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PETITIONER:

HIKMAT ALI KHAN

Vs.

RESPONDENT:

ISHWAR PRASAD ARYA & ORS.

DATE OF JUDGMENT: 28/01/1997

BENCH:

S.C. AGRAWAL, SUJATA V. MANOHAR

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

S.C. AGRAWAL. J.

Ishwar Prasad Arya, respondent No.1, was registered as

an advocate with the Bar Council of Uttar Pradesh and was

practising 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 Munsif/Magistrate, Bisauli at Badaun with a knife. A

pistal shot is also said to have been fired by him at the

time of incident. After investigation he was prosecuted for

offencesunder Section 307 of the Indian Penal Code and

section 25 of the Arms Act. The Ist 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. The conviction and

sentence for the offence under Section 307 I.P.C. were

maintained by the High Court by its judgment dated September

10, 1975 in Criminal Appeal No. 1873 of 1972 but he was

given the benefit of doubt regarding offence under Section

25 of Arms Act and the conviction and sentence for the said

offence were set aside. Before he could be arrested to under

go the punishment of rigorous imprisonment for three years

for offence under Section 307 I.P.C., a copy of letter No.

Pr. VI/Chh. Pa XXIII - 2016-75-76 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 bearing endorsement No.

1513(II)-75-76 was received in the Court of the IIIrd

Additional District and Session Judge, Badaun, who was

responsible for executing the order of the court of the Ist

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

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the sentences the execution of the sentence awarded to

respondent remained suspended till September 27, 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, IIIrd 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(hereinafter referred to as the Act').

On the basis of the said complaint disciplinary proceedings

(D.C. Case No. 70 of 1981) were initiated against respondent

No. 1 by the Bar Council of U.P. By order dated January

30,1982 the Disciplinary committee of the Bar Council of

U.P. found respondent No.1 guilty of gross professional mis-

conduct by taking the benefit himself of a forged and

fabricated document which had been prepared at his behest.

The Disciplinary Committee of the Bar council of U.P.

directed that respondent No. 1 be debarred from practising

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. The said

Civil and Session 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. The

conviction and sentence for the offence under Section 307

I.P.C. were maintained by the High Court by its judgment

dated September 10,1975 in Criminal Appeal No. 1873 of 1972

but he was given the benefit of doubt regarding offence

under Section 25 of the Arm Act and the conviction and

sentence for the said offence were set aside. Before he

could be arrested to undergo the punishment of rigorous

imprisonment for three years for offence under section 307

I.P.C., a copy of letter No. Pr. VI/Chh. Pa XXIII-2016-75-76

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 and Sessions Judge,

Badaun bearing endorsement No. 1513(II)-75-76 was received

in the court of the IIIrd Additional District and Sessions

Judge, Badaun who was responsible for executing the order

of the court of the Ist 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 28,1976 the IIIrd Additional District & Sessions

Judge, on April 30,1976 stayed the proceedings in the case

and despite repeated inquiries by the court from the State

Government about the suspension of the sentence the

execution of the sentence awarded to respondent remained

suspended till September 27, 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,

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IIIrd Additional District & Sessions 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(hereinafter

referred to as 'the Act'). On the basis of the said

complaint disciplinary proceedings (D.C. Case No. 70 of

1981) were initiated against respondent No.1 by the Bar

Council of U.P. By order dated January 30,1982 the

Disciplinary Committee of the Bar Council of U.P. found

respondent No.1 guilty of gross professional mis-conduct by

taking the benefit himself of a forged and fabricated

document which had been prepared at his behest. The

Disciplinary Committee of the Bar Council of U.P. directed

that respondent No.1 be debarred from practising 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. The said appeal was

allowed by the Disciplinary Committee of the Bar Council of

India by order dated June 8,1984 and the order of the

Disciplinary Committee of the Bar Council of U.P dated

January 30, 1982 was set aside on the view that there was no

material on the basis of which it could reasonably be held

that respondent No. 1 had prepared the document which was

subsequently found forged.

The appellant, Hikmat Ali Khan, had also submitted a

complaint against respondent No.1 to the Secretary, Bar

Council of U.P., where in it was stated that by order dated

July 3, 1972 passed by the Temporary Civil & Session Judge,

Badaun the respondent had been convicted and sentenced to

three years rigorous imprisonment under Section 307 I.P.C.

and his appeal had been dismissed by the High Court by

judgment dated September 10, 1975 and even after the

dismissal of his appeal respondent No. 1 he remained out of

jail till September 27, 1978 on the basis of a forged and

fraudulent document purported to have been sent by the

Deputy Secretary, Ministry of Home, U.P., Lucknow and that

during the said period he continued to practice as an

Advocate. In the said complaint, it was also mentioned that

the name of respondent No.1 is noted as a bad character in

register No. 8 of Police Station, Wazirgang, District Badaun

and further that a number of criminal case have been

registered against him. It was prayed that a fresh inquiry

may be made in the matter and in case the facts are proved

against respondent No. 1 his registration as an advocate may

be cancelled since he is a blot to the names of all the

advocates. On the basis of the said complaint of the

appellant proceedings (D.C. Case No. 40 of 1983) were

initiated against respondent No.1 by the Bar Council of U.P.

