legal ethics by kailash rai | Contempt Of Court | Advocate

April 16, 2018 | Author: Anonymous | Category: Documents
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1: INTRODUCTION. Legal ethics, accountability of lawyers and bench-bar relations is one of the four practical training p...

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1: INTRODUCTION Legal ethics, accountability of lawyers and bench-bar relations is one of the four   practical  pract ical training papers included in the new syllabus syllabus for the LL.B degree. It requires the students to study thoroughly the various concepts like court, contempt of court, court of record, legal ethics, professional professional or other misconduct, misconduct, etc. It requires the students to study the provisions of the Advocates Act, Contempt of court Act and also of the Constitution relating to the contempt of court.

1.1Legal Ethics

Legal ethics may be taken to mean the body of rules and practice which determine the  professional  professio nal conduct of the members of bar. The main object of legal ethics has well  been explained by the Chief Justice Marshall ± ³The fundamental aim of Legal Ethics is to maintain the honour and dignity of the Law Profession, to secure a spirit of  friendly co-operation between the bench and the brain the promotion of the highest standards of justice, to establish honorable and fair dealing of the counsel with his client, opponent and witness, to establish a spirit of brother-hood in the bar itself and to secure that t hat lawyers discharge their respon re sponsibilities sibilities to the co mmunity mmunity generally.´

Actually Actuall y the legal profession is a profession of great great honour. It has been been created not for private gain but for for public good.

It is a partner with the judiciary in the

administrat administration ion of justice. An advocate advocate is an officer officer of the court. The court court acts on his statements. To maintain the honour of the legal profession, the Advocate Act has been passed and the Bar Councils Councils have been established. The State Bar Councils Councils and the Bar Council of India can punish the advocate for the professional or other misconduct. From the   preamble of the rules made by the Bar Council of India it becomes clear that these rules contain canons of conduct and etiquette adopted as general guides and the specific mentioned thereof should not be construed as a denial of the existence of  other equally imperative, though not specifically mentioned.

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The expression µprofessional or other misconduct¶ under section 35 of the Advocates Act is not confined to the acts committed in professional professiona l capacity. capac ity.

Even the

misconduct in capacity other than professional capacity is included within the meaning of the expression µprofess µprofessional ional or other misconduct¶. misconduct¶. The Bar Council of  India has made several rules so as to specify the duties of an advocate towards the court, client, opponent and colleagues, etc.

1.2 Accountancy

The rule provides that an advocate should keep accounts of the client¶s money entrusted to him and the account should show show the amounts r eceived from the client or  on his behalf, the expenses incurred for him and the debits made on account of fees with respective respective dates and all other necessary particular. particular. Where moneys moneys are received from or on account of a client, the entries in the accounts should contain a reference as to whether the amounts have been received for fees or expenses and during the course of the proceeding. procee ding. No advocate shall expect with the consent in writing of the client concerned, be at liberty to divert any portion of the expenses towards fees. The liberty to appropriate towards the settled fee due to him. Where the fee has been left unsettled the advocate shall be entitled to deduct, out of any moneys of the client remaining in his hands, at the termination of the proceeding for which he has been engaged, the fee  payable under the rules of the court in force for the time being or by then settled and the balance (if any) shall be refunded to the client. A copy of the client¶s account shall be furnished to him on demand provided the necessary copying charge is paid. Rule makes it clear that an advocate shall not enter into arrangements whereby funds in his hands are converted into loans.

1.3Accountability

The advocate has been made accountable. Section 35 of the Advocates Advocate s Act Act provides that where on receipt of a complaint or otherwise a State Bar Council has reason to   believe that any advocate on its roll has been guilty of professional or other  misconduct, it shall refer the case for disposal to its its disciplinary committee. committe e. The disciplinary committee can punish the advocate for the professional or other  -2-

The expression µprofessional or other misconduct¶ under section 35 of the Advocates Act is not confined to the acts committed in professional professiona l capacity. capac ity.

Even the

misconduct in capacity other than professional capacity is included within the meaning of the expression µprofess µprofessional ional or other misconduct¶. misconduct¶. The Bar Council of  India has made several rules so as to specify the duties of an advocate towards the court, client, opponent and colleagues, etc.

1.2 Accountancy

The rule provides that an advocate should keep accounts of the client¶s money entrusted to him and the account should show show the amounts r eceived from the client or  on his behalf, the expenses incurred for him and the debits made on account of fees with respective respective dates and all other necessary particular. particular. Where moneys moneys are received from or on account of a client, the entries in the accounts should contain a reference as to whether the amounts have been received for fees or expenses and during the course of the proceeding. procee ding. No advocate shall expect with the consent in writing of the client concerned, be at liberty to divert any portion of the expenses towards fees. The liberty to appropriate towards the settled fee due to him. Where the fee has been left unsettled the advocate shall be entitled to deduct, out of any moneys of the client remaining in his hands, at the termination of the proceeding for which he has been engaged, the fee  payable under the rules of the court in force for the time being or by then settled and the balance (if any) shall be refunded to the client. A copy of the client¶s account shall be furnished to him on demand provided the necessary copying charge is paid. Rule makes it clear that an advocate shall not enter into arrangements whereby funds in his hands are converted into loans.

1.3Accountability

The advocate has been made accountable. Section 35 of the Advocates Advocate s Act Act provides that where on receipt of a complaint or otherwise a State Bar Council has reason to   believe that any advocate on its roll has been guilty of professional or other  misconduct, it shall refer the case for disposal to its its disciplinary committee. committe e. The disciplinary committee can punish the advocate for the professional or other  -2-

misconduct. Where on receipt rec eipt of complaint complaint or otherwise the Bar Council Council of India has reason to believe that any advocate whose name is not entered on any State Roll has   been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee. This committee can punish the advocate for such misconduct the professional or other misconduct includes the breach of duties specified specifie d by the rules made by the Bar Council of India. The breach of duty has thus  been made punishable.

1.4Contempt of Court

Contempt of court is a serious challenge to the majest majest y of law. Sometimes Sometime s it it is committed in ignorance i.e, the contemnor has no knowledge as to the meaning of the contempt. Consequently, a definition definit ion of the expression µcontempt of c ourt¶ is of much utility, but unfortunately there is no clear and definite definition of this expression. The Contempt of Court Act, 1971 defines it as a civil contempt or criminal contempt. Actually, Actually, it is not not definition definition but but classification of contempt contempt o f court. court.

Actually, Actually,

contempt of court cannot be defined exhaustively but a workable definition is   possible. possible. It is an act or omission omission which which interferes or tends tends to interfere interfere with the administration of justice, provided that if the interference with the administration of   justice is in the form of disobedience to the order of the court or breach of undertaking given to the court, it will amount to contempt o court only when the obedience or   breach is willful.

