# " v. DISTT. JUDGE, DELHI &.ANR

- **Citation:** [1971] 2 S.C.R. 11
- **Court:** Supreme Court of India
- **Decided:** 1970-09-04
- **Case number:** Civil Appeals Nos. 2637 and 2638 of 1969
- **Bench:** M .. Hidayatullah, G. K. M!Ti\"ER, A. N. RilY
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/v-distt-judge-delhi-anr-5304
- **Pages:** 17

## Headnote

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Advocates Art -1961, ss.'44 and L0(3)-Rcvlew-Bal' Co1111cil ct11111ot
rttvlr'~V '1ccz.s1un
of Disciplinary
Conimittee-Disciplinar.v
Coounittee's-
.PVWl!r of re-v1e11·-Grpunds for rt\•lew need not be sbnUar vr c.·nalogous
lo t/u;ie found in s. 'l 14 or 0.47 R. I of Code. of CMI Prucedurel'tinciples of antre .. fois cop.vict1 or antre 'fois acquit also not applicahle
·-:--Review petition 11111st ·b'e1 dealt'. with objectively-Revie\I/ by Supreme
Court, considerations fqr-Appeal to Sttprenie Court under s. 38 Advoc!ltes
Act, Scope of-Pr.ofe'ssional. n1isco11ducr~Proof" of.
f.
The appellant \Vas an, advocate of this Court. A complaint y.•as made
by !he District Judge Delhi against him on 29th February, 1964 to the
Bar Council of the State of Delhi alleging that he had mutilated a UOcument, by tearing two pieces:from it while examining a judicial record in
the·'couf.t.i.room in the presehce of the junior clerk.
The Bar Council of
the State of Delhi referred the matte1 to its Disc:iplinary Committee.
The. cxpl~n~tiop of the appellant before the Disciplinary Committ~e was
th1t the charge had Deen falsely made against him bec'lusc of the hostility
of the Judges and the staff of the DistriCr Cpurt, bclhi.
He denied that.
the docun1ent w:\s important or that he
mutilated it.
He hsked for
~'iummoning the torn rloc~1n;ient and the pieces but only the document was
received. ·According r.:> the Dist'rict Judge the pieces were misplaced and
could n,at be found.
The Disciplinary Committee held the app:lla11t guilty
of having J11Ulila ted ,.the document on the basis 9f it he oral evidence 9f
the junior derk .. The appellant. thereupon, appeal~d to the Bar Council of
India but the Disciplinary Committee of the Bar Council of India dis·
.mi!~ed the appeal.
His appeal to this Co1J.rl under s. 38 of the Advocates
Act was also dismissea at the preliminary' hearing.
The appellant filed
a reyiew petition befprc the· 'G>isciplina'ry Committee of. the Bar Council
of India' hut it was rcjecteu.
The •RPellant· then flle9'. a writ petition in
the High Court of Punjab (Delhi Bench) challenging·'· 38 of ihe Advocutc.s Act and r. 7 and Or. S of tlie rules of 'this Court as ultra vires
Art. 138('.?J of the Constitutibn.
The writ petition was admitted and u
rule nlsi wns issued.
Meanwhile -this .Court in dealing Witl-i a r1Jview
petition filed tiy the •!l'pellant had .issued a notice to· the District Judge
tu find out the tornipieces.
The' District Judge reported that the muti· .1
lntcd document was a copy of the lawyer's notice and that onlv a small
piec:c of half .nch was missing from !h~ .bottom of the second page, The
picct-s were not traceable.
l-Je allo reported. that the junior clerk was
not surC' that any. thing was written on the torn pieces but accordin~ to
his :recollection the words ··tru~ copy' followed by the signature 'Vir Bhan'
·1.vcrc' written.
This Cburt dismiss:::dt the review petition on· September,
:!6~ I 966.
The writ' petition in the High Court was also dismissed by 3
single Judge on October 12 1966.
In the proceedings it app~ared t~at
the docurn,ent in question ha('!· not been relied upon by the p:.irtv wti.1ch
had fileti 11.
A letters patent appeal was filed against Singl.e Jud~e·s .iudgnlcnt and order.
