Vijaysingh Rathore Vs. Murarilal &
Ors  INSC 140 (3 August 1979)
CITATION: 1979 AIR 1719 1980 SCR (1) 205 1979
SCC (4) 758
Advocates Act 1961-S. 35-Rule 10, Chapter 11,
Parr 6 of the Rules for professional misconduct-Scope of-Reprimand whether
meets ends of justice.
Rule 10, Chapter II, Part 6 of the Rules
framed by the Bar Council of India for professional mis-conduct provides that
an advocate shall not stand a surety, or certify the soundness of a surety, for
his client required for the purposes of any legal proceedings.
The appellant, a practising advocate, was
suspended for one month by the Disciplinary Tribunal of the Bar Council of
India on the ground that in violation of the rules, he had certified the
solvency of a surety in a bailable offence in which the accused was his client.
The appellate body dismissed his appeal.
On the question whether a reprimand would
meet the ends of justice, Allowing the appeal in part,
HELD: (1) Section 35 of the Advocates Act
permits reprimand provided the ends of public justice are met by this leniency.
Ordinarily this Court does not interfere with a punishment imposed by the
Disciplinary Tribunal except where strong circumstances involving principle are
Censure has a better deterrent value on the
errant brethren in the profession in some situations than suspension for a
month from professional practice.
In the present case the lawyer was young, the
offence was not tainted with turpitude and the surety whose solvency he
certified was found to be good. These circumstances are amelioratory and hardly
warrant codign punishment. Public admonition is an appropriate sentence in the
p, Public professions which enjoy a monopoly
of public audience have statutorily enforced social accountability for purity,
probity and people-conscious service. In our country bail has become a logy and
an instrument of unjust incarceration. This harasses the poor and leads to corruption.
A smart lawyer who appears for an indigent accused may commiserate and enquire
whether the surety is solvent. If he is satisfied that the surety is
sufficiently solvent, he may certify the solvency of the surety. In some cases
the detainee may be a close relation or close friend or a poor servant of his.
In that capacity, not as a lawyer, he may know the surety and his solvency or
may offer himself as a surety. In such cases he violates the rule all the same.
The degree of culpability in such cases depends on the total circumstances and
the social milieu.
The rule under consideration is a wholesome
one in the sense that lawyers should not misuse their role for making extra
perquisites by standing surety for their clients or certifying the solvency of
such sureties. The Court may not 206 frown upon a lawyer who helps out the
person, not by false pretences, but on the strength of factual certitude and
proven inability to substantiate solvency.
The Court reprimanded the appellant and
directed that he shall not violate the norm of professional conduct and shall
uphold the purity and probity of the profession generally.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1922 of 1979. From the Judgment and order dated 7-5-1979 of the
Disciplinary Committee of the Bar Council of India in D.C. Appeal No. 19/78.
Appellant ill Person and S. S. Khanduja for
the Appellant. The order of the Court was delivered by KRISHNA IYER, J. The
Appellant, a fledging in the legal profession, has been punished by the
Tribunal of the Bar Council for eating the forbidden fruit of dubious
professional conduct by improperly certifying the solvency of a surety for an
accused person, his client. suspension from practice for one month is the
punishment awarded by the trial tribunal and in appeal. Counsel for the
appellant Shri Khanduja, has pleaded for an admonitory sentence by the Court
ex-misericordium. Of course, the punitive pharmacopoeia of the Advocates Act,
in Section 35, does permit reprimand provided the ends of public justice are
met by this leniency. After all, public professions which enjoy a monopoly of
public audience have a statutorily enforced social accountability for purity,
probity and people- conscious service. In our Republic, Article 19(1) (g) vests
a fundamental right to practise any profession only subject to reasonable
restrictions in the interests of the general public (vide Art. 19(6). The law
forbids the members of the legal or other like professions from converting
themselves into a conspiracy against the laity and all regulations necessary
for ensuring a people-oriented bar without exploitation potential are
permissible, nay necessary. Rule 10, chapter 2 part six of the Rules of Bar
Council of India for Professional Misconduct framed for disciplinary purposes is
stated to have been violated by the appellant for which dispensatory punishment
has been meted out.
