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CASE NO.:

Appeal (civil) 3543 of 2001

PETITIONER:

N.G. DASTANE

Vs.

RESPONDENT:

SHRIKANT S. SHIVDE AND ANR.

DATE OF JUDGMENT: 05/05/2001

BENCH:

K.T. Thomas, R.P. Sethi & S.N. Phukan

JUDGMENT:

THOMAS, J.

Leave granted.

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We are much grieved, if not peeved, in noticing how two

advocates succeeded in tormenting a witness by seeking

numerous adjournments for cross-examining him in the Court

of a judicial magistrate. On all those days the witness had

to be present perforce and at considerable cost to him. It

became a matter of deep concern to us when we noticed that

the judicial magistrate had, on all such occasions, obliged

the advocates by granting such adjournments on the mere

asking to the incalculable inconvenience and sufferings of

the witness. When he was convinced that those two advocates

were adopting the tactics of subterfuge by putting forth

untrue excuses every time for postponing cross-examination

he demurred. But the magistrate did not help him.

Ultimately when pressed against the wall he moved the State

Bar Council for taking disciplinary proceedings against the

advocates concerned. But the State Bar Council simply shut

its doors informing him that he did not have even a prima

facie case against the delinquent advocates. He met the

same fate when he moved the Bar Council of India with a

revision petition, as the revision petition was axed down at

the threshold itself. The exasperated witness, exhausted by

all the drubbings, has now come before this Court with this

appeal by special leave.

Appellant, the aforesaid aggrieved witness, describes

himself to be an agriculturist scientist. He claims to have

worked as an Advisor in the UNO until he retired therefrom.

He filed a complaint before the Judicial Magistrate of First

Class, Pune (Maharashtra) against some accused for the

offence of theft of electricity. The accused in the said

complaint case engaged Advocate Shri Shivde (the first

respondent) and his colleague Shri Kulkarni (the second

respondent) who were practising in the courts at Pune. The

two respondent-advocates filed a joint Vakalatnama before

the trial court and the trial began in 1993. Appellant was

examined in-chief. Thus far there was no problem.

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The agony of the appellant started when the Magistrate

posted the case for cross-examination of the appellant on

30.7.1993. As per the version of the appellant, he had to

come down from New York for being cross-examined on that

day, but the second respondent advocate sought for an

adjournment on the ground that it was not possible to

conduct the cross-examination unless all the other witnesses

for the prosecution were also present in court. We have no

doubt that such a demand was not made with good faith. It

was aimed at causing unnecessary harassment to witnesses.

No other purpose could be achieved by such demand. Although

the court was conscious that insistence of presence of the

other witnesses has no legal sanction the Judicial

Magistrate conceded to the request and posted the case to

23.8.1993.

On that day, appellant and all his witnesses were

present in court. But both the respondents sought for an

adjournment, the first respondent on the premise that he was

busy outside the court, and the second respondent on the

premise that the father of the first respondents friend

expired. The Judicial Magistrate yielded to that request,

apparently in a very casual manner and adjourned the case to

13.9.1993.

On that day also the respondents sought for an

adjournment but on a flippant reason. Appellants counsel

raised objections against the prayer for adjournment.

Nevertheless the Judicial Magistrate again adjourned the

case and posted it to 16.10.1993. We may point out that the

said date was chosen by the court as the respondents

represented to the court that the said date was quite

convenient to them.

Appellant, thoroughly disgusted, had two options before

him. One was to get dropped out from the case and the other

one was to continue to suffer. He had chosen the latter and

presented himself along with all the witnesses on

16.10.1993. But alas, the respondents again asked for

adjournment on that day also. This time the adjournment was

sought on the ground that one of the respondent advocates

was out of station. It seems that the Judicial Magistrate

yielded to the request this time also and posted the case to

20.11.1993 peremptorily. It would have been a sad plight to

see how the appellant and his witnesses were walking out of

the court complex without the case registering even a wee

bit of progress in spite of his attending the Court on so

many days for the purpose of being cross-examined. His

opposite party would have laughed in his mind as to how his

advocates succeeded in tormenting the complainant by abusing

the process of court through securing adjournments after

adjournments. The complainant would have wept in his mind

for choosing a judicial forum for redressal of his

grievance.

On 20.11.1993, appellant and all his witnesses were

again present, possibly with a certitude that they would be

examined at least now because of the peremptory order passed

by the Magistrate on the previous occasion. Unfortunately,

the peremptoriness of the order did not create even a ripple

on the respondents advocates and they ventured to seek for

an adjournment again on the ground that one of the

respondents advocates was indisposed. There was not even a

suggestion as to what was the inconvenience for the

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co-advocate. Even so, the Magistrate yielded to that

request also and the case was again adjourned to 4.12.1993.