Civil contempt has been defined as willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court. Criminal contempt of court means the publication of any matter matter or  doing of any other act which has resulted or likely to result in any one of the following consequences(1) Scandalizes or tend to scandalize or lowers or tends to lower the authority of any court; (2) Prejudices or interferes or tends to interfere with, the due course of any judicial  proceeding; or  -3-

(3) Interferes or tends to interfere with or obstruct or tends to obstruct the administration of justice in any manner e.g. interference with the court¶s officers including the advocate discharging the professional function, interference with the  parties, interference with the witness, abuse of the process of the court, etc. The contempt of court act makes provision in respect of the punishment for the contempt of court. Section Sect ion 12 of the act provides that save or otherwise otherwise expressly expre ssly   provided in this act or in any other law, a contempt of court may be punished with simple imprisonment for a term which may extend to six months or with fine which may extend to 2000 rupees or with both.

The contempt of court Act provides remedies to the person charged with the contempt of court court against the order of punishment. According to section 12 of the act the contemnor may tender apology to the court and if the court is satisfied that it has been made with real feeling of repentance it may remit the punishment awarded for the contempt. Section 19 provides provides that an appeal shall lie as of right form any order or  decision of the high court in the exercise exerc ise of its jurisdiction to punish for contempt (a) Where the order or decision is that of a single judge, to a Bench of not less than two judges of the Court; (b) Where the order or decision is that of a bench, to the Supreme Court: Provided that where the order or decision is that of a judicial commission in any union territory, such appeal shall lie to the Supreme Court.

1.5Art of Advocacy

Justice Abbot Parry has mentioned several lamps of advocacy ± honesty, courage, industry, wit, eloquence, judgment and fellowship. An advocat advocatee should be honest honest and man of integr integrity ity and and character. An advocate advocat e who who is straightforward straight forward and possesses these three jewels is appreciated appreciat ed by the court and the client alike. Mannerism also  plays important role in getting gett ing success in the legal legal profession. He should be respectful respectfu l to the court and and try to win the confidence of the judge. He should not interrupt interrupt the  principles  principles of natural justice. The principle principle of natural justice is part of o f the guarantee guarantee of  equality. -4-

At present the court gives much emphasis on the concept of fairness. The concept of  fairness requires fairness in action of the administration whether the action is judicial, quasi-judicial or administrative. The administrat ive inquiry and judicial or quasi  judicial inquiry both intend to arrive at a just decision and, therefore, both are required to observe the principle of fair play or fairness in action. It is now well established rule that every power should be exercised reasonably and not arbitrarily. Consequently, the administrative and judicial or quasi-judicial power both are required to be exercised justly and fairly and not arbitrarily and capriciously. However, the doctrine of fairness cannot be invoked to alter express terms of contract of statutory nature.

The term ³fairness´ and ³natural justice´ are used inter 

changeably. The idea of natural justice is fair play of action. However, the concept of  fairness is a term having the import wider than that of natur al justice.

Fairness

includes the natural justice. The doctrine of fairness requires the observance of the   principles of natural justice as well in addition to the principle of natural justice the doctrine of fairness provides certain procedural safeguards where none of the  principles of the natural justice is applicable.

The doctrine of fairness also has some weakness.

According to jain and jain if 

³natural justice´ is vague and flexible, the concept of fairness is still more. Though ³natural justice´ is a flexible concept, yet it does embody a minimal content, absence of bias, right to know the other party¶s case, duty to give reasons, and to arrive at findings on the basis of records etc.

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2 : ETHICS OF LEGAL PROFESSION

2.1 Meaning, Nature and Need

Professional ethics may be defined as a code of conduct written or unwritten for  regulating the behavior of a practicing lawyer towards himself, his client, his adversary in law and towards the court. Thus, ethics of law profession means the   body of the rules and practice which determine the professional conduct of the members of bar. When a person becomes an advocate his relation with men in general is governed by the general rules of law but his conduct as advocate is governed by the general rules of law but his conduct as advocate is governed by the special rules of   professional ethics of the bar. The main object of the ethics of the law profession is to maintain the dignity of the legal profession and the friendly relation between bench and bar. Chief justice Marshall has observed that ³The fundamental aim of legal ethics is to maintain the honour and dignity of the law  profession, to secure a spirit of friendly co-operation between the bench and the bar in the promotion of highest standards of justice, to establish honorable and fair dealing of  the counsel with his client opponent and witness, to establish a spirit of brotherhood in the bar itself, and to secure that lawyers discharge their responsibilities to the community generally.´

The American Bar Association Committee has well explained the need of the code of  legal ethics. It has observed that the legal profession is necessarily the keystone of the arch of government. The future of the country depends upon the maintenance of the Shrine of Justice pure and unrolled by the advocates and it cannot be so maintained, unless the conduct and motive of the members of the legal profession are what they object to be. It, therefore becomes the plain and simple duty of the lawyers to use their influence in every legitimate way to help and make the bar what it ought to be. It should be defined and measure by such ethical standards, however high as are necessar y to keep the administration of justice, pure and unsullied. Such standards may be crystallized into written code of professional ethics and lawyers failing to

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conform thereto should not be permitted to practice or retain membership in   professional organization. Legal profession is not a business but a profession. It has been created by th e state for  the public good. Consequently, the essence of the profession lies in three things (1) Organization of its members for the performance of their function; (2) Maintenance of certain standards, intellectual and ethical, for the dignity of  The profession; and (3) Subordination of pecuniary gains to efficient service.

The lawyers and the judges are considered the protector of justice; because of such an important role of the lawyers nothing should be done by them to lessen the people¶s faith in honesty and integrity of the legal profession.

Initially a written code of 

conduct did not find favor in England but later on the general council of the bar   published a book containing a complete code for the guidance of the lawyers. In India the exhaustive code of conduct for lawyers has been provided by the Bar Council of  India in the exercise of its rule-making power under section 49(1)(c) of the Advocates Act, 1961.

Even prior to the Advocates Act, 1961 the provision for punishment for misco nduct is found. Section 10 of the Indian Bar Council Act, 1926 contained provisions for the  punishment for misconduct. Section 10 of the Indian Bar council Act, 1926 contained the following provision(1) The high court may in the manner hereinafter provided reprimand, suspend or remove from practice any advocate of the high court whom it finds guilty of professional or other misconduct. (2) Upon receipt of complaint made to it by any court or by the bar council or by any other person that any such advocate has been guilty of misconduct, the high court shall, if it does not summarily reject the complaint, refer the case for inquiry either to the bar council or after consultation with the bar council to the court of the district judge and may on its own motion refer any case in -7-

which it has otherwise reason to believe that any such advocate has been so guilty. Besides this Legal Practitioners Act, 1879 also contained provisions for punishing the advocates for misconduct. The provisions of this act were as follow--Section 13 suspension and dismissal of pleaders and mukhatars guilty of  unprofessional conduct. Section 14

procedure when charge of unprofessional conduct is brought in the

subordinate court or revenue office. Section

15 power to call for record in case of acquittal under section 14.