Before the Division Bench the validity of s. 38 of the
Advocates Act alcine was cballenged~-
The Divisioh Bench dismissed the
:.ppcal hut ;granted a
cer'tificate'~
The appeal filed in this Court as a
12
SUPREME COURT REPORTS
[1971]2 S.C.R.
result was dismissed by the Constitution Bench on January 8, 1968. The
lprcllant then tried a fresh reviev.,, petition on the basis of fresh evidence
tnd report of the Dislrict Judge.
On the court observing that on the
basis of ne\v m.nerial review should be asked for fron1 the Bar Council
of Jndia, the appellant withdrew the rcvic\\' petition which ,1,.·as not dismissed on merits.
'fhe appellant then \\.'t:nt before the Bar Council asking for reconsideration of the case under ss. 44 an

## Text

_Characters 0–39,862 of 48,904. This is a partial read: ask again with offset=39862 for what follows._

A
0. N. MAHINOR.00
"
..
v.
;.
DISTT. JUDGE, DELHI &.ANR.
September 4, 1970
I\
[M .. HIDAYATULLAH, C.J., G. K. M!Ti\"ER AND A. N. RilY, J{J
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Advocates Art -1961, ss.'44 and L0(3)-Rcvlew-Bal' Co1111cil ct11111ot
rttvlr'~V '1ccz.s1un
of Disciplinary
Conimittee-Disciplinar.v
Coounittee's-
.PVWl!r of re-v1e11·-Grpunds for rt\•lew need not be sbnUar vr c.·nalogous
lo t/u;ie found in s. 'l 14 or 0.47 R. I of Code. of CMI Prucedurel'tinciples of antre .. fois cop.vict1 or antre 'fois acquit also not applicahle
·-:--Review petition 11111st ·b'e1 dealt'. with objectively-Revie\I/ by Supreme
Court, considerations fqr-Appeal to Sttprenie Court under s. 38 Advoc!ltes
Act, Scope of-Pr.ofe'ssional. n1isco11ducr~Proof" of.
f.
The appellant \Vas an, advocate of this Court. A complaint y.•as made
by !he District Judge Delhi against him on 29th February, 1964 to the
Bar Council of the State of Delhi alleging that he had mutilated a UOcument, by tearing two pieces:from it while examining a judicial record in
the·'couf.t.i.room in the presehce of the junior clerk.
The Bar Council of
the State of Delhi referred the matte1 to its Disc:iplinary Committee.
The. cxpl~n~tiop of the appellant before the Disciplinary Committ~e was
th1t the charge had Deen falsely made against him bec'lusc of the hostility
of the Judges and the staff of the DistriCr Cpurt, bclhi.
He denied that.
the docun1ent w:\s important or that he
mutilated it.
He hsked for
~'iummoning the torn rloc~1n;ient and the pieces but only the document was
received. ·According r.:> the Dist'rict Judge the pieces were misplaced and
could n,at be found.
The Disciplinary Committee held the app:lla11t guilty
of having J11Ulila ted ,.the document on the basis 9f it he oral evidence 9f
the junior derk .. The appellant. thereupon, appeal~d to the Bar Council of
India but the Disciplinary Committee of the Bar Council of India dis·
.mi!~ed the appeal.
His appeal to this Co1J.rl under s. 38 of the Advocates
Act was also dismissea at the preliminary' hearing.
The appellant filed
a reyiew petition befprc the· 'G>isciplina'ry Committee of. the Bar Council
of India' hut it was rcjecteu.
The •RPellant· then flle9'. a writ petition in
the High Court of Punjab (Delhi Bench) challenging·'· 38 of ihe Advocutc.s Act and r. 7 and Or. S of tlie rules of 'this Court as ultra vires
Art. 138('.?J of the Constitutibn.
The writ petition was admitted and u
rule nlsi wns issued.
Meanwhile -this .Court in dealing Witl-i a r1Jview
petition filed tiy the •!l'pellant had .issued a notice to· the District Judge
tu find out the tornipieces.
The' District Judge reported that the muti· .1
lntcd document was a copy of the lawyer's notice and that onlv a small
piec:c of half .nch was missing from !h~ .bottom of the second page, The
picct-s were not traceable.
l-Je allo reported. that the junior clerk was
not surC' that any. thing was written on the torn pieces but accordin~ to
his :recollection the words ··tru~ copy' followed by the signature 'Vir Bhan'
·1.vcrc' written.