IN the said proceedings, respondent No. 1 appeared and filed

his written statement, but thereafter he did not appear and

participate in the proceedings. The Disciplinary Committee

of Bar Council of U.P proceeded ex parte against him. By

order dated March 25, 1984 the Disciplinary Committee found

that respondent No. 1 was convicted and sentenced under

Section 307 I.P.C and under Section 25 of the Arm Act and

that his names of the bad character are entered. The

Disciplinary Committee held that it is unbecoming of an

advocate to earn such a bad reputation in the society and

that respondent No. 1 was liable to be punished. The

Disciplinary Committee of the Bar Council of U.P. directed

that respondent No. 1 be debarred from practising as an

advocate for a period of three years. Respondent No. 1

filed an appeal (D.C. Appeal No. 17 of 1984) against the

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said order passed by the Disciplinary Committee of the Bar

Council of U.P. The appellant also filed an appeal (D.C.

Appeal No. 17A of 1984) against the said order. Respondent

No. 1, in his appeal, prayed that the punishment imposed by

the Disciplinary Committee of the Bar Council of U.P. be set

aside; the appellant, in his appeal, on the other hand,

wanted the said punishment to be enhanced and his name to be

removed from the roll of advocates. Both the appeals were

disposed of by the Disciplinary Committee of the Bar Council

of the India by order dated September 8, 1985. It was

observed that the matter has already been considered by the

Disciplinary Committee of the Bar Council of India in its

order dated June 8, 1984 in D.C. Appeal No. 4 of 1982

whereby the order of the Bar Council of U.P. dated January

30, 1982 suspending respondent No. 1 from practice for three

years had been set aside. The Disciplinary Committee of the

Bar Council of India held that there was no choice left with

it but to accept the appeal in view of the order dated June

8, 1984 passed by the Disciplinary Committee of the Bar

Council of U.P. dated March 25, 1984 in D.C. Case No. 40 of

1983 was set aside. Consequently, the appeal filed by the

appellant was dismissed. Feeling aggrieved by the said order

dated September 8, 1985 passed by the Disciplinary Committee

of the Bar Council of India allowing D.C. Appeal No. 17 of

1984 filed by respondent No. 1 and dismissing D.C Appeal No.

17A of 1984 filed by him, the appellant has filed this

appeal.

Shri Subodh Markendaya, the learned counsel for the

appellant, has urged that in passing the order dated

September 8, 1985 the Disciplinary Committee of the Bar

Council of India has failed to appreciate that in the

earlier order dated June 8, 1984 in D.C. Appeal No. 4 of

1982 the Disciplinary Committee of the Bar Council of India

had given the benefit of doubt to respondent No. 1 in

respect of fabrication of letter dated April 28, 1976 on the

basis of which he was able to avoid being arrested for a

period of about 16 months from April 30, 1976 to September

28, 1977 for undergoing the sentence of rigorous

imprisonment imposed on him under section 307 I.P.C and that

in the said proceedings the Disciplinary Committee of the

Bar Council of India had not considered the conduct of

respondent No. 1 involving his conviction for the offence

under Section 307 I.P.C and his being sentenced to rigorous

imprisonment for three years. According to Shri Markendaya,

the said conduct of respondent No.1 was the subject matter

of the complaint filed by the appellant for which conduct

the Disciplinary Committee of the Bar Council of U.P. had

imposed the punishment of debarring him from practising as

an advocate for a period of three years. Shri Markendaya

also urged that in his complaint the appellant had also

pointed out that the name of respondent No. 1 is entered in

Register No. 8 maintained at Kotwali Badaun and the said

register contains the names of bad character and that this

fact was also found established by the Disciplinary

Committee of the Bar Council of U.P. and it was observed

that it is unbecoming of an advocate to earn such a bad

reputation in the society. The submission of Shri Markendaya

is that having regard to the gravity of the mis-conduct of

respondent No. in assaulting his opponent in the court Rom

with a knife and his having been committed the offence under

Section 307 I.P.C and his being sentenced to under go

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

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Bar Council of U.P. was in error in imposing the light

punishment of debarring respondent No. 1 from practising as

an advocate for a period of three 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.

Respondent No. 1 is represented by Shri H.K. Puri .

After arguing for sometime Shri Puri sought leave of the

Court for being discharged as an advocate of respondent No.

1 when he was asked to address the Court on the appeal

regarding enhancement of the punishment imposed on

respondent No. 1. We, however, did not grant leave sought by

Shri Puri for being discharged as a counsel for respondent

No. 1.

The order dated March 25, 1984 passed by the

Disciplinary Committee of the Bar Council of U.P in D.C.

Case No. 40 of 1983 arising out of the complaint submitted

by the appellant clearly holds that from material available

on record it is established that respondent No. 1 was

convicted and sentenced for the offence under Section 307

I.P.C. and under Section 25 of the Arms Act and that his

name is recorded in Register No. 8 maintained at Kotwali

Badaun which is a register in which the names of the bad

characters are entered. It is no doubt true that the

conviction of respondent No. 1 for the offence under Section

25 of the Arms Act was set aside by the High Court, on

appeal, but his conviction and sentence for the offence

under Section 307 I.P.C. was maintained by the High Court.