2.2Professiona Ethics

Section 49(1)(c) of the Advocates Act, 1961 empowers the Bar Council of India to make rules so as to prescribe the standards of professional conduct and etiquette to be observed by the advocates. It has been made clear that such rules shall have only when they are approved by the Chief Justice of India. It has been made clear that any rules made in relation to the standards of professional conduct and etiquette to be observed   by the advocates and in force before the commencement of the Advocates (Amendment) Act, 1973, shall continue in force, until altered or repealed or amended in accordance with the provisions of this act.

Chapter II of part VI of the rules framed by the Bar Council of India deals with the standards of professional conduct and etiquette. It contains several rules which lay down the standards of professional conduct and etiquette. These rules specify the duties of an advocate to the Court, client, opponent and colleagues, etc. The rules mentioned in chapter II of part VI of the rules of Bar Council of India may  be discussed as follow-

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(A) Duty to court

The Bar Council of India has made certain rules so as to prescribe duties of an advocate to the court. Such duties may be explained as follow1) During the presentation the case and while acting otherwise as an advocate  before the court it is required to conduct himself with dignity and self respect. It is his duty to submit his grievances to the proper authority. The rules empower the advocate to make complaint against judicial officer but it should  be submitted to proper authority. 2) An advocate is required to maintain towards the court respectful attitude   bearing in mind that the dignity of judicial office is essential for survival of  free community. 3) Rule has made it clear that no advocate shall influence the decision of the court by any illegal means. It prohibits the private communication with the   judge relat ing to pending case.

If any advocate attempt to influence the

decision of court by illegal means. It prohibits the private communication with the judge relating to pending case. If any advocate attempt to influence the decision of court by illegal means then it may amount to misconduct. 4) The rule requires the advocate to use his best effort to restrain and prevent his client from resorting to sharp or unfair practice opposite from council or   parties which the advocate himself ought not to do. 5) An advocate shall appear in court at all times only in the prescribe dress and his appearance shall always be presentable. 6) An advocate shall not enter appearance act, plead, or practice in any way  before a court, tribunal, or authority mentioned in section 30 of the Advocates Act, 1961 if the sole or any member thereof is related to the advocate as father, nephew, grandfather, son, grandson, uncle, brother, first cousin, husband, mother, wife, daughter, sister, niece, sister-in-law, mother-in-law.

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7) The rule requires the advocate not to wear bands or gowns in public place other than in court except on such ceremonial occasions and at such places as the Bar Council of India and the court may prescribe. 8) The rule provides that an advocate shall not appear in or before any court or  tribunal or any other authority for or against an organization, institution, society, or corporation if he is a member of executive committee of such organization, institution, society, or corporation. 9) An advocate shall not act or plead in any matter in which he himself has some  pecuniary interest.

(B) Duty towards Client

Rule 11 to 33 deal with the duties of an advocate to his client. These rules may be explained as follow1) Rule 11 provides that an advocate is bound to accept any brief in the court or  tribunal or before any authority which he proposes to practice at fee consistent with his standing at bar and also nature of case. 2) Rule 12 provides that an advocate shall not withdraw from engagement once accepted without sufficient cause and unless reasonable and sufficient notice given to the client. 3) Rule 13 provides that an advocate should not accept the brief or appear in a case in which he has reason to believe that he will be a witness. 4)

Rule 14 provides that an advocate shall at the commencement of his engagement and during the client relating to his connection with the parties and any interest in or about the controversy as are likely to affect his client¶s  judgment in either engaging him or continuing the engagement.

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5) Rule 15 provides that it is the duty of an advocate to uphold the interest of his client fearlessly by all fair and honorable means without regard to any unpleasant consequences to himself or to any other. 6) Rule 16 provides that an advocate appearing for the prosecution of criminal trial shall so conduct the prosecution that it does not lead to conviction of an innocent. 7) Rule 17 provides that an advocate shall not commit directly or indirectly any  breach of the obligation imposed by section 126 of Indian Evidence Act. 8) Rule 18 provides that an advocate shall not at any time be a party to the formenting litigation. 9) Rule 19 makes it clear that an advocate shall not act on the instruction of any  person other than his client or his authorized agent. 10) Rule 20 provides that the fee of an advocate depending upon the success of  the sue he is considered as oppose to public policy. Contract for contingent fee is also hit by section 23 of the Indian Contract Act. 11) Rule 21 provides that an advocate shall not buy or traffic in or stipulate for or  agree to receive any share or interest in any actionable claim. 12) Rule 22 provides that an advocate shall not directly or indirectly bid foe or    purchase either in his own name or any other name for his own benefit or   benefit of any other person, any property sold in execution of decree or other   proceeding in which he was professionally engaged. 13) Rule 23 provides that an advocate shall not adjust fee payable to him by his client against his own personal property or liability to the client which liability does not arise in course of his employment as an advocate. 14) Rule 24 provides that an advocate shall not do anything whereby he abuses or  take advantage of the confidence repose in him by his client.

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15) Rule 25 provides that an advocate should keep an account of clients money entrusted to him and accounts should show amount received from the client or  on his behalf the expenses incurred for him and the debits made on account of  fees with the respective dates and all other necessary particulars. 16) Rule 26 provides that where money are received from or on account of client, the entries in the account should contain a reference as to whether the amount have been received for fees or expenses and during the course of the   proceeding no advocate shall accept with the consent in writing of the client concerned be at liberty to divert any portion of the expenses towards fee. 17) Rule 27 provides that where any amount is received or given to him on behalf  of his client, the fact of such receipt must be intimated to the client as early as   possible. If the client demands the payment of such money and in spite of  such demand the advocate does not pay him, he will be guilty of professional misconduct. 18) Rule 28 provides that after termination of the proceeding the advocate shall be at liberty to appropriate towards the settle fee due to him any sum remaining unexpanded out of the amount paid or send to him for expenses or any amount that has come into his hands that proceeding. 19) Rule 29 provides that if the fee has been left unsettled the advocate can deduct out of any money of the client remaining in his hand at the t ermination of the  proceeding for which he had been engaged. 20) Rule 30 provides that the copy of clients account shall be furnish to him on demand provided the necessary charges are paid. 21) Rule 31 requires an advocate not to enter into arrangements whereby funds in his hands are converted into loans. It makes it clear that an advocate shall not enter into arrangements whereby funds in his hands are converted into loans. 22) Rule 32 prohibits an advocate to lend money to his client for the purpose of  any action for legal proceeding in which he is engaged by such client. It - 12 -

 provides that an advocate shall not lend money to his client for the purpose of  any action or proceeding in which he is engaged by such client. 23) Rule 33 provides that an advocate who has at any time advice in connection with the institution of the suit appeal or matter as drawn pleading or acted for   party shall not act appear or plead for the opposite party.