This Cburt dismiss:::dt the review petition on· September,
:!6~ I 966.
The writ' petition in the High Court was also dismissed by 3
single Judge on October 12 1966.
In the proceedings it app~ared t~at
the docurn,ent in question ha('!· not been relied upon by the p:.irtv wti.1ch
had fileti 11.
A letters patent appeal was filed against Singl.e Jud~e·s .iudgnlcnt and order.
Before the Division Bench the validity of s. 38 of the
Advocates Act alcine was cballenged~-
The Divisioh Bench dismissed the
:.ppcal hut ;granted a
cer'tificate'~
The appeal filed in this Court as a
12
SUPREME COURT REPORTS
[1971]2 S.C.R.
result was dismissed by the Constitution Bench on January 8, 1968. The
lprcllant then tried a fresh reviev.,, petition on the basis of fresh evidence
tnd report of the Dislrict Judge.
On the court observing that on the
basis of ne\v m.nerial review should be asked for fron1 the Bar Council
of Jndia, the appellant withdrew the rcvic\\' petition which ,1,.·as not dismissed on merits.
'fhe appellant then \\.'t:nt before the Bar Council asking for reconsideration of the case under ss. 44 and 10(3) of the Advocates Act. 1961.
The Bar Council of India held that it had no jurisdiction to reopen the matter but reco,mmended that the Disciplinary Comnuttee may be approached.
The appellant then applied for review of the
order by the Disciplinary Committee of the Bar Council of India.
The
Disciplinary Committee declined to open the case.
They held that
the
order had merged in the decision of the Supreme Court and review
granted by them would be incompetent because review could be considered only on grounds similar or analogous to those given in s. 114 and
Or. 47 R. 1 of the Code of Civil Procedure.
From the respective orders
of the Bar Council of India and the Disciplinary Committee. the present
ai!)peals. were brought.
The questions that fell for consideration
were :
(i) Whether tho Bar Council had no jurisdiction to direct the Disciplinary
Committee to rehear the matter; (ii) Whether the Disciplinary Committee
was right in not considering the matter afresh; and (iii) Whether the
Disciplinary Committee was right in refusing review, and if not, whether
this Court should review the matter for itsel'f.
At the hearing the .Bar
Council of India and the Supreme Court Bar Association were represented
and supported the case of the appellant.
HELD : (i) The Bar Council acted correctly when they refused to
review the matter themselves. To do so would be an exercise of appellate
power I which the Bar Council did not possess.
The Bar Council was
further right in saying that the question raised before them was sufficiently important for reconsideration and recommending it for reconsideration by the Disciplinary Committee. [20 G-HJ
(ii) In all cases tried by the Disciplinary Committee of the Bar Council
of a State (including Union territory of Delhi) an appeal lies to the Bar
Council of India.
The appeal is however heard by the Disciplinary Committee of the Bar Council of Jnd.ia and they dispose. of it as they deem
fit.
The Act does not say that the Disciplinary Committee is a reporting
body and the executive orders must be made by the Bar Council of· India.
It is against the order of the Disci?linary Committee that an appeal lies
under s. 38 to this Court. [21 A-CJ
(iii) But in the initiation of proceedings and again in the matter of
appeal the Bar Council is mentioned and not the Disciplinary Committee.
Indeed under ss. 35 (1) and 36(1) the Bar Council of the State or of
\India as 'the case may be, must be satisfied that a prima facie case exist
before they will refer the matter to their Disciplinary Committee.
The
provisions of ss. 6 & 7 of the Act also show that the general superintendence ·of ethics and etiquette of the profession and questions of misconduct
of the members are not wholly outside the ken of the Bar C0uncils of
the State or .of India and are always within their respective jurisdictions.
Under s. 38 this Court has jurisdiction to pass in appeals any order it
deems fit.
Therefore the appropriate Bar Council or this Court do not
act Wrongly -if they entertain subsequent petitions from a person whose
case has been dealt with by a disciplinary committee. [21 C-G]
(iv) The power of review is expressly granted to the Disciplil!'ary Committee of the Bar Council which may on its own motion or otherwise
review any order passed by it.