The said conviction under Section 307 I.P.C. was maintained

by the High Court. The said conviction under Section 307

I.P.C related to an incident which took place in the court

room wherein respondent No. 1 had assaulted his opponent,

Shri Radhey Shyam, with a knife. 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., failed to

take not that the mis-conduct of respondent No. 1 which was

the subject matter of the complaint in D.C. Case No. 4 of

1982 arising out of the complaint filed by Shri G.S. Sharma,

IIIrd Additional District and Sessions Judge, Badaun, was

different from the mis-conduct which had been found

established on the basis of the complaint made by the

appellant. The complaint of Shri G.S. Sharma, which gave

rise to D.C. Case No. 70 of 1981 before the Disciplinary

Committee of the Bar Council of U.P., related to fabrication

of the copy of the letter No. Pr. VI/Chh. Pa XXIII-2016-75-

76 dated April 28, 1976 from Shri L.R. Singh, Deputy

Secretary, Ministry of Home, U.P., Lucknow, to the District

Magistrate, Badaun that was received in the court of III rd

Additional & Session Judge vide endorsement No. 1513(II)-75-

76 wherein it was stated that the Governor was pleased to

suspend the conviction of respondent No. 1 under Article 161

of the Constitution with immediate effect and that until

further order he should remain free. In the said complaint

of Shri G.S. Sharma, the Disciplinary Committee of the Bar

Council of U.P., by order dated January 30, 1982, found

respondent No. 1 guilty of gross professional mis-conduct by

taking the benefit himself of a forged and fabricated

document which had been prepared at his behest. The

Disciplinary Committee of the Bar Council of India, in its

order dated June 8, 1984 in D.C Appeal No. 4 of 1982, felt

that there was no material from which it could reasonably be

held that respondent No. 1 had prepared the document which

was subsequently found forged and that respondent No. 1

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could be given the benefit of doubt and therefore, the order

dated January 30, 1982 passed by the Disciplinary Committee

of the Bar Council of U.P. in D.C case no. 70 of 1981 was

set aside. The said order of the Disciplinary Committee of

the Bar Council of India did not have any bearing on the

conduct of respondent No.1 which lead to his conviction for

the offence under Section 307 I.P.C and his being sentenced

to rigorous imprisonment for three years and his name being

entered as a bad character in Register No. 8 of Kotwali

Badaun which was the subject matter of the complaint made by

the appellant and on the basis of which the Disciplinary

Committee of the Bar Council of U.P had passed the order

dated March 25, 1984 in D.C Case No. 40 of 1983 debarring

respondent No. 1 from practising as an advocate for a period

of three years. The Disciplinary Committee of the Bar

Council of India was, therefore, in error in setting aside

the order dated March 25, 1984 passed by the Disciplinary

Committee of the Bar Council of U.P merely on the basis of

its order dated June 8, 1984 in D.C. Case No. 4 of 1982. The

order of the Disciplinary Committee of the Bar Council of

India dated September 8, 1985 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 No. 17 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.

We will now come to D.C. Appeal No. 17-A of 1984 filed

by the appellant which raises the question whether the

punishment imposed by the Disciplinary committee of the Bar

council of U.P. in its dated March 25, 1984 is adequate

having regard to the gravity of the mis-count of respondent

No.1. The Mis-conduct of respondent No. 1 that has been

found established is that he had assaulted his opponent Shri

Radhey Shyam with a knife in the court room and he has been

convicted of the offence under section 307 I.P.C. and has

been sentenced to rigorous imprisonment for a period of

three years. It has also been found established that the

name of respondent No.1 was contained in register No. 8

maintained at Kotwali Badaun which is a register where in

the names of bad characters are entered. The acts of mis-

conduct found established are serious in nature. Under sub-

section (30 of section 35 of the Act the Disciplinary

committee of the state Bar council is empowered to pass on

order imposing punishment on an advocate found guilty of

professional or other mis-conduct. Such punishment can

reprimand clause (b)] suspension from practice for a certain

period [clause (c)] and removal of the name of the advocate

from the state roll of advocate [clause (d)] depending on

the gravity of 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 which would disqualify a person from being

enrolled as an advocate has to be considered serious Mis-

conduct 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 punishment of removal of the name of

respondent No. 1 from the state roll of advocates and the

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Disciplinary committee of the Bar council of U.P., in

passing the punishment of debarring respondent No.1 having

regard to the facts of the case the proper punishment will

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 filled by the appellant

therefore deserves to be allowed.

For the reasons aforementioned the appeal id allowed

the impugned order dated September 8 1985 passed by the

Disciplinary committee of the Bar council of India in D.C.

appeals nos. 17 and 17-A of 1984 passed by the Disciplinary

committee of the Bar council of U.P. in D.C. case No. 40 of

1983 is upheld with the modification that instead of his

being debarred from practising as an advocate for a period

of three year the name of respondent no. 1 be removed from

the state roll of advocates No. order as to costs.