(C) Duty to opponent

Rule 34 and 35 framed by the Bar council of India contain provisions as to the duties of an advocate to the opponent. Rule 34 provides that an advocate shall not in any way communicate or negotiate upon the subject matter of controversy with any party represented by an advocate except through that advocate. Rule 35 provides that an advocate shall do his best to carry out all legitimate promises made to the opposite party even though not reduced to writing or enforceable under  the rules of the court. It is the duty of the advocate not to engage in discussion or  argument about the subject of the dispute with the opposite party without notice of his counsel. Resolution 43 of Hoffman provides³I will never enter into any conversation with my opponent¶s client relative to his claim or defense, except with the consent and in the presence of his counsel.¶¶

(D) Duty to the colleagues

Rule 36, 37, 38 and framed by the Bar Council of India deal with the duties of an advocate to the colleagues. Rule 36 provides that an advocate shall not advertise directly or indirectly whether by circulars, advertisements, touts, or personal communication interview not warranted  by personal relations furnishing or inspiring newspaper comments or producing these  photograph to be published in connection with the case in which he has been engaged - 13 -

or concern. The sign board or name plate should be of reasonable size. The sign   board or stationary should not indicate that he is or has been associated with any  person organization or with any particular cause or matter or that he specializes in any  particular type of work or that he has been a judge or advocate in general. Rule 37 provides that an advocate shall not permit his name to be used in aid or to make possible the unauthorized practice of law by any agency. Rule 38 provides that an advocate shall not accept fee less than the fee taxable under  the rules when the clients is able to pay. Rule 39 provides that an advocate shall not enter appearance in any case in which there is already a vakalatnama or memo of appearance file by an advocate engaged for  a party except with his consent, in case such consent is not be produced and he shall appear only after obtaining the permission of court. (E) Other duties

1) Rule 40 requires every advocate on the rolls of the State Bar Council to pay a certain sum to the State bar Council. Rule 41 provides that all the sums so collected by the state bar council shall be credited in a separate fund to be known as ³Bar Council of India Advocates welfare fund for the State´ and shall be deposited in the bank as provided there under. According to rule 41(2) the Bar Council of India Advocates Welfare fund committee for the State shall remit 20% of the total amount collected and credited to its account, to the bar council of India by the end of every month which shall be credited  by the Bar council of India and the Bar council of India shall deposit the said amount in a separate fund to be known as ³Bar Council of India Advocates Welfare fund.´ According to rule 41(3) the rest 80% of the total sum so collected by the Bar  Council of India Advocate Welfare Fund Committee for the state shall be utilized for the welfare of the advocates in respect of welfare schemes sponsored by the respective State Bar Council.

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Rule 42 deals with the consequences of nonpayment of the said amount by the advocate. It provides that if an advocate fails to pay the aforesaid sum within the prescribed time, the secretary of the State Bar Council shall issue to him a notice to show cause within a month why his right to practice be not suspended. In case the advocate pays the amount together with late fee within the period specified in notice, the proceeding shall be dropped. If the advocate does not pay the amount or fails to show sufficient cause, a committee of three members constituted by the state bar council in this behalf may pass an order  suspending the right of the advocate to practice. Rule 43 provides that an advocate who has been convicted of an offence mentioned under section 24-A of the Advocates Act or has been declared insolvent or has taken full time service or part time service or engages in   business or any avocation inconsistent with his practicing as an advocate or  has incurred any disqualification mentioned in the Advocates Act or the rules made there under, shall send a declaration to the effect to the respective state  bar council in which the advocate is enrolled, within 90 days from the date of  such disqualification. Rule 44 provides, an appeal shall lie to the bar council of India at the instance of an aggrieved advocate within a period of 30 days from the date of the order   passed under rule 42 and 43. Rule 44-A provides that there shall be a Bar council of India Advocates Welfare Committee consisting of five members elected from amongst the members of the council. The term of the members of the committee shall be co-extensive with their term in the Bar Council of India. Rule 44-b makes itd clear that the Bar Council of India shall utilize the funds received under rule 41(2), stated above, in accordance with the scheme which may be framed from time to time.

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2) Duty in imparting training- rule 45 framed by the Bar Council of India makes it clear that it is improper for an advocate to demand or accept fees or any   premium from any person as a consideration for imparting training in law under the rules prescribed by the State Bar Council to enable such person to qualify for enrolment under the Advocates Act, 1961.

3) Duty to render legal aid ± rule 46 provides that every advocate shall in practice of the profession of law bear in mind that any one genuinely in need of a lawyer is entitled to legal assistance even though he cannot pay for it fully or  adequately and that within the limits of an advocates economic condition, free legal assistance to the indigent and oppressed is one of the highest obligation, as an advocate owes to the society.

4) Restriction on other employment ± rules 47, 48, 49, 50, 51 and 52 deals with the restrictions on other employment. Rule 47 provides that an advocate shall not personally engage in any business but he may be a sleeping partner in a firm doing business provided that in the opinion of the appropriate state bar  council the nature of the business is not inconsistent with the dignity of the   profession.

Rule 48 makes it clear that an advocate may be director or 

chairman of the board of directors of a company with or without any ordinary sitting fees, provided none of his duties are of execut ive character.

An

advocate shall not be a managing director or a secretary of any company. Rule 49 provides that an advocate shall not be a full time salaried employee of  any person, government, firm, corporation or concern, so long as he continues to practice and shall taking up any such employment intimate the fact to the   bar council on whose roll his name appears and shall thereupon cease to  practice as an advocate so long as he continues in such employment. Rule 50  provides that an advocate who has inherited or succeeded by survivorship, to a family business may continue it, but may not personally participate in the - 16 -

management thereof.

According to rule 51 an advocate may review

  parliamentary bills for remuneration, edit legal text books at a salary, coach   pupils for legal examination, set and examine question papers and subject to the rules against advertising and full time employment, engage in broadcasting   journalism, lecturing and teaching subject both legal and non legal. Rule 52 makes it clear that nothing in these rules shall prevent an advocate from accepting after obtaining the consent of

the state bar council, part -time

employment provided that in the opinion of the state bar council, the nature of  the employment does not conflict with his professional work and is not inconsistent with the dignity of the profession.

2.3 Punishment for the breach

Section 35 of the Advocates Act, 1961 provides punishment for professional misconduct.

