LECTURE No. 31 TO 34

CASE LAWCASE LAW

Pravin C Shah V K.A. Mohd. Ali,Pravin C Shah V K.A. Mohd. Ali,(2001) 8 SCC 650(2001) 8 SCC 650

Right of advocates to practice envelops a number

of acts to be performed in discharge of professional

duties. Such acts include providing counsel to

clients, giving legal opinions whenever sought,

drafting instruments, pleadings, affidavits or other

documents and participating in conferences involving

the law.

The exercise of disciplinary powers over the

Advocates is exclusively vested with the Bar

Council and this power cannot be taken away by the

High Court either by a judicial order or by making a

rule. But the right to appear and conduct cases in

the court is a matter on which the court must have

the major supervisory power. Hence, the court

cannot be divested of the control or supervision of

the court merely because it may involve the right of

an Advocate.

Court cannot be deprived of control or supervision of proceedings inside the court, merely because the right of an Advocate is involved. Power of the High Court to formulate rules for regulating the proceedings inside the court should not be confused with the right to practice law. While Bar Council can exercise control over the later, the High Court should be in control of the former.

The first thing to be done in the direction of purging a contemnor found guilty of criminal contempt is to implant or infuse in his own mind real remorse about his conduct which the court found to have amounted to contempt of court. Next step is to seek pardon from the court concerned that what he did on the ground is really and genuinely repented by him and that he has resolved not to commit any such act in future. It is not enough that he tenders an apology. The apology tendered should impress the court to be genuine and sincere.

Pallav Sheth V Custodian & others, Pallav Sheth V Custodian & others, (2001) 7 SCC 549(2001) 7 SCC 549

The power to punish for contempt of court cannot be abrogated or stultified by any provision of law but it must be exercised in consonance with validly enacted provisions of law. The procedure provided by the Contempt of Courts Act has to be followed even in any exercise of the jurisdiction by the Supreme Court under Article 129 or by the High Court under Article 215. If Section 20 is so interpreted that it does not stultify the powers under Article 129 or Article 215, then like other provision of the Contempt of Courts Act relating to the extent of punishment, which can be imposed, a reasonable period of limitations can also be provided.

Vinay Chandra Mishra’s case,Vinay Chandra Mishra’s case, (1995) 2 SCC 584 (1995) 2 SCC 584

A contemnor has no right to examine the Judge or Judges before whom contempt was committed.

Freedom of speech and expression cannot be used for committing contempt of court nor can the legal profession be practiced by committing contempt of court. There is no conflict between provisions of Articles 129 & 215 and 19(1)(a) and Article 19(1)(g) read with Articles 19(2) and 19(6) respectively.

Supreme Court is vested with the power under Article 129 to punish not only for the contempt of itself but also of the High Courts and subordinate courts. Such power is coupled with the duty to protect all the limbs of the administration of justice from those whose action create interference with or obstruction to the courts of justice. A lawyer has to be a gentleman first.

If the lawyer finds that the court is against him, he is not expected to be discourteous to the court or use disrespectful, derogatory or threatening language or exhibit temper which has the affect of over bearing the court.

If the judiciary is to perform its duties and functions effectively and remain true to the spirit with which they are sacredly entrusted to it, the dignitary and authority of courts have to be respected and protected at all cost.

Under the common law definition, “contempt of court” is defined as an act or omission calculated to interfere with the due administration of justice. This covers “criminal contempt” (i.e. acts which so threaten the administration of justice that they require punishment) and “civil contempt” (disobedience of an order made in a civil court).

Lt. Col. S.J. Choudhary V Delhi Lt. Col. S.J. Choudhary V Delhi AdministrationAdministration

AIR 1984 SC 618AIR 1984 SC 618

Advocates after accepting the brief are duty bound

to attend trial continuously from day-to-day, failing

which they would commit breach of their

professional duty.

J S Jadhav V Mustafa Hazi J S Jadhav V Mustafa Hazi Mohamed Yusuf ;Mohamed Yusuf ;

AIR 1993 SC 1535, (1993) 2 SCC 562AIR 1993 SC 1535, (1993) 2 SCC 562

An Advocate withdrew a sum of Rs. 50,379/- from the court receiver for handing it over to his client (who did not know English) in terms of a compromise decree but paid him only Rs. 18000/- on different occasions. He produced false receipts evidencing payment of the full amount. Disciplinary Committee of the Bar Council of India suspended him for two years and directed him to pay Rs. 500/- to the respondent. The Supreme Court held that the punishment should be commensurate with the gravity of the misconduct. Further in view of the established findings of misappropriation, proper punishment would be to direct that his name be struck off the rolls.

