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P.C. Chaturvedi Vs. Bar Council of U.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1977CriLJ897
AppellantP.C. Chaturvedi
RespondentBar Council of U.P. and ors.
Excerpt:
.....of the income tax act and under the other acts are quite different from the one to be achieved by section 35 of the advocates act, 1961. but the learned counsel for the petitioner appears to be on strong grounds when he contended that by use of the phrase 'reasons to believe' the legislature intended to put some restriction and limitation on the power of the bar council when considering to refer the cases of advocates to its disciplinary committee. numerous decided cases of the supreme court and house of lords of england as well as of this court were cited before us by the learned counsel for the parties. the letter dated 16-5-1970 only hints at it but it is all in the realm of speculation at best. in our judgment, only an allegation to establish the truth of which further reliable..........of the resolution of the bar council and a writ in the nature of prohibition restraining the disciplinary committee appointed by the said council to further carry on proceedings against the petitioner, the petitioner awl another advocate, against whom also similar steps have been taken by the bar council of uttar pradesh, are senior advocates practising in the high court. two advocates of the high court saivsri g, c. dwivcdi and n.c. rajvanshi, who happened to be the members of the bar council of uttar pradesh, sent a letter to the president of the bar council which translated in english is as follows:sir,on 24-4-1970 in court no. 12 before hon'ble mr. justice yashodanandan and hon'ble mr. justice seth two advocates...conducted themselves in such a manner as led the two learned.....
Judgment:

K.B. Asthana, C J.

1. This is petition under Article 226 of the Constitution by a senior Advocate of this Court against the Bar Council of Uttar Pradesh Praying for a writ of certiorari for quashing of the resolution of the Bar Council and a writ in the nature of prohibition restraining the Disciplinary Committee appointed by the said Council to further carry on proceedings against the petitioner, The petitioner awl another Advocate, against whom also similar steps have been taken by the Bar Council of Uttar Pradesh, are senior Advocates practising in the High Court. Two Advocates of the High Court SaiVsri G, C. Dwivcdi and N.C. Rajvanshi, who happened to be the members of the Bar Council of Uttar Pradesh, sent a letter to the President of the Bar Council which translated in English is as follows:

Sir,

On 24-4-1970 in Court No. 12 before Hon'ble Mr. Justice Yashodanandan and Hon'ble Mr. justice Seth two advocates...conducted themselves in such a manner as led the two learned Judges to rise. It has been learnt that the said two advocates abused each other and were ready to assault each other. The behaviour and conduct of the said two Advocates comes within the mischief of Section 35 of the Advocates' Act. 1961. The Bar Council itself should issue notice and should hold a formal inquiry into the matter.

2. This letter is dated 16-5-1970. Then in a meeting of the Bar Council held on 9-6-1970 the following resolution was passed against item No. 1 on the Agenda:

On the matter being brought to the Bar Council by Sri G.C. Dwivedi and Sri N.C. Rajvanshi this Council takes suo motu cognizance of the facts regarding the alleged conduct.... Advocates, Allahabad and it is hereby resolved that the copy of the letter of Sri G.C. Dwivedi be sent to the Advocates concerned and they be required to submit their version within a month on the allegations made against them.

3. Pursuant to this resolution, the Secretary of the Bar Council sent a letter to the petitioner dated 30/31-7-1970 inviting from the. petitioner his version. It is said that a copy of the letter of the two Advocates complaining about the alleged misbehaviour was also appended. The petitioner by his letter dated 19-8-1970 sent his reply in the following words:

The application dated 16-5-1970 accompanying your letter appears to be based on hearsay. The application itself states-

Yeh pata chala hai ke upyukta demon advocates ne aapas men gali galauj ki aur marpit ki aur marpit ke liye tayyar ho gaye the.So far as the allegations about me are concerned, they are denied and it is further asserted that I did not do anything which would amount to improper conduct on the part of an Advocate.

4. As the annexure to the petition shows, similar reply was sent by the other Advocate concerned, On 13-6-1971 the Bar Council against Item No. 35 passed the following resolutions:

It was resolved that the complaint be headed as 'In the matter of Sarvsri P.C. Chaturvedi and S.N. Mulla, Advocate, Alla-liabad.

It was further decided by majority that the matter be referred to the Disciplinary Committee for disposal according to law. Sri Ram Vilas Gupta and Sri M.A. Jalil dissented.

Since the Bar Council has decided to take suo motu action, the Secretary will take necessary steps on behalf of the Bar Council.

