N.G. Dastane
Vs. Shrikant S. Shivde & Anr [2001] Insc 279 (5 May 2001)
K.T.
Thomas, R.P. Sethi & S.N. Phukan Thomas, J.
Leave
granted.
L.I.T.J
We are
much grieved, if not peeved, in noticing how two advocates succeeded in
tormenting a witness by seeking numerous adjournments for cross-examining him
in the Court of a judicial magistrate. On all those days the witness had to be
present perforce and at considerable cost to him. It became a matter of deep concern
to us when we noticed that the judicial magistrate had, on all such occasions,
obliged the advocates by granting such adjournments on the mere asking to the
incalculable inconvenience and sufferings of the witness. When he was convinced
that those two advocates were adopting the tactics of subterfuge by putting
forth untrue excuses every time for postponing cross-examination he demurred.
But the magistrate did not help him.
Ultimately
when pressed against the wall he moved the State Bar Council for taking
disciplinary proceedings against the advocates concerned. But the State Bar
Council simply shut its doors informing him that he did not have even a prima
facie case against the delinquent advocates. He met the same fate when he moved
the Bar Council of India with a revision petition, as the revision petition was
axed down at the threshold itself. The exasperated witness, exhausted by all
the drubbings, has now come before this Court with this appeal by special
leave.
Appellant,
the aforesaid aggrieved witness, describes himself to be an agriculturist
scientist. He claims to have worked as an Advisor in the UNO until he retired therefrom.
He
filed a complaint before the Judicial Magistrate of First Class, Pune (Maharashtra) against some accused for the offence
of theft of electricity. The accused in the said complaint case engaged
Advocate Shri Shivde (the first respondent) and his colleague Shri Kulkarni
(the second respondent) who were practising in the courts at Pune. The two
respondent-advocates filed a joint Vakalatnama before the trial court and the
trial began in 1993. Appellant was examined in-chief. Thus far there was no
problem.
The
agony of the appellant started when the Magistrate posted the case for
cross-examination of the appellant on 30.7.1993. As per the version of the
appellant, he had to come down from New York for being cross-examined on that day, but the second respondent
advocate sought for an adjournment on the ground that it was not possible to
conduct the cross-examination unless all the other witnesses for the
prosecution were also present in court. We have no doubt that such a demand was
not made with good faith. It was aimed at causing unnecessary harassment to
witnesses.
No
other purpose could be achieved by such demand. Although the court was
conscious that insistence of presence of the other witnesses has no legal
sanction the Judicial Magistrate conceded to the request and posted the case to
23.8.1993.
On
that day, appellant and all his witnesses were present in court. But both the
respondents sought for an adjournment, the first respondent on the premise that
he was busy outside the court, and the second respondent on the premise that
the father of the first respondents friend expired. The Judicial Magistrate
yielded to that request, apparently in a very casual manner and adjourned the
case to 13.9.1993.
On
that day also the respondents sought for an adjournment but on a flippant
reason. Appellants counsel raised objections against the prayer for
adjournment.
Nevertheless
the Judicial Magistrate again adjourned the case and posted it to 16.10.1993.
We may point out that the said date was chosen by the court as the respondents
represented to the court that the said date was quite convenient to them.
Appellant,
thoroughly disgusted, had two options before him. One was to get dropped out
from the case and the other one was to continue to suffer. He had chosen the
latter and presented himself along with all the witnesses on 16.10.1993. But
alas, the respondents again asked for adjournment on that day also. This time
the adjournment was sought on the ground that one of the respondent advocates
was out of station. It seems that the Judicial Magistrate yielded to the
request this time also and posted the case to 20.11.1993 peremptorily. It would
have been a sad plight to see how the appellant and his witnesses were walking
out of the court complex without the case registering even a wee bit of
progress in spite of his attending the Court on so many days for the purpose of
being cross-examined. His opposite party would have laughed in his mind as to
how his advocates succeeded in tormenting the complainant by abusing the
process of court through securing adjournments after adjournments. The
complainant would have wept in his mind for choosing a judicial forum for redressal
of his grievance.
On
20.11.1993, appellant and all his witnesses were again present, possibly with a
certitude that they would be examined at least now because of the peremptory
order passed by the Magistrate on the previous occasion. Unfortunately, the
peremptoriness of the order did not create even a ripple on the respondents
advocates and they ventured to seek for an adjournment again on the ground that
one of the respondents advocates was indisposed. There was not even a
suggestion as to what was the inconvenience for the co-advocate. Even so, the
Magistrate yielded to that request also and the case was again adjourned to
4.12.1993.
The
flash point in the cauldron of the agony and grievance of the appellant reached
on 4.12.1993. He presented himself before the court for being cross- examined,
despite all the frets and vexations suffered by him till that day hoping that
at least on this occasion respondents would not concoct any alibi for dodging
the cross-examination. But the second respondent who was present in the court
sought for an adjournment again with a written application, on the following
premise:
Advocate
Shivde (first respondent) is unable to speak on account of the throat infection
and continuous cough.