The Word 'otherwise' is wide enough to
cover the case referred by the Bar Council for review. [21 HJ
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0. N. MAHINDROO V. DISTT. JUDGE
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(v) The powers of review are not circumscribed by the Act.
The
analogy of the Civil Procedure Code must not be carried too far.
Such
powers may be exercised in a suitable case. for oi against an advocate
even after the matter has gone through the disciplinary committee at
some stage or even through this Court.
These matters are also not
governed 'by the analogy of aut.re fois convict or auterfois acquit in t.he
Code of Criminal Procedure.
Di$ciplinary proceedings against a lawyer
not only involve a particular lawyer but the entire profession. The reputation of the legal profession .is the sum total of the reputation of the
practitioners. The honour of the lawyer and the purity of the profession·
are the primary considerations and they are intermixed . .[22 B-Cl
(vi) This Court on earlier occasions, taking the facts from the orde{
of the disciplinary committees declined to interfere as no question of law
was involved. It decided the appeal summarily without issuing notice .or
sending for the record. There is force in the contention that an advocate
is entitled to a full appeal on facts and law under s. 38 of the Advocates
Act.
Since the disciplinary jurisdiction of the High Court has been taken
away a right of appeal to this Court has been substituted.
This Court
must in all cases go into, the matter to satisfy itself that justice has been
done by tho disciplinary committee or committees. [26 G]
(vii) All processes of the court are intended to
secure justice and
one such process is the power of review. No doubt frivoious reviews are
to be discouraged and technical rules have been devised to.prevent persons
from reopening decided cases.
But there should not be too much technicality where professional honour is involved and if. there is a manifest
wrong done it is never too late to undo the wrong. · This Court possesses
under the Constitution a special power uf review and further may pass
any order to do full and effective justice. (27 Bl
(viii) In the present case the Disciplinary Committee of the Bar
Council of India did not re-examine the matter objectively but with . the
intention of re-affirming their decisions.
No attempt was made to find
whether the circumstances were such that the appellant could be said
to have pro•ed satisfactorily the contrary of what was held or had created
sufficient doubt in the matter. (25 G]
(ix) The document said to be mutilated by the appellant was not
needed for the case; it was only a carbon copy and not original.
No·
part of the typed portion was damaged except very slightly.
The tear.
in two places was equal to a third of a small postage stamp. There was
most p\"obably no writing as ·there was hardly any space available.
No
steps were taken to match the alleged pieces with the tears, and the
pi~ces had not been preserved.
There was only the word of the junior
clerk against that of the appellant.
There was a background of hostility
which the appeliant had created by his aggressive action in other cases.
It was difficult to believe that the mutilation, without any rhyme or reason,
was done with a sinister motive.
This view was supported by the representatives of the Bar Council and the Bar Association of Supreme Court.
(27 D-FJ
(x) It was not necessary to consider the law applicab!e to reviews in
in such matters.
The
matter
\1,:as one of the ethics of profession
which the law has entrusted to the Bar Council of India.
Their opinion
of the cast' must receive due weight.
The Bar Council agreed that the
decision aga"inst the appellant was unsustainable.
There was no reason
to differ from them.
Accordingly in the present case review must be
granted and the order disl>arring the appellant from practice which had
been passeJ against him must be set aside. r27 G·H]
14
SUPREME COURT REPORTS
[1971] 2 s.c.R.
CIVIL APPELLATE JURISDICTION:
Civil Appeals Nos. 2637
and 2638 of 1969.
Appeals by special leave from the order dated July 12, 1969
of the Bar Council of India, New Delhi in PetitiOill dated January
17, 1969 at item No. 42 of 1969 and from the order dated O~tober
4, 1969 o'. the Disciplinary Committee of the Bar Council of India
in Review Petition No. 2 of 1969 respectively.
C. K. Daphtary, A. N. Mulla, Bishan Narain, W. S. Ba1/i11gav
and 0. N. Mohindroo, for the appellant (in both the ·appeals). ·
M. Natesan, Uma Mehta, D. N. Misra and B. P. Singli, for
respondent No. 2 (in C.A. No. ?.637 of 1969).
