Judgment

GUPTA, J.:- This is an appeal under Section 38 of the Advocates Act, 1961. In a proceeding transferred to it under Section 36B of the Act, the Bar Council of India by its order dated 17 April, 1977 found that the appellant was guilty of professional misconduct and suspended him from practice for a period of one year. The complaint on which the proceeding was initiated was filed in the Gujarat Bar Council on 9th October, 1971.

2. Section 35 (1) of the Advocates Act, 1961 reads :

"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."

3. In Bar Council of Maharashtra v. M. V. Dabholkar, (1976) 1 SCR 306 this Court having examined the scheme and the provisions of the Advocates Act observed :

"It is apparent that a State Bar Council not only receives a complaint but is required to apply its mind to find out whether there is any reason to believe that any advocate has been guilty of professional or other misconduct. The Bar Council of a State acts on that reasoned belief...........

............. The Bar Council acts as the sentinel of professional code of conduct and is vitally interested in the rights and privileges of the advocates as well as the purity and dignity of the profession.

.............the function of the Bar Council in entertaining complaints against advocates is when the Bar Council has reasonable belief that there is a prima facie case of misconduct that a disciplinary committee is entrusted with such inquiry ........"

4. In the case before us the Bar Council of Gujarat passed a Resolution on 16th November, 1971 referring several complaints against different advocates including the one against the appellant to the Disciplinary Committee of the Bar Council. The Resolution reads :

"Resolved that the following complaints be and are hereby referred to the Disciplinary Committee of the Bar Council."

The names of the advocates and the complaints in which they were concerned were listed. Nothing appears from the record of the case to suggest that before referring the complaint against the appellant to the Disciplinary Committee the State Bar Council applied its mind to the allegations made in the complaint and found that there was a prima facie case to go before the Disciplinary Committee.

5. In Dabholkars case (AIR 1975 SC 2092) referred to above, a Bench of seven Judges decided the question whether the Bar Council of a State was "a person aggrieved" to maintain an appeal under Section 38 of the Advocates Act, the merits of the individual cases were left to be decided by another Bench. Our attention is drawn by counsel for Bar Council of India to the following observation in the judgment of this Court deciding the merits of the cases (1976) 2 SCR 48

"The requirement of reason to believe cannot be converted into a formalised procedural road block, it being essentially a barrier against frivolous enquiries. It is implicit in the resolution of the Bar Council, when it says that it has considered the complaint and decided to refer the matter to the disciplinary committee, that it had reason to believe, as prescribed by the statute."

6. But in the case before us the resolution does not even say that the State Bar Council had considered the complaint and found that there was a prima facie case. It must therefore be held that the reference by the State Bar Council to the Disciplinary Committee was incompetent and that being so the proceedings before the Disciplinary Committee of Bar Council of Gujarat and also before the Disciplinary Committee of the Bar Council of India on transfer were invalid. In the view we take it is not necessary to consider the merits of the case.

7. The appeal is allowed and the order of the Disciplinary Committee of the Bar Council of India suspending the appellant from practice for one year is set aside. There will be no ord