2022 Supreme(Del) 23

IN THE HIGH COURT OF DELHI AT NEW DELHI
PRATHIBA M. SINGH, J.
Mohit Bansal - Petitioner
Versus
Institute of Chartered Accountants of India & ANR. – Respondent
W.P.(C) 6819 of 2020 & CM APPL. 23588 of 2020
Decided on : 21-01-2022

Point of Law: A person who is sought to be removed due to a conviction of an offence involving ‘moral turpitude’ under Section 8(v) of Act. It is only when there are allegations of professional or other misconduct under Section 8(vi) of Act, read with Schedules to Act, that occasion to conduct an inquiry under Section 21 of Act, before Disciplinary Directorate, arises. When concerned with offences involving ‘moral turpitude’, said section does not apply.

Headnote:

Constitution of India, 1950 - Article 22 – Chartered Accountants Act, 1949 - Sections 8, 8(v) read with Section 20(1)(d) - Probation of Offenders Act, 1958 - Sections 4 and 6 - 376(2)(g) - Criminal Procedure Code 1973 - Section 482 – Indian Penal Code, 1860 - Sections 354, 506-II and 376(2)(g) - Rehabilitation of Offenders Act, 1974 - Notice - Assault or criminal force to woman with intent to outrage her modesty – Rape – Professional Misconduct – ‘Moral turpitude’ - Whether Petitioner can be held to be suffering from disability under Section 8(v) - Whether in case of a conviction for an offence involving ‘moral turpitude’, should said person be barred forever from practicing as Chartered Accountant - Petitioner had cleared his CA Foundation and had received the certificate in respect thereof - Post FIR having been registered against Petitioner, investigation was conducted, and after completion of investigation, charges under Section 366 IPC, Section 376(2)(g) IPC and Section 506-II IPC, were framed against him. In the meantime, he had appeared in next level of examinations and qualified as a Chartered Accountant.

Finding of the court:

A conviction for an offence involving ‘moral turpitude’ punishable with imprisonment- is a third and higher class of offence under Section 8(v) of the Act and is stipulated as a separate class of disabilities which bars a person’s name from being entered or borne in/continued in the register of the ICAI - There are, broadly, two categories of misconduct contemplated under the Act – ‘professional misconduct’ and ‘other misconduct’. These two types of misconduct are covered under Section 8 (vi) read with Section 22 and the Schedules to the act - ICAI shall award reasonable time for the Petitioner to file a fresh reply to the impugned notices, and for him to be heard by the ICAI in accordance with the principles of natural justice. Upon the said hearing being concluded, ICAI shall proceed in accordance with law - As is evident from the facts of the present case, the Petitioner, despite a criminal case being pending at the time of his enrolment as a Chartered Account and thereafter his conviction, was enrolled and was permitted to practice as a CA - A perusal of Section 8(v) shows that it is in two parts. It contemplates a disability from being enrolled as a CA, on being convicted in two classes of offences – The first class of offences are those that involve ‘moral turpitude’ and are punishable with transportation or imprisonment, The second class are offences that are committed by a person in their professional capacity, which are not of a technical nature - There is a clear need for the ICAI to create a framework wherein there is proper disclosure by candidates who apply to become Chartered Accountants, at the inception itself. There is also a need for a continuing disclosure, may be on an annual basis for members to inform the ICAI if there are any criminal cases / conviction etc., against them, so that the ICAI is not kept in the dark. The power, discretion and duty of ensuring the purity of the Register of Members is upon the ICAI. Thus, in the case of convictions, the factum of the said conviction and the offences qua which the applicant was convicted ought to be disclosed - ICAI shall accordingly frame a policy and a mechanism, if not already in existence, for disclosure by members both at the inception as also on a periodic basis thereafter, of any criminal cases or convictions so that the spirit and intent of the statute is given effect to and the ICAI is not in the dark about the same until it is notified by some information or complaint.

Result: Writ petition dismissed