Disciplinary committee of state

Bar Council of India

Disciplinary committee of Bar Council of India

Supreme Court

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3 : BENCH

BARRELATION

The Bar and Bench play an important role in the administration of justice. The judges administer the law with the assistance of the lawyers. The lawyers are officers of the court. They are expected to assist the court in the administration of justice. Actually lawyers collect materials relating to the case and thereby assist the court in arriving at a correct judgment. The legal profession has been created not for private gain but for    public good. It is a branch of the administration of justice. It is a partner with the  judiciary in the administration of justice.

Since the lawyers are officers of the court, they are required to maintain towards the court respectful attitude bearing in mind that the dignity of the judicial office is essential foe the survival of the society. During the presentation of the case and while acting otherwise before the court an advocate is required to conduct himself with dignity and self respect. He should not influence the decision of the court by any illegal or improper means. Besides, he is prohibited the private communication with the judge relating to a pending case. He should use his best efforts to restrain and   prevent his client from restoring to unfair practices in relation to the court.

An

advocate should not consider himself mere mouthpiece of the client and should exercise his own judgment in the use of restrained language during arguments in the court.

Besides, the court acts on the statements of the advocates and therefore the advocates are under obligation to be absolutely fair to the court. They are required to make accurate statements of facts and should not twist them. An advocate is under duty not to misguide the court.

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An advocate should not be servile and in case there is proper ground for complaint against a judicial officer, it is not only his right but also duty to submit his grievances to the proper authorities. He should always bear in mind that he is an officer of the court and part of the administration of justice.

If the courts or judges are not

respected, the whole administration of justice, of which he is a part, will result in the complete death of the rule of law.

Many duties of the lawyers to the court are

confined by the Bar Council of India.

The breach of such duties is taken as

  professional misconduct and it is punished in accordance with the provisions of the Advocates Act. Actually, self restrain and respectful attitude towards the court,  presentation of correct facts and law with a balance mind and without over statement, suppression, distortion or embellishments are requisites of good advocacy. It is the duty of lawyer to uphold the dignity and decorum of the court and must not do anything which brings the court itself in to dispute.

Mutual respect is necessary for the maintenance of the cordial relations between the  bench and the bar.

The judges play important role in the maintenance of rule of law which is essential for  the existence of the orderly societ y. It has rightly been stated by Mr. C.L. Anand that there is no office in the state of such powers as that of judge. Judges hold power  which is immensely greater than that of any other functionary. The citizen¶s life and liberty, reputation and property, personal and domestic happiness are all subject to the wisdom of the judges and hang on their decision. Where judicial power becomes corrupt, liberty expires, no security is left of life, reputation and property and no guarantee is left of personal or domestic happiness. A strong impartial and capable,  judiciary is the greatest need of a state.

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On account of such importance of the judges in the maintenance of the orderly society, it is the duty of the lawyers to play constructive role in the administrative of   justice. They must be respectful to the judges but at the same time, in case of proper  ground for complaint against a judge, they should submit the complaint to the proper  authority in proper manner.

A judge must be impartial and must do everything for justice and nothing for himself  or for his friend or for his sovereign. A judge must not allow himself to be subjected to any influence other than influence of the law and justice of the cause. He must discharge his duties without fear or favour, affection or ill-will. A judge should   possess calm temper. He should repress irritability and passion. He should always   bear in mind the statement of George Sharswood that where passion is allowed to   prevail, the judgment is dethroned. He should have patience and gravity of hearing. He should allow the advocate or party the fullest opportunity to present his case. When the judge does not allow the advocate to present his client¶s case as he considers it best, the counsel owes to his client to protest against it.

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4 : CONTEMPT OF COURT

4.1 Meaning and Nature

The contempt of Court Act, 1971 defines contempt of court for the first time. There is no statutory definition of contempt of court. Whatever definition provided under this act is not a definition but only classification of the term contempt of court. Contempt of court in general means to offend the dignity of the court and lower the prestige of  the court.

Halsbury defines as follow ³any act done or writing publish which is calculated to   bring a pole or judge into content or lower his authority or to interfere with the due course of justice or the lawful process of the court is contempt of court.´

Contempt of court is disobedience to court by acting in opposition to the authority,   justice and dignity thereof. It signifies a willful disregard or disobedience of courts order. Section 2(a) of the Contempt of Court Act, 1971 defines contempt of court as civil contempt or criminal contempt.

4.2 Kinds of Contempt of Court

The contempt of court has been categorized into two categories ± civil contempt and criminal contempt. However, as been stated above, the categories are not closed.

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(A) Civil Contempt

Meaning and nature ± civil contempt are taken as acts and omissions in procedure involving a private injury by the disobedience of the judgment, order or process of the court.

According to section 2(b) of the Contempt of court Act, 1971 civil contempt means willful disobedience to any judgment, decree, direction order, writ or other process of  a court or willful breach of undertaking given to the court. For civil contempt there must be disobedience to the order, etc. of the court or breach of undertaking given to the court and disobedience or breach must be willful. To constitute civil contempt  both these elements must be proved. The purpose of proceeding of the civil contempt is not only to punish the contemnor but also to exercise enforcement and obedience to the order of the court. It provides an instant and quick remedy to get the order passed  by the court implement. It is a sanction to enforce compliance with the order of court or to compensate for losses or damages sustained by reason of non-compliance.

Civil contempt, actually serves dual purpose ±  y

Vindication of the public interest by punishment of contemptuous conduct; and

y

Coercion to compel the contemnor to do what the court requires him.

To constitute µcivil contempt¶ the following are required to be proved y

There is disobedience of the order, decree, etc. of the court or breach of  undertaking given to the court; and

y

The disobedience or breach is willful

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These requirements may be discussed as follow: Disobedience of the order, decree, etc. of the court or breach of undertaking given by the court ± To constitute a civil contempt there must be a order, decree, etc.

of the court or undertaking given to the court and there must be disobedience thereto or breach thereof. In civil contempt it is necessary that the order which has been disobeyed must have been passed by the court having jurisdiction to pass such order. If the order is passed without jurisdiction, such order is not having a binding effect on the party against whom it is passed and so disobedience of such order will not amount to contempt of court. If there is any undertaking it must be unconditional, unqualified and expressed. So it is open to the court to assume an implied undertaking when there is nothing on records of court. It is the duty of the court to punish a person who tries to obstruct the course of justice or administration of justice or who brings into his repute the institution of judiciary but this power has to be exercised not casually or lightly but with great care, only in such cases where it is necessary to punish the contemnor in order to uphold the dignity and integrity of court. Willful disobedience or breach ±  For civil contempt the disobedience of the order,

decree, etc. of the court or breach of undertaking given to the court must be willful. In India the Supreme Court has, often pointed out that in order to punish a person or  authority for contempt of court, the disobedience to a judgment or breach of  undertaking to the court must be willful. Thus, mere disobedience is not sufficient to constitute civil contempt.