The flash point in the cauldron of the agony and

grievance of the appellant reached on 4.12.1993. He

presented himself before the court for being cross-

examined, despite all the frets and vexations suffered by

him till that day hoping that at least on this occasion

respondents would not concoct any alibi for dodging the

cross-examination. But the second respondent who was

present in the court sought for an adjournment again with a

written application, on the following premise:

Advocate Shivde (first respondent) is unable to speak

on account of the throat infection and continuous cough.

The doctor has advised him to take two weeks rest. Hence

he is unable to conduct the matter before this Honble court

today. It is therefore prayed that the hearing may kindly

be adjourned for three weeks in the interest of justice.

The Judicial Magistrate without any qualms or

sensitivity succumbed to the said tactics also and granted

the adjournment prayed for. The magistrate did not care

even to ask the second respondent why he could not conduct

the cross-examination, if his colleague first respondent is

so unwell. But the magistrate felt no difficulty to

immediately allow the request for again adjourning the case.

Of course the magistrate ordered that a medical certificate

should be produced by the first respondent and cost of

Rs.75/- should be paid to the appellant. A poor solace for

the agony inflicted on him.

According to the appellant, after the case was adjourned

on 4.12.1993, he went out of the court room and while he was

walking through the corridors of the court complex he

happened to come across the first respondent forcefully and

fluently arguing a matter before another court situated in

the same building. It was that sight which caused him to

venture to lodge the complaint against both the respondents

before the Maharashtra State Bar Council on 27.12.1993. He

had narrated the details of his complaint in the petition

presented before the State Bar Council and prayed for taking

necessary actions against the two advocates.

Both the respondents filed a joint reply to the above

complaint in which they stated, inter alia, that respondent

No.1 was suffering from severe throat infection and

temperature and was under medical treatment of Dr. Manavi

and that respondent No.1 sought adjournments in all the

cases in which prolonged cross-examination was required and

he was not in a position to speak continuously because of

severe cough problem. They did not say anything about the

large number of occasions they sought for adjourning the

cross-examination of the complainant.

The State Bar Council obtained a report from its

Advocate Member Sri B.E. Avhad. That report says that he

interrogated the parties and understood that the complaint

is without any substance. It was on the strength of the

said report that the State Bar Council has dropped further

proceedings against the respondents. The Revision Petition

was disposed of by the impugned order holding that the Bar

Council of Maharashtra was perfectly justified in passing

the impugned resolution dated 12.11.1994 and we see no

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reason to interfere with the same; no prima facie case is

made out against the respondents and there is no reason to

believe that the advocate had committed professional or

other misconduct.

When we heard the arguments of Shri PH Parekh, learned

counsel for the appellant and Sri Vijay S.Kotewal, learned

Senior counsel for the respondents we felt, apart from the

question of professional misconduct of the respondents, that

the Judicial Magistrate, who yielded to all the

procrastinative tactics, should be made answerable to the

High Court so that action could be taken against the

Magistrate on the administrative side for such serious

laches. We, therefore, called upon the said Magistrate to

show cause why we shall not make adverse remarks against the

magistrate in our judgment. The said Judicial Magistrate

has now explained that she had only started working as a

regular magistrate just after completing the training on

6.7.1993. If so, the Judicial Magistrate would have been a

novice in the judicial service. On that ground alone, we

persuade ourselves to refrain from recommending any

disciplinary action against the Magistrate. Be that as it

may, we now proceed to consider whether the acts attributed

to the respondents amounted to professional misconduct.

Chapter V of the Advocates Act 1961 (for short the

Act) contains provisions for dealing with the conduct of

Advocates. The word misconduct is not defined in the Act.

Section 35 of the Act indicates that the misconduct referred

to therein is of a much wider import. This can be noticed

from the wordings employed in sub-section (I) of that

Section. It is extracted herein:

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.

The collocation of the words guilty of professional or

other misconduct has been used for the purpose of

conferring power on the Disciplinary Committee of the State

Bar Council. It is for equipping the Bar Council with the

binocular as well as whip to be on the qui vive for tracing

out delinquent advocates who transgress the norms or

standards expected of them in the discharge of their

professional duties. The central function of the legal

profession is to help promotion of administration of

justice. Any misdemeanor or misdeed or misbehaviour can

become an act of delinquency, if it infringes such norms or

standards and it can be regarded as misconduct.

In Blacks Law Dictionary misconduct is defined as a

transgression of some established and definite rule of

action, a forbidden act, a dereliction from duty, unlawful

behaviour, willful in character, improper or wrong

behaviour; its synonyms are misdemeanor, misdeed,

misbehaviour, delinquency, impropriety, mismanagement,

offense, but not negligence or carelessness.

The expression professional misconduct was attempted

to be defined by Darling J. in A Solicitor ex p the Law

Society, in re [1912 (1) KB 302) in the following terms:

If it is shown that an advocate in the pursuit of his

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profession has done something with regard to it which would

be reasonably regarded as disgraceful or dishonourable by

his professional brethren of good repute and competency,

then it is open to say that he is guilty of professional

misconduct.

