IMPORTANT POINT
Misconduct has not been defined in Advocates Act, but it envisages breach of discipline and is wide enough to include wrongful omission or commissions whether done or omitted intentionally or unintentionally.

JUDGMENT

S.B. Sinha, J.-

Introduction :

An order of the Bar Council of India dated 27.2.1999 passed in BCI TR No. 73/1997 refusing to enquire into a complaint of purported misconduct on the part of the respondent herein is in question in this appeal preferred by the Appellant herein under Section 38 of the Advocates Act, 1961.

Background Facts :

2. The relationship between the appellant and the respondents herein is that of landlords and tenant. A rent control proceeding was initiated by the respondents against the appellant. While the rent control proceeding was pending in the small causes court, they allegedly misconducted themselves by reason of following acts of omissions and commissions:-

(1) On 8.10.1993 when the appellant came out of the court hall of the said Court after attending the appeal pending there, the first respondent allegedly came from behind and hit him on his back and ran away.

(2) On 26.10.1993 while the appellant was coming out of the court hall, the first respondent accompanied with some rowdy elements threatened to kill him. The matter was allegedly reported to the police on the same day.

(3) On 1.3.1995 when the learned Xth Judge left for his chamber during the lunch break and while the appellant was leaving the court hall along with his advocate Shri S. Vijayranjan, the first respondent kicked him on the knee of his left leg in the court room with an intention to cause injury and further asked him not to appear in the court for evidence.

3. The disciplinary committee of the Bar Council of Tamil Nadu upon receipt of the said complaint of the appellant herein initiated a proceeding. The matter ultimately appeared to have been transferred to the disciplinary committee of the Bar Council of India.

Impugned Order of the Bar Council :

4. The disciplinary committee of the Bar Council of India noticed that in relation to the aforementioned acts of omission and commission on the part of the respondents, no criminal proceeding was initiated by filing a complaint petition by the appellant. No charge-sheet had also been filed by the police in relation to the occurrence dated 26.10.1993 wherefor an FIR had been lodged. It was further accepted that the first respondent had not been appearing in the aforementioned rent control proceedings as an advocate but as a party in person. Having regard to the fact that till the date of passing of the impugned order neither the appellant herein produced any document to substantiate any follow up action on his part in respect of complaint filed by him before the police authority, nor did he file any private complaint, the committee was prime facie of the view that the factum of occurrence of the said incidents are not reliable. Further, it was noticed that the first respondent appeared in the said litigation not as advocate but as litigant in person.

Submissions :

5. Mr. S.B. Upadhyay, learned counsel appearing on behalf of the appellant, inter alia, would submit that under Section 35 of the Advocates Act an advocate on the roll of the Bar Council can be proceeded against for committing any misconduct which may not be confined to professional misconduct; the Bar Council grossly erred in passing the impugned order. Strong reliance in support of the said contention has been placed on a decision of this Court in D An Advocate of the Supreme Court reported in [1955(2) SCR 1006]. The learned counsel would contend that having regard to the fact that the first respondent assaulted the complainant, asked him not to proceed with the case and on the third occasion kicked him as a result whereof he fell down are clear pointers to the fact that such acts are not expected of a member of a legal profession and, thus, the same must be held to be acts of misconduct. Learned counsel in support of said contention relied upon Himat Ali Khan v. Ishwar Prasad Arya and Ors. [1997(3) SCC 131] and N.G. Dastane v. Shrikant S. Shivde & Anr. [2001(6) SCC 135