Shambu Ram Yadav V Hanuman Khatry Shambu Ram Yadav V Hanuman Khatry (2001) 6 SCC 1(2001) 6 SCC 1

An Advocate communicated to a client that a particular

Judge is open to bribery and suggested that the client

should part with money (Rs. 10000/-) to be passed onto

the Judge. The lawyer had put in 50 years in the

profession. He did not deny writing a letter but pleaded

that the services of the Judge in question had since been

terminated on account of accepting illegal gratification.

The Supreme Court held it to be a serious misconduct.

Since the Bar Councils under the Advocate’s Act have

been entrusted with the duty of guarding the

professional ethics, they have to be more sensitive to

the potential disrepute on account of action of a few

black sheep which shake the credibility of the

profession and thereby put at stake other members of

the Bar.

The credibility and reputation of the profession

depends upon manner in which the members of the

professional conduct themselves.

Bhupinder Kumar Sharma V Bhupinder Kumar Sharma V Bar Association, Pathankot Bar Association, Pathankot

(2002) 1 SCC 470(2002) 1 SCC 470The appellant, an advocate, was found to be continuously engaged in running a PCO booth and photocopying centre, both allotted under handicap person’s quota. He also was running a firm dealing with coal and bricks after his enrollment as an Advocate. There was nothing on record to indicate that the business had been handed over to his father or his brother. Order of the Disciplinary Committee of Bar Councils of India and of Punjab and Haryana held the advocate guilty of professional misconduct was confirmed by the Disciplinary Committee of Bar Council of India.

The Supreme Court of India held that having regard

to the nature of misconduct and taking note of the

handicap of the lawyer, debarring him from practice

for all time is too harsh. It was considered just and

appropriate to modify the punishment to debar him

from practice upto end of December, 2006.

Chandra Shekhar Soni V Chandra Shekhar Soni V Bar Council of Rajasthan, Bar Council of Rajasthan,

(1983) 4 SCC 255(1983) 4 SCC 255

Action on the part of an Advocate switching sides

in a criminal case was held to be professional

misconduct as it is contrary to Rule 33 of Bar

Council of India Rules.

Taking money from a client for bringing an official

to the court was held to be professional

misconduct.

Supreme Court would not generally interfere with

the concurrent findings of fact given by the State

Bar Council and Bar Council of India unless the

finding is based on no evidence or it proceeds on

mere conjectures and surmises.

Harish Chandra Tiwari V Baiju;Harish Chandra Tiwari V Baiju;(2002) 2 SCC 67, AIR 2002 SCC 548(2002) 2 SCC 67, AIR 2002 SCC 548

For determining of punishment in the case of misconduct, the factors to be taken into account are; (1) the need to cleanse legal profession of persons prone to misappropriating money of clients, and, (2) the need to prevent formation of the impression that a person admitted to the legal profession acquires immunity from punitive measures and is free to indulge in unethical activities.

When an advocate receives money from a client towards litigation expenses or for purpose of deposit in court or collects money from court on client’s behalf, the advocate holds the money in trust.

By retaining such advocate on the roll of

legal profession, it would be unsafe to the

profession. Punishment of removal of name

from roll of Advocates held to be justified in

case of misappropriation of client’s money.

M Veerabhadra Rao V Tek Chand; AIR M Veerabhadra Rao V Tek Chand; AIR 1985 SC 281985 SC 28

An Advocate committed forgery by attesting a false affidavit prepared in the name of his client to facilitate commission of a fraud to the detriment of his client by another person. He also made false statement before the Disciplinary Committee of State Bar Council. He was awarded a reprimand by the Bar Council. The Supreme Court on facts held that the advocate had committed a serious act of professional misconduct.

Supreme Court has jurisdiction to vary the order of the appellate committee, which may even prejudiciously affect the person aggrieved subject to this prerequisite that it can do so only after serving a notice to such person and after giving him an opportunity of being heard. This jurisdiction will comprehend the jurisdiction to vary the finding of the Appellate Committee.