A, S. R. Chari and B. Datta, for the intervener (in both the
appeals).
The Judgment of the Court was delivered by
Hida\'atullah, C.J.-The appellant in these two appeals is an
advocate· of this Court, who on complaint by the District Judge,
Delhi, 29 February, 1964, to the Bar Council of the State, of
Delhi, was held guilty of professional misconduct and suspended
from practice for a year by the disciplinary committee of the said
Bar Council.
He appealed to the disciplinary committee of
the Bar Council of India under s .. 37 of the Advocates Act.
The
appeal was dismissed.
His appeal to this Court under s. 38 of
the Act was dismissed summarily at the preliminary hearing.
The
charge against him was that while inspecting a judicial record in
the company of Mr. Kuldip Singh Advocate, he tore out 2 pieces
of paper from an Exhibit (C-1).
The pieces were thrown by him
on the ground.
The clerk in-charge reported the incident to the
District Judge and the complaint followed.
The suit, record of which was being inspected, aros.e i.n th~
following circumstances•.
On February 6, 1963 Mr. Anant Ram
Whig, an advocate, sent a notice on behalf of one Sarin to a
certain Ramlal Hans and his wife claiming a sum of Rs. 4,3701as reward for the success of their daughter at an examination including tuition fees.
Sarin was preparing the girl for the B.A.
examination.
The claim of Sarin was repudiated by Ramlal Hans
in a reply dated Februarv 11. 1963.
The matter was referred
to the arbitration of Mr. Mansaram. Municipal Councillor. Delhi
by an agreement dated February 24, 1963. The arbitrator gave
an award for Rs. 1,0001- in favour of Sarin.
The award wa:,
filed in :he Court of Mr. Brijmohanlal Aggarwal. Sub-Judge.
Delhi for being made a rule of the court.
Ramlal Hans engaged
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o. N. MAH!'IDROO v. DlSTT. JUDGE (Hidayatullah, C.J.)
15
the appellant as advocate.
The appellant In his turn engaged
two other advocates to conduct the actual cases and also filed
his vaka/atnama.
A copy of the notice sent by Mr. Whig was
filed in the case (Ex. C-1) but was not yet proved.
On February 24, 1963 the appellant went for the inspection.
of the record of the case in the company of his junior lawyer.
The file was given by Amrik Singh, the junior clerk of the
Bench.
Amrik Singh then went out of the room but soon returned to his seat.
Later he charged the appellant of having torn 2
pieces from the document (which was Ex. C-l) and picked_ up
the alleged pieces from the floor.
Mr. Aggarwal then arnved
on the scene.
The statement of the appellant was recorded. The
Sub-Judge also obtained reports from his junior and Assistant
clerk; and made a report.
With the report he sent the Exhibit
said to be mutilated and the two pieces said to be the torn
pieces of Ex. C-1 in a sealed envelope.
A complaint was also
made to the District Judge by Sarin.
The District Judge then
made a report and wrote that the document was important iJl,
the case and action was, therefore, called for.
The disciplinary committee of the Bar Council of the Uniotl
Territory of Delhi took up the matter under ~. 35 of the Advocates Act.
The explanation of the advocate was called for.
He
explained that the charge was false and it was due to the ill-will
of Mr. Aggarwal and his staff because earlier he had made some
serious allegations against Mr. Katra, Sub-Judge III Class in a
transfer petition and had also started contempt proceedings.
According to the appellant this led to hostility between the judges
and their staff and him.
He denied that the document was imimportant or that he had mutilated it.
He asked inter alia for
summoning the torn document and the pieces and they were summonyd.
The original document was received but not the pieces.
The District Judge informed the Committee that the pieces were
misplaced and were not found.
The appellant maintained that
they were put in the same envelope with the exhibit and he alleged
that they were suppressed to deny him a legitimate defence that
they were not a part of the same document.
Oral evidence was recorded.
On the basis of the oral evidence of Amrik Singh. the petitioner was held guilty of having
wantonly mut;Jated the document.
The petitioner wanted to
take a size to size photostat o.f the exhibit but his request was
turned down.