The factual setting gives an insight into the
degree of deviance of the delinquent appellant. Punishment must be geared to a
social goal, at once deterrent and reformatory.
In the present case, the appellant is charged
with certifying the solvency of a surety in a bailable offence.
Obviously, the accused, who was the client of
the appellant, was entitled to be enlarged on bail because the offence for Which
he was in custody was admittedly bailable. Even so, it is a common phenomenon
in our country that bail has too, often become a bogey and an instrument of
unjust incarceration. There are 207 some magistrates who are never satisfied
about the solvency of sureties except when the property of the surety is within
their jurisdiction and Revenue officers have attested their worth. This
harasses the poor and leads to corruption as pointed out by this Court in Moti
Ram's case. It may, therefore, be quite on the cards that some sympathetic
lawyer who appears for an indigent accused may commiserate and enquire whether
the surety is solvent. If he is satisfied, on sure basis, that the surety is
sufficiently solvent, then he may salvage the freedom of the accused by certifying
the solvency of which he has satisfied himself.
It is also possible that the detainee is a
close relation or close friend or a poor servant of his. In that capacity, not
as a lawyer, he may know the surety and his solvency or may offer himself as a
surety. If a lawyer's father or mother is arrested and the Court orders release
on bail, it is quite conceivable and perhaps legitimate, if the son appears for
his parent and also stands surety. He violates the rule all the same. The
degree of culpability in a lawyer violating Rule 10, chapter 2, part six
depends on the total circumstances and the social milieu.
This Court has held, taking cognizance of the
harassment flowing from sureties being insisted upon before a person is
enlarged or bailed out, that the Court has the jurisdiction to release on his
own bond without the necessity of a surety. The question, therefore, is whether
the circumstances of the offence and offender are venal or venial.
The Rule with which we are concerned is a
wholesome one in the sense that lawyers should not misuse their role for making
extra perquisites by standing surety for their clients or certifying the
solvency of such sureties. That is a bolt on the bar, an exploitative stain on
At the same time, the punishment is flexible
in the sense that where the situation cries for the help of the lawyer in
favour of a client who is languishing in jail because his surety is being
unreasonably rejected, we may not frown upon a lawyer who helps out the person,
not by false pretences, but on the strength of factual certitude and proven
inability to substantiate solvency. In the present case, the circumstances are
amelioratary and hardly warrant condign Punishment.
The lawyer is young, the offence is not
tainted with turpitude and the surety whose solvency be certified was found to
be good. The most that may be justified is perhaps a public reprimand since
censure has a better deterrent value on the errant brethren in the 208
profession in some situations than a suspension for a month from professional
practice which may pass unnoticed in the crowd of lawyers and the delinquent
himself may be plying his business except for appearance in Court. In suitable
cases, of course, even severity of suspension or disbarment may be justified.
This Court should not interfere ordinarily
with a punishment imposed by the Disciplinary Tribunal except where strong
circumstances involving principle are present. In our vast country of
illiterate litigants and sophisticated litigation, the legal position must be
so explained as to harmonise the interests of the indigents who are marched
into Court and the professional probity of the Bar which is an extended
instrument of justice.
We hold that public admonition is an
appropriate sentence in the present case and proceed to administer it in open
court to the appellant ! We hereby reprimand him and direct that he shall not
violate the norms of professional conduct and shall uphold the purity and
probity of the profession generally, and, in particular, as spelt out in the
rules framed by the Bar Council of India. We condone his deviance this time and
warn him that he shall not violate again.
The appeal is, to this extent, allowed and
the sentence of reprimand substituted for the sentence of suspension.
P.B.R. Appeal allowed in part.