Devendra Bhai Shankar Mehta V Devendra Bhai Shankar Mehta V Ramesh Chandra Vithal Das Sheth ;Ramesh Chandra Vithal Das Sheth ;

(1992) 3 SCC 473(1992) 3 SCC 473

An advocate took an active part in racket of financiers for defrauding and cheating aspirant loanees and the Disciplinary Committee of Bar Council of India after scrutiny and analyse of the fact in a dispassionate manner without any closed mind and bias had found him guilty having regard to serious nature of misconduct. The Supreme Court held the punishment of removal of name from state roll of Bar Council of India awarded by the committee to be justified.

A member of the legal profession who has

indulged in fraudulent activities in a calculated

manner for financial gain at the cost of an innocent

person is not entitled to continue as a member of

legal profession, which is based on the implicit

faith and confidence in the mind of the client.

Jaswant Singh V Virendra SinghJaswant Singh V Virendra Singh1995 Supp (1) SCC 3841995 Supp (1) SCC 384

In an election petition derogatory and scandalous aspersions were made by an Advocate against the Judge of a High Court where the petition was submitted for transfer of the case to the Supreme Court. The counsel of the advocate expressed his “unqualified” regret on behalf of his client. Held, the Advocate had committed contempt of court by use of objectionable and intemperate language. He is not immune from contempt charge on unqualified regret.

His apology tendered by pleading lack of understanding was not accepted. No system of justice can tolerate such unbridled licence on the part of a person, be he a lawyer, to permit himself the liberty of scandalizing a court by casting unwarranted, uncalled for and unjustified aspersions on the integrity, ability, impartiality or fairness of a Judge.

R.K. Garg V State of HP, R.K. Garg V State of HP, 1981(3) SCC 1661981(3) SCC 166

An Advocate hurled a shoe at Judge in a trial court. He was sentenced to six month simple imprisonment and fined Rs. 200/- that was imposed by the High Court. Held he was guilty of contempt, which is highly unbecoming of a practicing lawyer. But he having tendered an unconditional written apology to the trial court as well as to the Supreme Court and being deeply regretful and genuinely contrite and having suffered enough in mind and reputation, no greater purpose would be served in sentencing him to long imprisonment. Accordingly, sentence of imprisonment was reduced to one month but the fine enhanced to Rs. 1000/- to be paid over to a Legal Aid Society, if any, functioning in the State.

Rajesh Kumar Singh V Rajesh Kumar Singh V High Court of Judicature of MP, High Court of Judicature of MP,

AIR 2007 SC 2725, (2007) 14 SCC 126AIR 2007 SC 2725, (2007) 14 SCC 126

Scandalizing the court or attributing improper motive to

a Judge or scurrilous abuse of a Judge will amount to

scandalizing the court.

Principle reiterated for mode of exercise of power to

punish for contempt of court. Such power should be

invoked or exercised not routinely or mechanically but

with circumspection and restraint.

Courts should not readily infer an intention

to scandalize courts or lowering the authority

of court unless such intention is clearly

established. Such power to punish for contempt

should not be exercised where mere question of

propriety is involved.

Sanjiv Dutta V Dy. Secretary, Sanjiv Dutta V Dy. Secretary, Ministry of I&BMinistry of I&B

1995(3) SCC 6191995(3) SCC 619

A public official filed an affidavit in Supreme Court criticizing its order and casting aspersions and accusations calculated to malign the court and undermine its authority. Held, amounted to criminal contempt. Coming from the executive branch, it has the potentiality of subverting the rule of law. Unconditional apology tendered by the contemnor was not acceptable as his statements were intentional and deliberate knowing well their repercussions, being a responsible government officer.

An Advocate who had filed the affidavit in the court in this case, was also held, to have committed the contempt. The advocate who drafts and/or settles an offending document also commits contempt of court as author of the document. However, considering that in the instant case he had no opportunity to peruse the affidavit before filing the same and having regard to the fact that his conduct as practicing lawyer in the court for the last 19 years had been fair, his unconditional apology was accepted and contempt notice issued was discharged.

Court has to function freely and fearlessly

undaunted by abuses, attribution of motives,

terrorism and defiance. A Court can also

commit errors but for that law provides

internal as well as external checks to correct

the errors. The law thus provides procedure

to correct judicial errors.