As stated already his appeal to the Bar Council of India was
dismissed by the disciplinary Committee of the Bar Council of
India and later his appeal to this Court was dismissed summarily
16
SUPREME COURT REPORTS
[l971J2 S.C.R
on April 18, 1966 at the preliminary hearing. Mr. A. K. Sen
appeared for the appellant.
The appellant then seems to have lost his head.
He made
successive applfoations of various kinds.
He filed a review petition on April 23, 1966 before the disciplinary Committee of the
Bar Cou.ncil of India but it was rejected on April 29, 1966.
The
appellant then filed a writ petition in the High Court of Punjab
(Delhi Bench) on May 23, 1966 challenging s. 38 of the Advocates Act and Rule 7 of Order V of the Rules of this Court as
ultra vires Art. 138(2) of the Constitution.
The Writ Petition
was admitted and a rule nisi was issued.
The appellant before
this had filed a review petition in this Court and on September
12, 1966 this Court issμed a notice to the District Judge to find
out the torn pieces.
The District Judge reported on September
22,, 1966 that the mutilated document was a copy of a lawyer's
nqt1ce and that only a small piece of t" was missing from the
bottom of the second sheet. The pieces were not traceable.
He
. als~ reported that the junior clerk was not sure that anything was
wntten on the torn pieces but according to his recollection the
words 'True copy' followed by the signature 'Vir Bhan' were written, that this was not stated by him in his earlier statements
and th.at the Ass.istant Clerk also said that according to his re'.
collection som7thmg was written in ink on those pieces but could
not. ~ay what 1t was.
The Supreme Court dismissed the review
peutmn on September 26, 1966.
The appellant appeared in
person at the hearing.
The writ petition in the High Court was also dismissed by a
single Judge on October 12, 1 ?66.
The order sh?ws that the
original of Ex. C-1 was not rehed upon by Mr. V1r Bhan and
that he had not attempted to prove the copy, as there was .no
context about the notice.
It was
contended before the High
Court that there was no motive to t~ar two tiny pieces from a
document which was not in issue.
The High Court seemed to
agree with this but speculating .as t? possible motiv~s held that. in
view o( the evidence of Amrik Singh, the question of motive
was immaterial.
The High Court did not go further than this
into facts.
The learned single Judge considered the objection to the constitutionality of the rules of this Court and overruled it.
He held
that questions of fact could not be gone into in view of the successive appeals and review petitions dismissed by t~e appro~ate
authorities.
A Letters Patent Appeal was filed agamst the smgle
Judge's judgment and order.
That appeal was heard by a Division Bench of the High Court of Delhi and dismissed on December 22, 1966.
Before the Division Bench the validity of s. 38
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of the Advocates Act alone was challenged. An objection on
merits was rejected because the order of the discipli,nary co~
mittee of the Bar Council of the Union Territory was said to have
merged in the order of the disciplmary committee of the Bar
Council o.f India and later in that of this Court. The High Court
granted a certificate.
This Court was represented at the hearings
as it was made a party to the writ petition.
The appeal filed in this Court as a result (C.A. No. 240 of
1967) was dismissed by the Constitution Bench on J~nuary 8,
1968.
Only the validity oi s. 38 of the Advocates Act and rules.
of this Court was considered.
The hearing was on 14 and 15
December 1967.
The appellant was 'in person.
The Bar Council of Delhi and their disciplinary committee were represented
by Mr. Avadh Behari Advocate, Mr. P. Rama Reddy and Mr.
A. V. Rangam represented the disciplinary committee of the Bar
Council of India, the Supreme Court (a party) was represented
by Mr. Purshottam Tricumdas and Mr. I. N. Shroff and the Attomely General was represented by Mr. P. Tricumdas and Mr.
S. P. Nayyar.
The hearing time was taken up by the appellant
and Mr. Purshottam Tricumdas, Mr. P. Rama Reddy argued for
10 minutes and Mr. A vad Behari was not called upon.
The appellant the.n tried another review petition (No. 21 of
1968) on the basis of the fresh evidence and report of the District
Judge Delhi.
This Court (on December 2, 1968) summoned
the record and allowed the petitioner to take photostats of the
Ex.C-1.
The appellant also filed a writ petition under Art. 32
o~ the Constitution (W.P. No. 69 of 1968).
