Summary
The Supreme Court quashed disciplinary proceedings against two advocates initiated by the Bar Council of Maharashtra and Goa on complaints by opposing parties. It held that a State Bar Council must record reasons to believe that an advocate is guilty of misconduct before referring a complaint to its Disciplinary Committee under Section 35 of the Advocates Act, that a cryptic reference order is invalid, and that merely identifying a party or deponent does not amount to misconduct. Costs were imposed on the Bar Council and on one complainant.
Issues
- Whether the Supreme Court should interfere under Article 136 although the appeal arose from an interim stay order of the High Court in a pending writ petition.
- Whether an advocate who did not represent the complainant, and only identified the opposite party in consent terms, can face disciplinary proceedings for professional misconduct at the complainant's instance.
- Whether a State Bar Council's order referring a complaint to its Disciplinary Committee under Section 35(1) without recording reasons or the gist of the allegations is valid.
- Whether an advocate who identifies the deponent of an affidavit becomes responsible for the truth of its contents.
Provisions considered
- Section 35(1), Advocates Act, 1961Read as requiring the State Bar Council, on receipt of a complaint, to form and record a reason to believe that an advocate on its roll is guilty of professional or other misconduct before referring the case to its disciplinary committee. A reference order that merely states a prima facie case is made out, without discussing the allegations, was held to violate Section 35(1). (¶¶ 29, 32, 33, 34, 35, 37, 38, 39)
- Article 136, Constitution of IndiaAlthough the appeal was against an interim order and the parties would ordinarily be relegated to the pending writ petition, the Court invoked Article 136 to quash the disciplinary complaint altogether in view of the glaring admitted facts. (¶ 28)
Held
- Ordinarily the existence of a professional (jural) relationship between the complainant and the advocate is a precondition for invoking disciplinary jurisdiction for professional misconduct; prosecuting an advocate at the instance of the opposite party in litigation, where he never acted for the complainant, is impermissible. (¶¶ 32, 33)
- An advocate who merely identified the plaintiff's authorised representative in consent terms that remain undisturbed cannot be proceeded against under Section 35; even if he had represented that party, the acts attributed to him, taken at face value, would not amount to misconduct, professional or otherwise. Consent terms accepted by the court and never recalled cannot be questioned in such proceedings. (¶¶ 29, 30, 31, 34)
- Recording of reasons to believe that the advocate has committed misconduct is a sine qua non for referring a complaint to the Disciplinary Committee. Because a reference has serious consequences for an advocate's career and reputation, an order that does not even refer to the gist of the allegations shows non-application of mind and is contrary to Section 35(1). (¶¶ 35, 36, 37, 38, 39)
- An advocate does not become privy to the contents of an affidavit merely by identifying the deponent; a complaint seeking to hold the advocate liable for alleged false statements in such an affidavit was without substance and malicious, and the Bar Council's registration and reference of it bordered on perversity. The High Court rightly quashed it in writ jurisdiction. (¶¶ 52, 53, 54, 55)
Result
In the Bar Council's appeal, the complaint against the first respondent-advocate and all proceedings on it were quashed, the pending writ petition was closed, and costs of Rs. 50,000 were imposed on the Bar Council, payable to that advocate within four weeks. The connected special leave petitions were dismissed with costs of Rs. 50,000 each on the complainant and the Bar Council, payable to the second advocate.