State of Rajasthan V Prakash ChandState of Rajasthan V Prakash Chand1998(1) SCC 11998(1) SCC 1

It is fundamental principle of our jurisprudence and it is in public interest also that no action can lie against the Judge of a Court of Records for a judicial act done by the Judge. The remedy of the aggrieved party against such an order is to approach the higher forum through appropriate proceedings. This immunity is essential to enable the Judges of the Court of Record to discharge their duties without fear or favour, though remaining within the bounds of their jurisdiction. Immunity from any civil or criminal action or a charge of Contempt of Court is essential for maintaining independence of the judiciary and for the strength of administration of justice.

There is no action could lie against the Chief Justice acting judicially for doing something within his jurisdiction even if the order is patently erroneous and unsustainable on merits. Even under the judicial officer’s Protection Act, 1985, immunity has been given to the judicial officers in relation to judicial work done by them as well as for the judicial order made by them. Section 16(1) of the Contempt of Courts Act, 1971 does not apply to the Judges of Court of Records but only to the subordinate

judiciary.Transfer of a part-heard writ petition from a single Judge to a Divisional Bench was carried out in view of constitutional issues involved being legal and valid. The single Judge issued directions to show cause notice to the Chief Justice as to why contempt proceedings should not be initiated against him. Held, such an action was misconceived, illegal, without jurisdiction and unsustainable. The issuance of notice smacks of judicial authoritarianism and is not permissible in law.

Section 16(1) of the Contempt of Courts Act does

not apply to Judges of Court of record but only to

the subordinate judiciary. Judges are immune of

section 16(1) of the Contempt of Courts Act 1971.

Disparaging and derogatory remarks made by a

single judge against Chief Justice or brother

Judges not only indicates lack of judicial restrain

but also lack of respect for the judicial institution

and abuse and misuse of judicial authority and

amounts to contempt of court. Besides when

made recklessly (as in the instant case) it amounts

to interference with the judicial process. Such

remarks deserved to be expunged from the record.

D.P. Chadha V Triyugi Narain,D.P. Chadha V Triyugi Narain, (2001) 2 SCC 221 (2001) 2 SCC 221

The expression of a reasonable opinion or taking

a debatable or doubtful stand on an issue of law

or a mere error of judgement is not misconduct.

The term takes its colour from the underlying

intention.

Betraying the confidence of a client is a grave misconduct. However, a deliberate attempt to deceive or practice fraud on the Court is the gravest misconduct because of the prime position with advocates occupy in the administration of justice itself.

Conniving with opposite party to bring about a perpetrated compromise without authority of own client and deliberately attempt to mislead Court in accepting a position when personnel presence of party was not a mandatory requirement for verification of compromise, held, was professional misconduct.

Misconduct does not necessarily involve moral

turpitude. While discharging duty to the Court, the

lawyer should never knowingly be a part of any

deception, design or fraud.

A charge of misconduct is a serious matter for a

practicing advocate as it may cost him his career.

Therefore, allegations has to be proved to the hilt

and must leave no element of reasonable doubt.

Power of Bar Council of India to enhance punishment in appeal cannot be exercised without putting guilty advocate on notice as to the council’s intention to do so.

The advocate owes multifaceted duty when discharging professional obligation and must therefore, balance conflicting claims honestly and carefully. A point of law while settled or attempting of no controversy must not be dragged into doubt solely with a view to confuse or mislead the Judge and thereby gain an undue advantage to the client to which he may not be entitled.

A counsel, being an officer of the Court, shall

apprise the Judge with the correct position of law

whether for or against either party. He is duty

bound to state the court position of law, when it is

undisputed, even if it does not favour the client.

M Veerappa V Evelyn Sequeira, 1988 (1) M Veerappa V Evelyn Sequeira, 1988 (1) SCC 556SCC 556

A legal petitioner cannot claim exemption from

liability to be sued in respect of any laws or injury

suffered by the client due to any negligence in the

conduct of his professional duties merely by reason

of his being a legal petitioner.

SUMMARYSUMMARY

Case Law relating to judgements of Indian

Courts clearly indicates formulation of sound

legal foundation concerning statutory

expectations under the Advocate’s Act, 1961 and

the Contempt of Courts Ac, 1971.

ANY QUESTIONS