The disobedience must be willful.

The element of 

willingness is an indispensable requirement. The house of lords has made it clear that to establish the disobedience is willful, it is not necessary to show that it is contumacious in the sense that there is a direct intention to disobey the order; it is sufficient to show that effective administration of   justice requires some penalty for disobedience to the order of the court if it is more than casual, accidental or unintentional. The essence of the civil contempt is willful - 23 -

disobedience to any judgment, decree, direction, order or writ of a court and not mere inaction to give effect to it.

(B) Criminal contempt

In India the definition of contempt of court is found in clause (c) of section 2 of the Contempt of Court Act, 1971. It provides that ³criminal contempt´ means publication whether by words, spoken or written or by signs, or by visible representation, or  otherwise of any matter of the doing of any act whatsoever whichy

Scandalizes or tends to scandalize or lower or tends to lower the authority of  any court : or 

y

Prejudices or interferes or tends to interfere with the due course of any judicial  proceeding ; or 

y

Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

Thus, the criminal contempt means publication or doing of any other act which scandalizes or lower or tends to lower the authority of any court, or prejudices or  interferes or tends to interfere with the due course of any judicial proceeding or  interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner. The definition of criminal contempt is wide enough to include any act of a person which would tend to interfere with the administration of justice or which would lower  the authority of court. The scope of criminal contempt has been made very wide so as to empower the court to preserve the majesty of law which is an indispensable condition for the rule of law. The essentials of criminal contempt may be discussed as follow: 

Publication or other act ±  Publication or doing of any other act which has

resulted in any or all of the consequences specified in section 2© (i), (ii), and (iii) will amount to criminal contempt of court. Thus, the publication or act - 24 -

will be taken as criminal contempt if it has resulted or likely to result in any of  the following consequences : I.

Scandalizes or tends to scandalize or lowers or tends to lower the authority of  any court ; or 

II.

Prejudices or interferes or tends to interfere with, the due course of any judicial  proceeding : or 

III.

Interferes or tends to interfere with or obstructs or tends to obstruct the administration of justice in any other manner.

To constitute criminal contempt, thus first, there must be publication or doing of any other act and secondly, such publication or doing of the act has resulted in any or all of the consequences specified in section 2(c)(i), (ii) and (iii). Doing of any other act refers to something other than publication. In a case the court has observed that the criminal contempt has been vivisected into two categories ±  I.

One is publication of any matter which scandalizes or tends to scandalize the authority of any court, etc.

II.

Second is doing of any act whatsoever which scandalizes or tends to scandalize the authority of any court, etc.

If an act is not a criminal act merely because there was no publication, such act would automatically fall within the purview of the other category because the latter consist of  the doing of any act whatsoever. The latter category is thus a residuary category so wide enough from which no act of criminal contempt can possibly escape.

The

common denominator of both is that it scandalizes or tends to scandalize. The word publication has been given very wide meaning. The publication may be by words written or spoken, by signs or by visible representations or otherwise of any matter. If the newspaper or the broadcasting on the radio or television or the film exhibited in the cinema hall or theatre or on the television contains the matter which has or tends to have one or all the consequences specified above, it will amount ot contempt or court. - 25 -



Scandalizing or lowering the authority of the court or interfering with   judicial proceeding or administration of justice ± to constitute criminal

contempt the publication or doing of any other act must have resulted in any or  all of the three consequences specified in section 2(c)(i), (i), (ii) and (iii), namely i.

It scandalizes or tends to scandalize or lowers or tends to lower the authority of  any court ; or 

ii.

It prejudices or interferes or tends to interfere with, the due course of any  proceeding ; or 

iii.

It interferes or tends to interfere with or obstructs or tends to obstruct, the administration of justice in any other manner.

Scandalizing the court or lowering the authority of court ± 

Publication or doing of any act which scandalizes or tends to scandalize the authority of court is taken as a criminal contempt, for this purpose actual scandalization of the court is not necessary. It is sufficient if the publication has tendency to scandalize or  lower the authority of court. Scandalizing the court may be taken to mean any act done or written in publish calculated to bring a court or judge of court its contempt or  to lower its or his authority. According to Good heart scandalizing the court means any criticism of the judge, any personal attack upon him unconnected with the office he holds, it deals with ordinary rules of slander and libel. In Rajesh Kumar Singh v. High Court of Madhya Pradesh, the Supreme Court has made it clear that attributing improper motive to a judge or scurrilous abuse of a judge will be taken as scandalizing the court. In Rajendra Sail v. Madhya Pradesh High Court, the constitution witness made a statement in public in murder trial, the judge have his disposition to acquit the accuse. The judge who is going to retire was available for sale and that the judgment was rubbish and deserves to be thrown in dustbin. This comment made by the witness was  publish in newspaper. It was held that it amounts to gross contempt of court. - 26 -

Prejudice to or interference with the due course of any judicial proceeding-

The publication which prejudices or interferes or tends to interfere with, the due course of any judicial proceeding is taken as contempt of court. Actually, media trial or trial by newspaper is not considered proper because it affects the fairness or trial and is likely to cause prejudice to or likely to interfere with, due administration of    justice in the particular case. Even in England and America, trial by newspaper is considered wrong and taken as contempt of court. Thus, whenever the publication or  any other act unduly influences the result of litigation, it is treated as criminal contempt of court and is published therefore. The power to punish the contempt of  court is the means by which the legal system protects itself from the publication which may unduly influence the result of litigation. In A.G.V Times Newspaper Ltd. Lord Reid has made it clear that there has been and there still is in England a strong and generally held feeling that trial by newspaper is wrong and should be prevented.

Interferes or obstruction with administration of justice in any other manner-

The publication or doing of any other act which interferes or tends to interfere with or  obstructs or tends to obstruct the administration of justice in any other manner is also taken as contempt of court. This clause is a residuary clause and it covers the cases of  the criminal contempt not expressly covered by sub-clause (i) and (ii) of section 2(c) of the contempt of courts act, 1971. Thus the publication or doing of any other act which interferes or tends to interfere with or obstructs or tends to obstruct the administration of justice in a manner otherwise than by scandalizing the court or  lowering the authority of the court or by causing prejudice or by interfering with due course of any judicial proceeding would fall within the ambit o f this sub clause and thus, would amount criminal contempt under this sub clause. In J.R. Parashar v. Prashant Bhushan, the Supreme Court has held that holding a dharna by itself may not amount to contempt of court, but if by holding a dharna access to the court is hindered and the officers of the court and members of police are - 27 -

not allowed free ingress and egress or the proceeding in the court are otherwise disturbed or hampered, the dharna may amount to contempt because the administration of justice would be obstructed.

