VERY IMPORTANT POINT
Taking adjournments on flimsy grounds in a criminal trial by advocates and its grant by Judicial Officer is an abuse of the process of the Court . The Advocates can be made answerable to State and Central Bar Councils under Sections 35 and 36 of Advocates Act, 1961 and the Judicial Officer can be made answerable to High Court.

Headnote:(i) Legal Ethics relating to Judicial Officers in Criminal Trial-Case of theft of electricity against two persons filed by appellant in a Magistrate s Court in Pune-Accused engaged two advocates who were colleagues-Appellant was examined in chief-For his cross examinations many adjournments were taken on flimsy ground-The last adjournment was taken on medical ground-Appellant found that ground factually wrong-Complained to Maharashtra Bar Council-Rejected-Revision against rejected by Bar Council of India-Filed appeal to Supreme Court by special leave-Whether apart from Advocates, concerned Judicial Magistrate be made answerable to High Court? (Yes)-On explanation of being a novice in Judicial Service-No disciplinary action against Magistrate recommended. (Para 14)
       Held : When we heard the arguments of Shri P.H. 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. (Para 14)
       (ii) Advocates Act, 1961-Chapter V Sections 35(1) and 36-Professional misconduct of an advocate-Whether in the facts of the case acts attributed to respondents-Advocates amounted to professional misconduct? (Yes)-Duty of Bar Council-Whether orders of State and Central Bar Councils are valid? (No)-Case law referred-Complaint sent to Bar Council of India for disposal.
       Held : 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. (Para 2)
       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 advocate s 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. (Para 20)
       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. (Para 22)
       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. (Para 24)
       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. (Para 26)

JUDGMENT

Thomas, J.-Leave granted.

2. 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.

3. 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.

4. 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.

5. 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 respondent s friend expired". The Judicial Magistrate yielded to that request, apparently in a very casual manner and adjourned the case to 13.9.1993.

6. On that day also the respondents sought for an adjournment but on a flippant reason. Appellant s 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.

7. 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

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2001 Supreme(SC) 851

Cases Referred (4)