5. The matter was then placed by the Secretary before the Disciplinary Committee. On 1-8-1971 the fallowing order was passed by the Chairman of the Disciplinary Committee.

Perused the complaint against Sarvsri P.C. Chaturvedi and S.N. Mulla, Advocates, Allahabad. It is not a case to be summarily rejected

Fix 5th September, 1971 for hearing at 11 A.M. in the High Court Bar Association, Allahabad.

Issue notice to the parties and also to the Advocate General of Uttar Pradesh as required under the law.

Then in a meeting held on 6-6-1972 the Bar Council resolved to appoint Sri A.D. Gin as an Advocate for prosecuting the two Advocates concerned before the Disciplinary Committee.

6. It appears from the affidavits exchanged that in response to a notice for appearing before the Disciplinary Committee the petitioner appeared but as the notice had not been served on the other Advocate, the Disciplinary Committee adjourned the proceedings and directed that fresh notice be issued. It was at this stage that this petition was filed in this Court.

7. The main ground raised by Sri S.P. Gupta, learned Counsel appearing for the petitioner, is that the Bar Council had' no material before it which could furnish the reason for belief that the petitioner was guilty of professional misconduct or other misconduct and in referring the case for disposal to the Disciplinary Committee the Bar Council exceeded its jurisdiction and power conferred by Section 35 of the Advocates Act, 1961. We have narrated above all the material circumstances leading the Bar Council to pass a resolution for referring the case of the petitioner along with another Advocate for disposal to its Disciplinary Committee. While the resulution of the Bar Council shows that it proceeded suo motu, the order of the Chairman of the Disciplinary Committee dated 1-8-1971, quoted above, shows that he proceeded on the complaint against the two Advocates. Now the only material which could be said to be against the two Advocates was the letter of Sarvsri G.C. Dwivedi and N.C. Kajvaushi. A reading of that letter would show that the two Advocates who were the authors of the letter were certain of this fact that on 24-4-1970 in Court No. 12 the Judges rose from the Court on account of some kind of behaviour on the part of two Advocates appearing before them. But the allegation that the two Advocates abused each other and got ready to assault each other is based on hear say, i.e., they had come to know or learnt. It is admitted on behalf of the Bar Council that beyond this letter of the two complaining Advocates, there was no other material before it which would furnish a ground to engender a belief in the mind of the Bar Council that the two Advocates concerned were guilty of professional or other misconduct, The question, therefore, would be whether the letter dated 16-5-1970 sent by Sarvasri G.C. Dwivedi and N.C. Rajvan-slii contains such material which would serve as the basis to the Bar Council to form an opinion or belief objectively that the two Advocates concerued were guilty of professional misconduct or other misconduct. The learned Counsel, Sri Chand Kishore, appearing for the Bar Council tried to urge that when the Bar Council by its first resolution decided to call for the version of the two Advocates, it wanted to satisfy itself whether there was any prima facie case made out and after hearing their version, bona fide made up its mind to refer the matter to the Disciplinary Committee by its second resolution. No rule has been pointed out to us which casts a duty on the Bar Council to call for the version of the Advocates concerned before exercising its power under Section 35 of the aforesaid Act. That the Bar Council in the instant case considered it fit to call for the version of the two. Advocates would be indicative of the fact that the Bar Council itself did not think that the laconic information contained in the letter of the complaining Advocates was itself sufficient to cause a belief in their mind that the two Advocates were guilty of professional misconduct or other misconduct for it is obvious that under the scheme of the Act affording of an opportunity to the Advocates complained against at the. preliminary stage was not for the purpose of calling upon them to set up their defence, if any, against the charges. That will be the stage before the Disciplinary Committee if the case is referred. At any rate we are not very clear in Our mind why such a step was taken as to call for the version of the two Advocates. Be that as it may, it would be seen from the reply sent by the petitioner, quoted above, that nothing fresh by way of facts came before the Bar Council. The situation after receipt of the denial from, the petitioner remained the same as it was when the Bar Council passed the first resolution on a persual of the letter of the two complaining Advocates. Thus the material before the Bar Council when it took action under Section 35 of the Advocates Act was the contents of the letter of the two complaining Advocates and nothing else. In his counter affidavit the Secretary of the Bar Council in paragraph No. 15 avers:

The source of knowledge of Sri G.C. Dwivedi and Sri N.C. Rajvanshi are matters of further evidence The complaints sent by them were sufficient in ordinary course to enable the Bar Council to refer the case for disposal to its Disciplinary Committee.