The
doctor has advised him to take two weeks rest. Hence he is unable to conduct
the matter before this Honble court today. It is therefore prayed that the
hearing may kindly be adjourned for three weeks in the interest of justice.
The
Judicial Magistrate without any qualms or sensitivity succumbed to the said
tactics also and granted the adjournment prayed for. The magistrate did not
care even to ask the second respondent why he could not conduct the
cross-examination, if his colleague first respondent is so unwell. But the
magistrate felt no difficulty to immediately allow the request for again
adjourning the case.
Of
course the magistrate ordered that a medical certificate should be produced by
the first respondent and cost of Rs.75/- should be paid to the appellant. A
poor solace for the agony inflicted on him.
According
to the appellant, after the case was adjourned on 4.12.1993, he went out of the
court room and while he was walking through the corridors of the court complex
he happened to come across the first respondent forcefully and fluently arguing
a matter before another court situated in the same building. It was that sight
which caused him to venture to lodge the complaint against both the respondents
before the Maharashtra State Bar Council on 27.12.1993. He had narrated the
details of his complaint in the petition presented before the State Bar Council
and prayed for taking necessary actions against the two advocates.
Both
the respondents filed a joint reply to the above complaint in which they
stated, inter alia, that respondent No.1 was suffering from severe throat
infection and temperature and was under medical treatment of Dr. Manavi and
that respondent No.1 sought adjournments in all the cases in which prolonged
cross-examination was required and he was not in a position to speak
continuously because of severe cough problem. They did not say anything about
the large number of occasions they sought for adjourning the cross-examination
of the complainant.
The
State Bar Council obtained a report from its Advocate Member Sri B.E. Avhad.
That report says that he interrogated the parties and understood that the
complaint is without any substance. It was on the strength of the said report
that the State Bar Council has dropped further proceedings against the
respondents. The Revision Petition was disposed of by the impugned order
holding that the Bar Council of Maharashtra was perfectly justified in passing
the impugned resolution dated 12.11.1994 and we see no reason to interfere with
the same; no prima facie case is made out against the respondents and there is
no reason to believe that the advocate had committed professional or other
misconduct.
When
we heard the arguments of Shri PH Parekh, learned counsel for the appellant and
Sri Vijay S.Kotewal, learned Senior counsel for the respondents we felt, apart
from the question of professional misconduct of the respondents, that the
Judicial Magistrate, who yielded to all the procrastinative tactics, should be
made answerable to the High Court so that action could be taken against the
Magistrate on the administrative side for such serious laches. We, therefore,
called upon the said Magistrate to show cause why we shall not make adverse
remarks against the magistrate in our judgment. The said Judicial Magistrate has
now explained that she had only started working as a regular magistrate just
after completing the training on 6.7.1993. If so, the Judicial Magistrate would
have been a novice in the judicial service. On that ground alone, we persuade
ourselves to refrain from recommending any disciplinary action against the
Magistrate. Be that as it may, we now proceed to consider whether the acts
attributed to the respondents amounted to professional misconduct.
Chapter
V of the Advocates Act 1961 (for short the Act) contains provisions for dealing
with the conduct of Advocates. The word misconduct is not defined in the Act.
Section
35 of the Act indicates that the misconduct referred to therein is of a much
wider import. This can be noticed from the wordings employed in sub-section (I)
of that Section. It is extracted herein:
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 disciplinary committee.
The
collocation of the words guilty of professional or other misconduct has been
used for the purpose of conferring power on the Disciplinary Committee of the
State Bar Council. It is for equipping the Bar Council with the binocular as
well as whip to be on the qui vive for tracing out delinquent advocates who
transgress the norms or standards expected of them in the discharge of their
professional duties. The central function of the legal profession is to help promotion
of administration of justice. Any misdemeanor or misdeed or misbehaviour can
become an act of delinquency, if it infringes such norms or standards and it
can be regarded as misconduct.
In
Blacks Law Dictionary misconduct is defined as a transgression of some
established and definite rule of action, a forbidden act, a dereliction from
duty, unlawful behaviour, willful in character, improper or wrong behaviour;
its synonyms are misdemeanor, misdeed, misbehaviour, delinquency, impropriety,
mismanagement, offense, but not negligence or carelessness.
The
expression professional misconduct was attempted to be defined by Darling J. in
A Solicitor ex p the Law Society, in re [1912 (1) KB 302) in the following
terms:
If it
is shown that an advocate in the pursuit of his profession has done something
with regard to it which would be reasonably regarded as disgraceful or dishonourable
by his professional brethren of good repute and competency, then it is open to
say that he is guilty of professional misconduct.