4.3 Contempt by Lawyers

On account of nature of duty to be discharged by the lawyers and the judges they may get into heated by law which may result in contempt of court. There are several instances of the misconduct such as using insulting language against the judge, suppressing the facts to obtain favorable order, imputation of partiality and unfairness against the judge. A council who advices his client to disobey the order of court is also held liable for contempt of court.

Attacking the judiciary in the bar council

election is taken as contempt of court. If the council refuses to answer the question of  the court is also liable for contempt of court. In Re Ajay Kumar Pandey case the Supreme Court held that advocate using intemperate language against various judicial officers and attributing motives to them while discharging there judicial function would be held guilty of contempt of court. In this case such advocate was sentenced or punished to 4 months simple imprisonment and fine of rupees 1000/-.

4.4 Contempt by judges, magistrates or other person acting judicially

Section 16 of Contempt of Court Act, 1971 makes judges, magistrates and other   person liable for contempt of court. This section provides that subject to the pro vision of any law for time being in force a judge, magistrate or other person acting judicially shall also be held liable for contempt of his own court or any other court in same manner as any individual is liable and provision of this act shall also be ap plied accordingly. This provision is not applicable to any reward or expression delivered by a judge in a matter which came before him in appeal or revision.

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4.5 Contempt liability of state, corporate bodies and there officers

As state becomes welfare state, now it is well settled that state shall not immune from contempt liability and therefore it will be held liable for contempt of court.

In

Mohammad Aslam v. Union of India the chief minister of Uttar Pradesh Kalyan Singh had given the undertaking to the court for protecting the Babri Masjid in his personal capacity as well as in his official capacity.

He was found guilty of willfully

committing breach of undertaking and therefore the court sentenced him to one day token imprisonment and fine of rupees 2000/-. The minister or officer of government is also either in his official capacity or if there is personal element contributing to contempt in his personal capacity, is liable in contempt.

4.6 Contempt proceeding ± nature and main features

Contempt jurisdiction is special jurisdiction. Summary procedure is a special feature of the contempt proceeding.

In England the common law has power to deal

summarily with contempt committed in their presence. However, in the early days the distinction was made between the acts in and out of the presence of the judge. The summary procedure was adopted in case of the contempt committed in presence of  court and not in the case committed outside the court, except the contempt by the officer of the court. In India also the courts of record which are provided under article 229 of the constitution can deal with summary of all types of contempt. It was held in Re Abdul Hassan Jauhar 1926, that there is uniformity in the judicial opinion that the   power to punish summarily for contempt is not a creature of statute but inherent incident of every court of record i.e. it is a power available to every court of record  because being a court of record. The high court and federal court were recognized as courts of records even under the government of Indian Act, 1935. The existing constitution of India contents specific provision for recognizing the high court and Supreme Court as court of record. Article 129 provides that the Supreme Court shall   be court of record and shall have all the powers including the power to punish for  contempt itself. Similarly article 215 provides that every high court shall have power 

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which includes power to punish for contempt of itself and such high court considers court of record as like article 129.

4.7Cognizance and procedure in case of contempt in face of the court

Section 14 of the contempt of court act deals with contempt in face of Supreme Court or high court. The provision u/s 14 provides that when it is alleged or appears to the supreme court or high court upon its own view that the person has been guilty of  contempt committed in its presence or wherein the court may cause such person to be detained in the custody and at any time before the rising of the court on the same day or as early as possible thereafter shall. a. Cause him to informed in writing of the contempt with which he is charged.  b. Providing an opportunity to make his defense. c. After taking evidence as may be necessary and after having such person  proceeding either with court or after adjournment to determine the d. And make such order for punishment of such person as may be just.

4.8 Contempt in face of Subordinate court

Provisions of section 14 applies only to the contempt in face of Supreme Court and high court. They do not apply to the subordinate court. In case of subordinate court it can take immediate action under section 228, 345 and 346 of Indian penal code and criminal procedure code. Section 345 of criminal procedure code lays down the   procedure or investigation and punishment for the offences specified in section 175, 178, 179, 180 or 228 of Indian penal code.

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4.9 Contempt outside court which is known as constructive contempt

Section 15 of the act deals with criminal contempt other than those covered by section 14. Section 15 of contempt of court act, 1991 read as cognizance of criminal contempt in other cases. In case of criminal contempt other than referred under section 14 the Supreme Court or high court maintain action on its own or motion make by a. Advocate general  b. Any other person with the comment in writing of advocate general c. In relation to any high court of the union territory of Delhi, such law officer as the central government may specify in the official gazette or any other person on behalf of such law officer.

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5: ADVOCACY When a person after getting the degree of bachelor of law enters into the legal  profession finds the giants in the profession having vast experience as his competitors and becomes nervous. In such conditions he should always remember that the hard work, devotion and good dealing with the client and judges will enable him to compete with the senior lawyers having vast experience and good reputation. He should give full attention to his profession. He should see how the senior advocates conduct the cases. The class room study no doubt provides theoretical knowledge of  the law and a god background for the legal profession, but for success in the legal  profession a careful observation of the proceedings in the court is necessary. Actually good command over the language, good voice, good power of expression, good knowledge of the law, good commonsense, good presence of mind and good health all help a lawyer to become a successful lawyer. In addition, the control over  the temper is also necessary for becoming a popular and successful lawyer. µThe Art of Winning Cases¶ Justice Ram Labhaya has stated that methodical  preparat ion of the case is the most essential perquisite for success. It is indispensable for the proper presentation of the case. Facts have to be mastered knowledge of facts generates confidence which is of great assistance in carrying conviction. After clear, chronological precise and brief statements of facts, the next important step in   presentation is a clear statement of the points in controversy in logical sequence, so that it is possible to proceed from step, each step forming a link in the chain of  arguments.

Reference to the relevant provisions of the statute must necessarily

 precedent the discussion of authorities and precedents.

Citation of cases is also an art and plays important role in winning the case. A lawyer  should know all the relevant cases on the points involved in the case. He must keep in mind the past decisions, the law laid down in the cases and also the facts on which the law has been laid down. A lawyer should always keep in mind that his opponent way

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cite the precedent in favor of his client and therefore he should always be prepared to face such a situation and he can meet such a situation successfully, if he himself  knows fully the precedent on the issues involved in the case.

Citing the minimum but relevant cases is considered better than citing a large number  of cases containing the same or similar principles of law or containing the principles of law not relevant for the issues involved in the case. Judge Abbot Parry has mentioned seven lamps of advocacy ± honesty, courage, industry, wit, eloquence, judgment and fellowship. An advocate should be honest and a man of integrity and character. An advocate who is straightforward and is possessed of these three jewels is appreciated by the court and the client alike. An advocate should have patience and preservance. An advocate should be well equipped in legal   bearing.