8. It cannot be doubted, therefore, that the stand of the Bar Council before us in reply to the rule nisi is that the complaint sent by the two complaining advocates was sufficient to enable the Bar Council to refer the case for disposal by its Disciplinary Committee. The controversy thus before us reduces to a consideration of the contents of the letter dated 16-5-1970.

9. We have heard at some length Sri S.P. Gupta, learned Counsel for the petitioner, and Sri Chand Kishore, learned Counsel for the Bar Council of Uttar Pradesh, and we are obliged to both the learned Counsel for the assistance they have offered at the bar. We are fully conscious that this Court should not lightly interfere with the course of action of the Bar Council constituted under the Advocates Act, 1961. The avowed object of the said Act was to create a uniform autonomous Bar in India under the disciplinary control of the Indian Bar Council and the State Bar Councils. The Policy underlying the said Act is that the legal profession itself is the best Judge of its own efficiency and professional morality. The Bar Council of the State and then of the whole of India are the supreme bodies in respect of education, enrolments and discipline in the legal profession. That being the object and policy the court should loath to interfere particularly in the field of disciplinary actions against the members of the legal profession taken by the Bar Council unless it finds that the jurisdiction and power conferred by the Act is being exercised beyond the law or exceeds its bounds. Moreover, in the sphere of disciplinary action taken against the erring members of the profession what factors would weigh with the Bar Council, which is constituted of professional man elected by the whole body of the Bar cannot be conveniently categorised and anticipated. Viewed in this back ground, we caution ourselves not to take a very strict and narrow view of the powers of the Bar Council in sending cases of the Advocates to its Disciplinary Committee. We are aware that in the Bar many a kind of practices unfortunately are being resorted to in newer and noveler ways and methods. It would, therefore, not be proper to lay down a law by interpreting or construing Section 35 of the said Act, which would be so narrow or rigid, so as to create such limitations on the powers of the Bar Council that the very purpose for which it has been constituted is frustrated. We are, therefore, not in agreement with the argument of the learned Counsel for the petitioner when he tried to persuade us to construe Section 35 of the Act because of the use of the words 'reasons to believe' in a manner as Section 147 of the Income Tax Act has been construed. It is obvious that the object to be achieved under Section 147 of the Income Tax Act and under the other Acts are quite different from the one to be achieved by Section 35 of the Advocates Act, 1961. But the learned Counsel for the petitioner appears to be on strong grounds when he contended that by use of the phrase 'reasons to believe' the Legislature intended to put some restriction and limitation on the power of the Bar Council when considering to refer the cases of Advocates to its Disciplinary Committee. The phrase 'reasons to believe' occurs in many statutes and it has received judicial notice from the highest courts both here and in England. Numerous decided cases of the Supreme Court and House of Lords of England as well as of this Court were cited before us by the learned Counsel for the parties. In the case of Barium Chemicals Ltd. v. Co. Law Board, : [1967]1SCR898 the Supreme Court was considering the phrase 'reasonable ground to believe' a pharse synonymous with 'reasons to believe.' At p. 324 of the report, the learned Judge observed:

The words 'reasonable grounds to believe' were considered thus to be a restraint on administrative power just as compliance of the rule of natural justice in a quasi judicial power which otherwise would render the power arbitrary.

10. There is no doubt in our mind that the Bar Council performs an administrative function when exercising power under Section 35 of the Advocates Act. When the matter goes before the Disciplinary Committee then quasi judicial proceedings begin The legislature in its wisdom thus appears not to have conferred this administrative power on the Bar Council in its widest amplitude leaving it unrestrained. By laying down that the Bar Council can refer a case when it has reason to believe that an Advocate is guilty of professional misconduct or other misconduct, a clear intention on the part of the Legislature is manifest that some kind of restraint on this administrative power was being imposed.

