1. Professional misconduct by an advocate involving fraud and forgery — Complaint under Advocates Act — Review of disciplinary order by Bar Council of India. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 )
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2018 Supreme(SC) 408
SUPREME COURT OF INDIA
A.K. SIKRI, ASHOK BHUSHAN, JJ.
M/s. Advanta India Ltd. - Appellants
Versus
B.N. Shivanna - Respondents
Civil Appeal No. 11113 of 2016
Decided On : 21-02-2018
Advocates Appeared:
For the Appellants :B.K. Sampath Kumar, Balaji Srinivasan, Ms. Vaishnavi Subrahmanyam, Ms. Pratiksha Mishra, Abhishek Bharti, Advocates.
For the Respondents:Aljo K. Joseph, Sayooj Mohandas. M., Vishal Arun, Advocates.
For the Appellants :B.K. Sampath Kumar, Balaji Srinivasan, Ms. Vaishnavi Subrahmanyam, Ms. Pratiksha Mishra, Abhishek Bharti, Advocates.
For the Respondents:Aljo K. Joseph, Sayooj Mohandas. M., Vishal Arun, Advocates.
IMPORTANT POINT
Reviewing authority cannot become appellate authority over its own order passed earlier.
Headnote:(a) Advocates Act, 1961 – Section 44 – Review by BCI – BCI allowing review petition on ground of not allowing the respondent to cross-examine PW-1 – This ground was taken before State Disciplinary Committee and rejected by the Committee – In appeal BCI endorsing the same – Revisiting the issue on same ground, held, beyond jurisdiction – Reviewing authority cannot become appellate authority over its own order passed earlier. (Para 16, 17, 19)
(2010) 6 SCC 193 – Relied upon
(1971) 3 SCC 5 – Referred
(b) Administration of justice – Disciplinary Committee of BCI reducing punishment awarded by State Disciplinary Committee – Appeal thereagainst pending before Supreme Court – BCI in review setting aside the punishment altogether – Appellant withdrawing appeal having been rendered infructuous – Filing Appeal challenging review order – Supreme Court allowing the appeal – Appellant given liberty to apply for restoration of the appeal against reduction of punishment to respondent. (Para 24)
Facts of the case:
On a complaint alleging the commission of serious acts of professional misconduct against an advocate filed with the Karnataka State Bar Council, the complaint was referred to its Disciplinary Committee. It examined the matter after giving due opportunity to both the parties to lead their respective evidences and held the respondent guilty of the charges of misconduct levelled against him.
The State Bar Council debarred the respondent from practicing for life and his name was also removed from the rolls of the Bar Council.
Statutory appeal was preferred by the respondent before the BCI which reduced the punishment awarded to the respondent by debarring him for a period of 18 months, along with fine of Rs.25,000/-. The respondent filed the review petition under Section 48AA of the Advocates Act, 1961 seeking review of order by the BCI. The Bar Council has allowed the review petition by setting aside the previous order and directing fresh consideration of the matter.
The power of review with the Disciplinary Committee of the Bar Council of India (BCI) is in question in this appeal.
Finding of the Court:
Review by BCI is beyond jurisdiction.
Result: Appeal allowed.
Legal Category Hierarchy
Table of Contents
2. Maintainability of review petition — Scope of review jurisdiction of the Bar Council of India versus the limited scope under the Code of Civil Procedure. (Para 13 )
3. BCI exceeded review powers by revisiting findings of fact already decided on the same material and allowing a party to benefit from its own defaults. (Para 15 , 16 , 17 , 18 , 19 , 20 )
4. Review jurisdiction, though wider than the Code of Civil Procedure, cannot transform the reviewing authority into an appellate authority over its own previous order. (Para 19 )
5. Review order set aside — Earlier disciplinary order revived — Liberty granted to challenge the reduction of punishment in a restored appeal. (Para 23 , 24 , 25 , 26 )