In RD Saxena
vs. Balram Prasad Sharma [2000 (7) SCC 264] this Court has quoted the above
definition rendered by Darling J., which was subsequently approved by the Privy
Council in George Frier Grahame vs. Attorney General (AIR 1936 PC 224) and then
observed thus:
Misconduct
envisaged in Section 35 of the Advocates Act is not defined. The section uses
the expression misconduct, professional or otherwise. The word misconduct is a
relative term. It has to be considered with reference to the subject matter and
the context wherein such term occurs. It literally means wrong conduct or
improper conduct.
Advocate
abusing the process of court is guilty of misconduct. When witnesses are
present in Court for examination the advocate concerned has a duty to see that
their examination is conducted. We remind that witnesses who come to the Court,
on being called by the Court, do so as they have no other option, and such
witnesses are also responsible citizens who have other work to attend for eking
out livelihood. They cannot be treated as less respectables to be told to come
again and again just to suit the convenience of the advocate concerned. If the
advocate has any unavoidable inconvenience it is his duty to make other
arrangements for examining the witnesses who is present in Court. Seeking
adjournments for postponing the examination of witnesses who are present in
Court even without making other arrangements for examining such witnesses is a
dereliction of advocates duty to the Court as that would cause much harassment and
hardship to the witnesses. Such dereliction if repeated would amount to
misconduct of the advocate concerned. Legal profession must be purified from
such abuses of the Court procedures. Tactics of filibuster, if adopted by an
advocate, is also professional misconduct.
In
State of UP vs. Shambhu Nath singh [JT 2001 (4)
SC 319] this Court has deprecated the practice of Courts adjourning cases
without examination of witnesses when such witnesses are in attendance. We
reminded the Courts thus:
We
make it abundantly clear that if a witness is present in court he must be
examined on that day. The court must know that most of the witnesses could
attend the court only at heavy cost to them, after keeping aside their own
avocation. Certainly they incur suffering and loss of income. The meagre amount
of Bhatta (allowance) which a witness may be paid by the court is generally a
poor solace for the financial loss incurred by him. It is a sad plight in the
trial courts that witnesses who are called through summons or other processes
stand at the doorstep from morning till evening only to be told at the end of
the day that the case is adjourned to another day. This primitive practice must
be reformed by presiding officers of the trial courts and it can be reformed by
every one provided the presiding officer concerned has a commitment to duty. No
sadistic pleasure in seeing how other persons summoned by him as witnesses are
stranded on account of the dimension of his judicial powers can be a persuading
factor for granting such adjournments lavishly, that too in a casual manner.
When
the Bar Council in its wider scope of supervision over the conduct of advocates
in their professional duties comes across any instance of such misconduct it is
the duty of the Bar Council concerned to refer the matter to its Disciplinary
Committee. The expression reason to believe is employed in Section 35 of the
Act only for the limited purpose of using it as a filter for excluding
frivolous complaints against advocates. If the complaint is genuine and if the
complaint is not lodged with the sole purpose of harassing an advocate or if it
is not actuated by mala fides, the Bar Council has a statutory duty to forward
the complaint to the Disciplinary Committee.
In Bar
Council of Maharashtra vs. MV Dabholkar [1976 (2) SCR 48] a four Judge Bench of
this Court had held that the requirement of reason to believe cannot be
converted into a formalised procedural road block, it being essentially a
barrier against frivolous enquiries.
In our
opinion, the State Bar Council has abdicated its duties when it was found that
there was no prima facie case for the Disciplinary Committee to take up. The
Bar Council of India also went woefully wrong in holding that there was no case
for revision at all. In our considered view the appellant complainant has made
out a very strong prima facie case for the Disciplinary Committee of the State
Bar Council to proceed with. We, therefore, set aside the order of the State
Bar Council as well as that of the Bar Council of India and we hold that the
complaint of the appellant would stand referred to the Disciplinary Committee
of the State Bar Council.
Section
36(2) of the Advocates Act reads thus:
Notwithstanding
anything contained in this Chapter, the disciplinary committee of the Bar
Council of India may, either of its own motion or on a report by any State Bar
Council or an application made to it by any person interested, withdraw for
inquiry before itself any proceedings for disciplinary action against any
advocate pending before the disciplinary committee of any State Bar Council and
dispose of the same.
As the
complaint is now, by virtue of this judgment, pending before the Disciplinary
Committee of the State Bar Council we consider the question whether it is
appropriate that the Bar council of India takes it up for the purpose of
referring it to its Disciplinary Committee. As the misconduct alleged is of the
year 1993-94 the ends of justice demand that the Disciplinary Committee of the
Bar Council of India should now deal with the complaint. For that purpose we
order that the complaint of the appellant would stand referred to the Bar
Council of India under Section 36 of the Advocates Act. Now we direct the said
Disciplinary Committee to adopt such steps as are necessary for the disposal of
the complaint in accordance with law and in the light of the observations made
above.
The
appeal is disposed of accordingly.
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