11. Having thus delineated above the scope and sphere of the power of the Bar Council in referring a case of an Advocate to its Disciplinary Committee, we have now to find whether the material contained in the letter of the two complaining Advocates dated 16-5-1970 was sufficient to cause a reasonable belief in the Bar Council for referring the instant case to its Disciplinary Committee. The word 'belief' is something which is distinct and quite different in its nature from the word 'suspicions' A man can on mere rumours or gossip, if he is gullible, form an opinion that the facts and circumstances which are being gossiped and rumoured are true, the law does not recognise or give sanction to the formation of a belief of this nature, The law does not recognize the vice of gullibility. It has always adopted the test of a reasonable man endowed with ordinary average 'intelligence understanding and common sense.' The information furnished by the letter of the two complaining Advocates is only this- 'Yaha Pata Chala hai'. The letter even does not indicate the source. The first part of the letter which can be said not to be something based on hear say only accuses the petitioner and the other Advocate- that their behaviour led to the learned Judges rising. It does not narrate what kind of that behaviour was. But when the letter comes to the nature and kind of the behaviour and conduct attributed, then the authors say that they had learnt and heard it. The Judges might rise for any other reason also. At least on the record of this case there is nothing to show that it was some kind of misbehaviour on the part of Advocates that led to the rising of the Bench. The letter dated 16-5-1970 only hints at it but it is all in the realm of speculation at best. The Bar Council before sending a reference even did not care to find out from this Court as to what kind of incident took place on 21-1-70 in Court No. 12. Such an information could always be available from the Bench Secretary and it was not necessary to refer even to the learned Judges. The two complaining Advocates could have also supplied the names of other Advocates in the Court who actually were eye witnesses of the alleged incident. All this would have furnished objective material on the basis of which the Bar Council could have acted. The letter dated 16-5-1970 only records the event that something happened. No such material was furnished before the Bar Council which after a thorough inquiry if established would bring home the guilt to the accused Advocates. Whenever the law requires any authority or person to take action, when he has reason to believe that the circumstances under which the action should be taken are present or are in existence then those facts and circumstances must come within his knowledge and also there must be some material which would help in recording a rinding or establishing those circumstances or fact. In the case of Nakkuda Ali v. M.P. De Jayaratne, (1951. AC 66) the Privy Council observed:

The words 'where the Controller has reasonable grounds to believe that any dealer is unfit to be allowed to continue as a dealer', were to be treated as imposing a condition that there must in fact exist such reasonable grounds, known to the Controller, before he could validly exercise the power of cancellation.

12. Here the Bar Council before exercising the power of referring this case to its Disciplinary Committee must have material, before it i.e., must have knowledge of that material which would induce it to think as a reasonable body of men that an Advocate is guilty of professional misconduct or other misconduct. It is difficult merely on a hear-say information, which would be nothing more than a gossip or a rumour going round in the corridors of the Court to form an opinion that the Advocate who is subject of that rumour or gossip is guilty of professional misconduct or other misconduct. There is no doubt that before a Court while it is sitting if the counsel abuse each other and prepare themselves to assault each other that would be a very reprehensible conduct on their part. Such a conduct will bring down the dignity of the Court, i.e., of all the Judges, the lawyers and the staff connected with it. It may not be strictly speaking a professional misconduct but would come within the scope of other misconduct hut what is required by law is that the Bar Council before it could act under Section 35 of the said Act should have before it grounds i.e., material facts which with some certainty would lead to the conclusion that the misconduct was actually committed and there was some credible evidence in support of it on the record. In our judgment, only an allegation to establish the truth of which further reliable evidence is necessary cannot furnish a reasonable ground by itself to induce a belief that the person to whom such allegation is attributed is guilty of the offence which those allegations constitute. Whenever the Statute requires an action to be taken on reasonable belief, it does not permit any action to be taken only with a view to find out the guilt of the offence which those allegations constitute. Whenever the Statute requires an action to be taken on reasonable belief, it does not permit any action to be taken only with a view to find out the guilt after a roving enquiry. This is exactly what the Bar Council has done in the instant case as its Secretary in his counter affidavit has averred that the evidence would come at the inquiry, Under Section 35 of the Advocates Act, we think, it is the Bar Council at the preliminary stage which has to test the probative strength of the evidence also before taking action. What we have said above, is sufficient to demonstrate that the Bar Council was under a misconception as to the scope of its power vested in it by Section 35 of the Advocates Act and proceeded as if mere allegations made by its two members on hear-say was sufficient for it to act. We are compelled to hold that the resolution of the Bar Council dated 13-6-71 was unwarranted and violates the mandate of Section 35 of the Advocates Act 1961. It has, therefore, to be quashed. The consequence of quashing of this resolution would be that the Disciplinary Committee will have no jurisdiction to carry on the inquiry against the petitioner and the petitioner will be entitled to a writ of prohibition.

13. The result is that this petition is allowed. The resolution dated 18-6-71 (annexure No. 5 to the writ petition) is quashed. A writ is issued to the Bar Council of Uttar Pradesh and its Disciplinary Committee not to proceed with the inquiry against the petitioner.

14. In the circumstances of the case, we direct the parties to bear their own costs.


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