He first applied
(C.M.P. 1171/68) for withdrawal of the writ petition and then
withdrew that application itself. . The two matters were placed'
before the Court on April 1 I, 1968 and at one time it appeared
that Shri A. K. Sen had argued both of them but later Shri A. K.
Sen said he had only appeared in the writ p'lltition and not in the
review petition and it was still undlsposed of.
As a result on
Au2ust 12. 1968. the review petition was ordered to be placed
again for hearing.
On the Court observing that on the basis of
new material, review should be asked for from the Bar Councif
p.f India. the review petition was withdrawn on January 6, I 969.
The review application was not dismissed on merits.
The appellant then went before the Bar Council asking for
reconsideration of his case under ss. 44 and 10 ( 3) of the Advocates Act.
The Bar Council passed an order through i!s Chairman I Mr. H. D. Shrivastava).
The Bar Council of India held
that it had no jurisdiction of any kind to reopen this matter although the embarrassment involved in reconsidering the matter
..yas removed bv the observations of the Supreme Court.
According to the Bar Council the disciplinary committee was not acting
18
SUPREME COURT REPORTS
(1971] 2 S.C.R.
as a subordina.te delegate of the Council and the general power to
safeguard the mterests of the Bar or any individual memb~r could
only re.fer to such interests as had not been negatived by judicial
process under the Advocates Act.
The petition was, therefore,
d1sm1ssed.
The Bar Council, however, went on to observe :
" ...... But we cannot part with this matte[ without expressing our sense of uneasiness which arises from
the production before us of fresh material particularly
a photostat of ti)e document said to have been torn by
the petitioner.
A look at the document opens out a
reasonable possibility, that a reconsideration by the disciplinary committee of this Council may lead to a different result.
The petitioner may i·f so advised fonnally
,ask for a review by the Disciplinary Committee."
.
The appellant then again applied for review of the order by
ttt.e disciplinary committee of the Bar Council of India. In a
fairly long order the disciplinary committee declined to reopen
the case.
The disciplinary committee found fault with the single
Judge of. the High Court of Punjab for not rejecting the writ petition on the short ground that the High Court could not issue a
writ to the Supreme Court. The disciplinary committee also found
it necessary to comment upon the order of tilis Court inquiring
from the District Judge, Delhi how the pieces kept in safe custody
were lost.
The disciplinary committee also commented upon the
action of the District Judge in re-examining witnesses who had
been examined before.
The Di;ciplinary committee pointed out that in the second
review petition decided by the Committee on February 26, 1967,
it refused to take into consideration the report of the District
Judge us it wus not evidence in the case 3nd because the Supreme
Court also did not appear to have acted upon it when dismissing
the review petition be.fore it
The Supreme Court's order was
not a speakin~ order but had merely dismissed the review petition
summarily.
The disciplinary committee next consideard how the matter
came before them.
Thev refused to take into account a 'casual
observation' of the Judge~ in the course of arguments befo;·e them
in the review petition in this Court.
They speculated that parhaps the appellant was advised to withdraw the review petition
which otherwise would have had to be dismissed.
The Committee very reluctantly looked into the slatements of witnesses
recorded by the District Judge when he reported about the loss
of eht two pieces of paper.
The matter was heard and the disciplinary committee took time to consider their order.
The disci01 SUOI)B:J!fddu ..... ~.TMJ \lur.r~p!SUO:J UT lBljl Pl~IJ ~~l)i!UUIO:J ,\rnmtd
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c. N. MAHINDROO v. DISTI. JUDGE (Hidayalll//ah, C.J.)
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A
themselves, they should not be over-technical and that they would
have granted review if there was any material on which it could ·
be granted.
They, however, observed :
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.... , ... It is however axiomatic that no Court or
Tribunal can rewrite or alter its Judgment once a J udgment has been signed and delivered.
We could entertain the review petition only on some ground similar or
analogous to those as mentioned in Section 11<1 and
Order 4 7 Rule I of the Code ot Civil Procedure.
But
in this case there is no such i:round available to the
petitioner."
They held that as the order of the disciplinary committee iiad merged in the decision of the Supreme Court, a review granted by
them would be incompetent.
HavingJ held this two members
went Q.n to consider the merits, a procedure with whic:h the
third member dissented.
His observations in the circumstances
were quite correct.
