s money.
Punishment: DC of Maharashtra Bar Council debarred the Advocate from practice.
Appeal: Appeal to BCI – BCI upheld the conviction, but reduced the sentence to
suspension for a period of 5 years with a condition that the Advocate should
refund the client’s money within 2 months.
Appeal to SC – SC upheld the conviction of both DCs and the punishment of
BCI.

4. Chandra Shekhar Soni vs. Bar Council of Rajasthan and Others

Facts: 1. Advocate’s client and client’s wife were assaulted and sustain head
injuries.
2. The Doctor who examined them did not find any serious injuries and
referred them to specialist.
3. Advocate advised the client to get favourable report from the specialist by
paying Rs. 300.
4. He took money from the client to bribe the specialist and wrote a letter to
the specialist requesting him to give favourable report to the client.
Misconduct: Professional Misconduct – Taking money to bribe the specialist.
Punishment: DC of Rajasthan SBC suspended the Advocate from practice for a period of 3
years.
Appeal: Appeal to BCI – Did not succeed.
Appeal to SC – SC agreed with conviction of both DCs but found the
sentence too severe for a junior member of the Bar. Therefore, SC reduced
the suspension to 1 year.
 23

5. V.C. Ranga Durai vs. D. Gopalan

Facts: 1. The Advocate was engaged to file 2 cases for recovery of Rs. 15,000 and
Rs. 5,000, respectively.
2. After few days the Advocate told the client that the suits were decreed in
his favour and revovered Rs. 2,555 And Rs. 855 towards fees and
expenses.
3. Later on the client found the suits were never filed, and therefore, there
was no question of decrees.
Misconduct: 1. Professional Misconduct – Negligence in filing suit.
2. Professional Misconduct – Misrepresentation.
Punishment: The DC of the State Bar Council found him guilty.
Appeal: Both the appeals did not succeed.

6. E.M.S. Nambudiripad vs. T. Narayanan Nambiyar

Facts: 1. The former Chief Minister of Kerala delivered a public speech criticising
the judiciary and the judges of India. He said that they favoured rich
people, and poor people did not stand any chance of getting justice.
2. He referred to the theories of Karl Marx and Frederick Engels in his
support.
Charge: Contempt of Court by scandalising the judiciary, because the speech had the
tendency of causing loss of public faith in the judiciary.
Defence: 1. Freedom of speech guaranteed under art. 19 of the Constitution.
2. Fair criticism of judiciary not amounting to contempt of court u/s 4 of the
Contempt of Courts Act, 1971.
Punishment: High Court found the contemnor guilty of the offence charged and imposed a
fine of Rs. 1,000 upon him. In default of fine there would be imprisonment of
1 week. (Majority decision 2:1).
Appeal: Supreme Court upheld the conviction given by HC and observed that
1. Freedom of speech under art. 19 of the Constitution was not an
unrestricted freedom.
2.The criticism was not fair criticism, because it was politically motivated
and the contemnor sought to take advantage by making that statement.
The Supreme Court was, however, pleased to reduce the sentence to a fine of
Rs. 50 and imprisonment of 1 week in default of the fine.
 24

7. In Re An Advocate
Facts: • The advocate filed two suits:
1. For specific performance of an agreement of sale of an immovable
property in favour of a client.
2. For recovery of two bearer cheques issued to the same person by
another client.
Thus, both his clients were plaintiffs and the defendant in both suits was
the same person.
• Later on the Advocate withdrew both the suits on the instructions of the
first client in order to favour him, without the knowledge or consent of the
second client.
Misconduct: Professional Misconduct – Withdrawal of suit without client’s instructions.
Punishment: Karnataka State Bar Council held the Advocate guilty of misconduct.
Appeal: Appeal to BCI did not succeed.
In appeal to SC the contention of the Advocate was that the DC of SBC did
not frame charge in the case. SC agreed with this contention as the trial
before DC was quasi criminal in nature. Therefore, the case was remanded to
the SBC for fresh trial. As the matter was subjudiced, the SC ordered that the
name of the Advocate should not be disclosed.

8. Bar Council of Maharashtra vs. M.V. Dhabolkar and Others

Facts: 1. Few Advocates used to solicit cases by standing near the gate of the
Bombay High Court premises.
2. They used to snatch briefs from the prospective clients. Sometimes they
fought among themselves for files.
3. High Court brought this matter to the notice of Maharashtra State Bar
Council and instructed to take action.
Misconduct: Professional Misconduct – Lowering the reputation of the profession in the eye
of the public.
Punishment: Shri Kelawala and 15 others were found guilty and were suspended for a
period of 3 years by the SBC.
Appeal: Appeal to BCI – Did not succeed.
Appeal to SC – Supreme Court viewed the matter sympathetically and issued
proper orders in different cases.
 25

9. In Re Vinay Chandra Sharma

Facts: 1. The advocate who was the Chairman of BCI had filed a case before the
Allahabad HC.
2. When Hon’ble Shri Keshote, J., asked him under what provision of law the
case was filed, the Advocate abused the judge and threatened him.
3. The matter was referred to the Supreme Court of India.
Charge: 1. Contempt of Court.
2. Professional Misconduct – Misbehaving in the Court.
Punishment: Supreme Court held the contemnor guilty on both counts and simple
imprisonment for a period of 6 months for Contempt of Court (the sentence
was suspended for a period of 4 years and was to be activated if the contemnor
repeated the behaviour). The Advocate was also suspended from practice for 3
years for misconduct.

10. Supreme Court Bar Association vs. Union of India and Others
Facts: • Vinay Chandra Sharma, the Chairman of BCI was tried and punished by
SC for contempt of court and also for professional misconduct.
• SCBA filed this writ petition challenging the authority of SC to punish for
misconduct.
Order: The writ petition was allowed by SC, as the Advocates Act gives the authority
to punish an advocate for misconduct to the Bar Council only and not to the
Supreme Court or any other body.