In RD Saxena vs. Balram Prasad Sharma [2000 (7) SCC

264] this Court has quoted the above definition rendered by

Darling J., which was subsequently approved by the Privy

Council in George Frier Grahame vs. Attorney General (AIR

1936 PC 224) and then observed thus:

Misconduct envisaged in Section 35 of the Advocates Act

is not defined. The section uses the expression

misconduct, professional or otherwise. The word

misconduct is a relative term. It has to be considered

with reference to the subject matter and the context wherein

such term occurs. It literally means wrong conduct or

improper conduct.

Advocate abusing the process of court is guilty of

misconduct. When witnesses are present in Court for

examination the advocate concerned has a duty to see that

their examination is conducted. We remind that witnesses

who come to the Court, on being called by the Court, do so

as they have no other option, and such witnesses are also

responsible citizens who have other work to attend for eking

out livelihood. They cannot be treated as less respectables

to be told to come again and again just to suit the

convenience of the advocate concerned. If the advocate has

any unavoidable inconvenience it is his duty to make other

arrangements for examining the witnesses who is present in

Court. Seeking adjournments for postponing the examination

of witnesses who are present in Court even without making

other arrangements for examining such witnesses is a

dereliction of advocates duty to the Court as that would

cause much harassment and hardship to the witnesses. Such

dereliction if repeated would amount to misconduct of the

advocate concerned. Legal profession must be purified from

such abuses of the Court procedures. Tactics of filibuster,

if adopted by an advocate, is also professional misconduct.

In State of UP vs. Shambhu Nath singh [JT 2001 (4) SC

319] this Court has deprecated the practice of Courts

adjourning cases without examination of witnesses when such

witnesses are in attendance. We reminded the Courts thus:

We make it abundantly clear that if a witness is

present in court he must be examined on that day. The court

must know that most of the witnesses could attend the court

only at heavy cost to them, after keeping aside their own

avocation. Certainly they incur suffering and loss of

income. The meagre amount of Bhatta (allowance) which a

witness may be paid by the court is generally a poor solace

for the financial loss incurred by him. It is a sad plight

in the trial courts that witnesses who are called through

summons or other processes stand at the doorstep from

morning till evening only to be told at the end of the day

that the case is adjourned to another day. This primitive

practice must be reformed by presiding officers of the trial

courts and it can be reformed by every one provided the

presiding officer concerned has a commitment to duty. No

sadistic pleasure in seeing how other persons summoned by

him as witnesses are stranded on account of the dimension of

his judicial powers can be a persuading factor for granting

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such adjournments lavishly, that too in a casual manner.

When the Bar Council in its wider scope of supervision

over the conduct of advocates in their professional duties

comes across any instance of such misconduct it is the duty

of the Bar Council concerned to refer the matter to its

Disciplinary Committee. The expression reason to believe

is employed in Section 35 of the Act only for the limited

purpose of using it as a filter for excluding frivolous

complaints against advocates. If the complaint is genuine

and if the complaint is not lodged with the sole purpose of

harassing an advocate or if it is not actuated by mala

fides, the Bar Council has a statutory duty to forward the

complaint to the Disciplinary Committee.

In Bar Council of Maharashtra vs. MV Dabholkar [1976

(2) SCR 48] a four Judge Bench of this Court had held that

the requirement of reason to believe cannot be converted

into a formalised procedural road block, it being

essentially a barrier against frivolous enquiries.

In our opinion, the State Bar Council has abdicated its

duties when it was found that there was no prima facie case

for the Disciplinary Committee to take up. The Bar Council

of India also went woefully wrong in holding that there was

no case for revision at all. In our considered view the

appellant complainant has made out a very strong prima facie

case for the Disciplinary Committee of the State Bar Council

to proceed with. We, therefore, set aside the order of the

State Bar Council as well as that of the Bar Council of

India and we hold that the complaint of the appellant would

stand referred to the Disciplinary Committee of the State

Bar Council.

Section 36(2) of the Advocates Act reads thus:

Notwithstanding anything contained in this Chapter, the

disciplinary committee of the Bar Council of India may,

either of its own motion or on a report by any State Bar

Council or an application made to it by any person

interested, withdraw for inquiry before itself any

proceedings for disciplinary action against any advocate

pending before the disciplinary committee of any State Bar

Council and dispose of the same.

As the complaint is now, by virtue of this judgment,

pending before the Disciplinary Committee of the State Bar

Council we consider the question whether it is appropriate

that the Bar council of India takes it up for the purpose of

referring it to its Disciplinary Committee. As the

misconduct alleged is of the year 1993-94 the ends of

justice demand that the Disciplinary Committee of the Bar

Council of India should now deal with the complaint. For

that purpose we order that the complaint of the appellant

would stand referred to the Bar Council of India under

Section 36 of the Advocates Act. Now we direct the said

Disciplinary Committee to adopt such steps as are necessary

for the disposal of the complaint in accordance with law and

in the light of the observations made above.

The appeal is disposed of accordingly.

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