An advocate should never take anything for granted but examine it and

satisfy himself what is or is not. He should study the law and not merely read it. An advocate should have general knowledge.

An advocate is always expected to maintain calm and self possession and a pleasant humour. He should be respectful to the court. He owes this duty not for the sake of  the temporary incumbent of the judicial office but for the maintenance of its supreme importance. He should never interrupt the judge when he speaks but should wait for  the judge to complete his statement. An advocate should neither argue when he is not called upon to argue, nor continue his arguments when the judg e is in favor and is not anxious to hear move form him. An advocate should not lose balance of temper if the   judge does not react as he expects. For the success I legal profession an advocate must be fully aware of drafting the plaint and written statements and also of the art of  arguing the case.

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Justice R.C. Lahoti has given the following tips to the law students: 1) Hard work, 2) Be physically fit, 3) Value the time, 4) Knowledge of English language, 5) Read literature, 6) Knowledge of computer, 7) Develop a hobby, 8) Look smart, 9) Aim high.

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6: CASE LAWS RELATING TO CONTEMPT OF COURT

V.P.Kumaravelu

v. The Bar Council of India

The appellant was a city government pleader in all the civil courts in madras other  than the high courts. He was required to conduct all the civil matters pending in the civil courts of madras on behalf of the government. The first complaint filed by the commission and secretary of Tamil Nadu against the appellant before the disciplinary committee of the bar council of the Tamil Nadu was that the suit no. 400 of 1978 was decreed ex parte against as he did not file a fresh memo of his appearance. Another complaint pertaining the appellant, a suit is related to it was filed by the Travancore Textiles Ltd. Against the state of Tamil Nadu. The complaint alleged that a result of the gross negligence on the part of the appellant the government of Tamil Nadu had suffered substantial loss.

The appellant, in another suit filed by an employee of Directorate of Education of  State of Tamil Nadu challenged his date of birth, did not file memorandum for  appearance on behalf of the state government and an ex parte decree was passed in that suit.

In all these cases the appellant contended that since the office staff had not put up the  papers before him, it was through inadvertence that the suits were decreed ex parte.

The Bar Council of India held him on the charge of constructive negligence and it reprimanded him for time lapse.

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In appeal, the Supreme Court held that there was no finding of any mala fides on the  part of the appellant or any deliberate inaction on his part in not attending to the cases. There was a failure on his part to discharge his duties towards his client but it was not deliberate but on account of heavy pressure of work and lack of diligence on the part of his staff. The negligence on his part was without moral turpitude or delinquency and therefore he was not held guilty of professional misconduct.

Prahalad Saran Gupta v. Bar council of India

The appellant Prahlad Saran Gupta was practicing advocate at Ghaziabad in U.P. He was appearing the decree-holder in a case int eh court of Civil Judge, Ghaziabad. A complaint was received by the U.P. State bar council from Rajendra Prasad alleging him withholding of Rs. 1500/- without paying to the decree-holder and with other  allegations.

The State Bar Council referred the case to its Disciplinary Committee but it could not complete the proceedings within one year and the same was transferred to the Bar  Council of India.

The Disciplinary Committee of Bar Council of India did not find merit int eh allegation in the complaint that the appellant was grossly careless in handling the execution case.

However, the committee found the appellant guilty of gross

  professional misconduct regarding withholding Rs.1500/- which was handed over to him. The court imposed penalty of reprimand on the appellant for the said misconduct of wrongfully retaining the amount.

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Hikmat Ali Khan v.Ishwar Prasad Arya

Ishwar Prasad Arya was an advocate practicing at Badaun in U.P. He assaulted his opponent, Radley Shyam in the court -room of Munsif at Badaun with a Knife. After  investigation he was prosecuted for offences under section 307 of the IPC and section 25 of the Arms Act and he was sentenced for 3 years imprisonment. But he remained free on a fraudulent letter said to have come from the Governor suspending the conviction. The III Additional district and session Judge, Badaun sent a complaint containing these facts to the chairman, Bar Council of U.P. The disciplinary committee of U.P. Bar Council debarred him from practice for a period of two years. The advocate appealed to the Bar Council of India which set aside the orders of the Bar Council of U.P.

The appellant Hikmat Ali Khan complained against the advocate and prayed for a fresh inquiry. In the said proceedings the advocate appeared and filed his written statement but thereafter he did not appear.

Hence the Bar Council of U.P. proceeded ex parte against him and the Disciplinary Committee of the state Bar Council of U.P. debarred him for a period of three years. The advocate again appealed to the Bar Council of India and it had set aside the  punishment. Then Hikmat Ali field appeal to the Supreme Court. The Supreme Court held that his conduct was such that his name should be removed from the state roll of  advocates as he was found guilty of an offence of attempting to commit murder and convicted for it and as he was unworthy for remaining in the profession.

P.D.Gupta v. Ram Murthi and other  In the instant case one Shri Ram Murthi, Vidyavati and two others claimed for the   property of late Krishna Das.

P.D.Gupta was the advocate throughout all the

  proceedings of the case on hehalf of Vidyavati. Though knowingly, P.D.Gupta and - 37 -

his son-in-law Kumar Gupta purchased some portion of the property. The advocate further sold the property purchased form Vidyavati to a third party and made profit. A complaint was made against P.D.Gupta, Advocate to the Bar Council of Delhi. But the Disciplinary committee of the Delhi Bar Council could not dispose the case within one year and it was transferred to the Bar Council of India.

The disciplinary Committee of the Bar Council of India observed that P.D.Gupta knew Vidyavati and he also knew that the property purchased by him was the subject matter of litigation and he purchased the property at a throw-away price of  Rs.1,89,000/-

The Disciplinary Committee of the Bar Council of India held the advocate P.D.Gupta guilty of professional misconduct and suspended from practice for a period of one year. It also stated that there was no Bar for an advocate to purchase the property and he will never purchase the property, the title of which in sunder doubt as he being a law knowing person. P.D.Gupta appealed to the Supreme Court on the decision of the Bar Council of India. The Supreme Court found the order genuine and valid and did not interfere with the punishment awards to P.D.Gupta.

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7: LIST OF CASES

V.P. Kumaravelu v. The Bar Council of India, AIDR 1997 SC 1014

Hikmat Ali Khan v. Ishwar Prasad Arya and others, AIR 1997 SC 864

Prahlad Saran Gupta v. Bar Council of India, AIR 1997 SC 1338

P.D.Gupta v. Ram Murthi and others, AIR 1998 SC 283

Rajesh Kumar /sing v. High court of Madhya Pradesh, AIR 2007 SC 2725

A.G.V Times Newspaper Ltd., (1973) 3 AIIER 54 (HL)

J.R.Parashar v. Prashant Bhushan, AIR 200L SC 3395

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