6. Is the review jurisdiction of the Bar Council of India limited to the parameters of the Code of Civil Procedure?
No, the review power of the Disciplinary Committee and the Bar Council of India is not confined to the narrow parameters laid down in Section 114 and Order 47 Rule 1 of the Code of Civil Procedure and is generally wider. (Para 13 , 14 , 19 )
7. Can a reviewing authority overturn its own findings of fact based on the same material and arguments?
No. While review powers are broad, they cannot be extended to the point where the reviewing authority becomes an appellate authority over its own order, overturning findings of fact based on the same material and arguments previously considered. (Para 19 )
8. Can a party seek review on grounds of denied opportunity if the denial resulted from their own dilatory tactics?
No. Under the maxim Nullus Commodum Capere Potest De Injuria Sua Propria, a person who manipulates a process or frustrates legal rights through their own wrong cannot be permitted to take advantage of that wrong. (Para 16 , 20 )
JUDGMENT :
A.K. SIKRI, J.
1. An important question of law that needs to be determined in this appeal pertains to the power of review with the Disciplinary Committee of the Bar Council of India (BCI). On a complaint filed by the appellant against the respondent, who is an Advocate, alleging the commission of serious acts of professional misconduct, with the Karnataka State Bar Council, the complaint was referred to its Disciplinary Committee. It examined the matter after giving due opportunity to both the parties to lead their respective evidences and held the respondent guilty of the charges of misconduct levelled against him. As a sequitur, the order dated July 31, 2005 was passed by the State Bar Council whereby the respondent was debarred from practicing for life and his name was also removed from the rolls of the Bar Council.
2. Statutory appeal was preferred by the respondent before the BCI which disposed of the said appeal vide the Order dated September 10, 2011. It reduced the punishment awarded to the respondent by debarring him for a period of 18 months, along with fine of Rs.25,000/-. The respondent filed the review petition under section 48AA of the Advocates Act, 1961 seeking review of order dated September 10, 2011 by the BCI. The Bar Council has allowed the review petition vide order dated July 11, 2015 by setting aside the previous order and directing fresh consideration of the matter. It is this order passed in the review petition which is impugned in these proceedings.
3. Having given the aforesaid introductory remarks, we may now state the fact of the matter in detail:
As per the complaint of the appellant company, it is engaged in the research, production and distribution of seeds and hybrids such as sunflowers, maize, cotton, rice, bajra and sorghum. The respondent herein has a long history with the appellant company who initially joined them as a Marketing Executive in 1998. However, he left that job after a brief period and then returned in the capacity of Legal Counsel. According to the appellant, it was at this juncture that devised an elaborate ploy to swindle the appellant company out of lakhs of rupees. It all began when a Police Constable came to the appellant's office multiple times, beginning in September, 2000, claiming that he was there to execute warrants against the Managing Director, CFO and other top executives of the appellant company. The appellant automatically called their legal counsel, i.e. the respondent herein, to deal with the issue. The respondent had a long conversation with the Police Constable at the end of which he informed the appellant that numerous farmers had apparently filed complaints against the company and it was these large numbers of complaints the Police Constable was concerned with. Each visit of the Constable's followed the same pattern.
4. The appellant further alleged in the complaint that the respondent then advised the appellant company to file 631 criminal petitions to quash the alleged complaints filed against them. He painted a picture where the arrest of the appellant's top executives was imminent and further went to contend that this dire situation could only be staved off if the criminal petitions were filed. He introduced Ms. Gowri as the vendor from whom the stamps for court fees would be purchased. The respondent stated that each petition would require a court fee of Rs.10,000/- (Rupees Ten Thousand only) to be filed - a statement that is blatantly false. Misled by the respondent, the appellant remitted Rs.62,51,259/- (Rupees Sixty Two Lakh Fifty One Thousand Two Hundred and Fifty Nine only) towards court fees for filing the criminal petitions. In order to make his lie believable, the respondent issued a receipt signed by Ms. Gowri for the amount received as the court fees. Further, respondent also stated that other counsels were required to deal with the criminal petitions and urged the appellant company to retain three persons he introduced as CC Narayana,
