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 Hikmat Ali khan v. Ishwar prasadarya and ors

Ishwar Prasad Arya, respondent No. 1, was registered as an advocate with the Bar Council of Uttar Pradesh and was practicing at Badaun. An incident took place on May 18, 1971 during lunch interval at about 1.55 p.m., in which respondent No. 1 assaulted his opponent Radhey Shyam in the Court room of Magistrate, Bisauli at Badaun with a knife. A pistol shot is also said to have been fired by him at the time of incident.

After investigation he was prosecuted for offences under Section 307 of the Indian Penal Code and Section 25 of the Arms Act.

The 1st Temporary Civil and Sessions Judge, by his judgment dated July 3, 1972, convicted him of the said offence and sentenced him to undergo rigorous imprisonment for three years for the offence under Section 307, I.P.C. and for a period of nine months for offence under Section 25 of the Arms Act.

A copy of letter No. dated April 28, 1976 purporting to have been sent by Shri L.R. Singh, Deputy Secretary, Ministry of Home, U.P., Lucknow, addressed to the District Magistrate, Badaun was received in the Court of the 3rd Additional District and Session Judge. Badaun was responsible for executing the order of the court of the 1st Temporary Civil & Sessions Judge on its abolition.

In the said letter it was stated that the Governor has been pleased to suspend the conviction of Ishwar Prasad Arya under Article 161 of the Constitution with immediate effect and until further orders he should remain free. After receiving the copy of the said letter dated April 28, 1979, stayed the proceedings in the case and despite repeated inquiries by the court from the State Government about the suspension of the sentences the execution of the sentence awarded to respondent remained suspended till September 7, 1977,

when on receipt of a crash radiogram message from the Home Ministry, Lucknow, it was found that the letter dated April 28, 1976 was fraudulent and thereupon a warrant for the arrest of respondent no.1 was issued by the court on September 28, 1977 and he was arrested the same day and was sent to Badaun Jail to undergo the imprisonment.

On December 9, 1977 Shri G.S. Sharma, 3rd Additional District & Session Judge, Badaun, sent a complaint containing these facts to the Chairman, Bar council of U.P., for taking action against respondent No. 1 under section 35 of the Advocates Act, 1961. On the basis of the said complaint disciplinary proceedings were initiated against respondent No. 1 by the Bar Council of U.P.it has directed that respondent No. 1 be debarred from practicing as an advocate for a period of two years from the date of the service of the order.

Respondent No.1 filed an appeal (D.C. Appeal No. 4 of 1982) in the Bar Council of India against the order dated January 30, 1982 passed by the Disciplinary Committee of the Bar Council of U.P.

ISSUE:

The submission of appellant was that having regard to the gravity of the misconduct of respondent No. 1 in assaulting his opponent in the Court room with a knife and his having been committed the offence under Section 307, I.P.C. and his being sentenced to undergo rigorous imprisonment for three years in connection with the said incident, the punishment of removal of the name of respondent No. 1 from the roll of advocates should have been imposed on him and that the Disciplinary Committee of the Bar Council of U. P. was in error in imposing the light punishment of debarring respondent No. 1 from practicing as an advocate for a period of two years only and that this was a fit case in which the appeal filed by the appellant should have been allowed by the Disciplinary Committee of the Bar Council of India.

So, whether the respondent No. 1 be debarred from practicing as an advocate?

CONCLUSION

The Disciplinary Committee of the Bar Council of India, while dealing with the appeal of respondent No. 1 as well as the cross appeal of the appellant which were filed against the said order of the Disciplinary Committee of the Bar Council of U.P. allowing D.C Appeal No. 17 of 1984 filed by respondent No. 1 cannot, therefore, be sustained and has to be set aside. Having regard to the findings recorded by the Disciplinary Committee of the Bar Council of U.P. regarding the mis-conduct of respondent No. 1 that has been found established from the record, we find no merit in D.C Appeal of 1984 filed by respondent No. 1 against order dated March 25, 1984 passed by the Disciplinary Committee of the Bar Council of U.P and the said appeal is liable to be dismissed.

It was held that the acts of mis-conduct found established are serious in nature. Under Sub-section (3) of Section 35 of the Act the Disciplinary Committee of the State Bar Council is empowered to pass an order imposing punishment on an advocate found guilty of professional or other mis-conduct. Such punishment can be reprimand under Clause (b), suspension from practice for a certain period under Clause (c) and removal of the name of the advocate from the State roll of advocate under Clause (d), depending on the gravity of the mis-conduct found established. The punishment of removal of the name from the roll of advocates is called for where the misconduct is such as to show that the advocate is unworthy of remaining in the profession. In this context, it may be pointed out that under Section 24(A) of the Act a person who is convicted of an offence involving moral turpitude is disqualified for being admitted as an advocate on the State roll of advocates. This means that the conduct involving conviction of an offence involving moral turpitude which would disqualify a person from being enrolled as an advocate has to be considered a serious misconduct when found to have been committed by a person who is enrolled as an advocate and it would call for the imposition of the punishment of removal of the name of the advocate from the roll of advocates.

In the instant case respondent No. 1 has been convicted of the offence of attempting to commit murder punishable under Section 307, IPC. He had assaulted his opponent in the Court room with a knife. The gravity of the mis-conduct committed by him is such as to show that he is unworthy of remaining in the profession. The said mis-conduct, therefore, called for the imposition of the punishment of removal of the name of respondent No. 1 from the State roll of advocates and the Disciplinary Committee of the Bar Council of U. P., in passing the punishment of debarring respondent No. 1 from practicing for a period of three years, has failed to take note of gravity of the misconduct committed by respondent No. 1. Having regard to the facts of the case the proper punishment to be imposed on respondent No. 1 under Section 35 of the Act should have been to direct the removal of his name from the State roll of advocates. The appeal filed by the appellant, therefore, deserves to be allowed. Finally, court held that the respondents name should be removed from the rolls.

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Anusha Singh