This is what he said :
"If what the petitioner says about the observations
of the Supreme Court that his remedy should be by a
Petition for review, 1s correct, the forum lies elsewhere and we cannot just entertain it.
In this view of
the matter the observations made by the Bar Council
of India in their resolution dated 12th July, 1969, which
are entitled to our respect, may we!! be le.ft alone mad
(sic) need be commented upon."
•
The majority of the disciplinary committee however refused to
be guided by the observations of the Bar Council of India. They
observed that looking at the photostat copy did not advance the
.. ,,
F
m~tter any further and they had previously seen the original itself and on the evidence they were satisfied that there was some
writing on th pieces to show that it was a true copy signed by
the attestor.
This was proved by the evidence of Mr. Vir Bhan
accepted by the disciplinary committees of the two Bar Councils.
They discarded the fresh evidence of the two clerks as not of
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any use to the appellant.
They went to the length of saying : ·
H
"Even if these witnesses had entirely contradicted
their earlier statements that would not have been a
ground for review .... ".
Having said this they went on to say :
" ..... However in the present case we have also
examined the depositions recorded by Shri J agjit Singh
and we do not find any substantial difference between
20
SUPREME COURT REPORTS
[1971] 2 S.C.R.
what they had stated earlier and what they stated before
!.
him."
The fact that writing on the pieces was not mentioned earlier by
the clerks was not noticed.
The majority then severely commented upon the conduct of the appellant in charging the subordinate judiciary with hostility ·and he!d this to be 'frivolous and
&
unw01 thy of notice.'
They observed as follows :
'"Even in our earlier Judgment we pointed out that
a defence of this nature calculated to deter and intimidate reponsible officers from discharging their public
duty was highly reprehensible."
They accordingly dismissed the review application expressing the
hope that that would be a close to thi·s chapter. In two paragraphs thereafter the majority commented strqngly on other conduct of the appellant in court cases and outside it which 11ccurding to them was deplorable.
It is obvious· that the disciplinary
committee was annoyed at the repeated attempts of the appellant
to have his case reconsidered by the superior authorities and the
hearing he had got.
·
From the respective orders of the Bar Council of India and
the disciplinary Committee, these two appeals are brought.
We
granted special leave in the matter arisi,ng out of the Bar Council's order limited to the following two questions :
" ( I ) Whether the Bar Council has no jurisdiction
to direct the Disciplinary Committee to rehear the matter; and
( 2) Whether the Disciplinary Committee was right
in not considering the matter afresh."
In the other appeal the question is.:
whether the disciplinary
committee was r:ght in refusing review and whether we should,
therefore, review the matter ourselves, if we are satisfied that the
case deserves it.
c
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In so far as the jurisdiction of the Bar Council of India is
concerned we think the Bar Council acted correctly when they
G ·
refused to review the matter themselves.
For the Bar Council
to do so would be an exercise of appellate power.
That power
the Bar Council of India does not possess.
But the Bar Council
cf India was right in saying that the question raised before themselves was sufficientlv important for reconsideration and recom·
'!lending it for reconsideration to their Disciplinary Committee.
H
·
U!e provisions of the Advocates Act are no doubt precise
in t~ matters of appeals and review.
In all cases tried by the
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21
Disciplinary Committee of the Bar Council of a State (which
term 1nclu<les the Union Territory of De1hi) an appeal lies to the
Bar Council of Jnd1a.
The appeal is, however, heard by the
Discipiinary Committee of the Bar Council of India and they
dispose of il as they deem fit.
The Act does not say that the
Discipl.inary Committee is a reporting body :ind the executable
order must be made by the Bar Council of lndia.
This is made
clear by ~he section that follows.
lt speaks of an appeal to this
Court against the order of the Disciplinary Committee. It an
order of the Bar Council were intended to be interposed (whether endorsing or refusing to endorse the order of the Disciplinary
Committee) one would expect the appeal to this Court to lie
against the order of the Bar Council.
But in the initiation of
the proceedings and again in the matter of appeal, the Bar Council is mentioned and not the disciplinary Committee.
Indeed under ss. 35 (I) and 36 (1) the Bar Council of the State or of India,
as the case may
b~, must be satisfied that a prima facie case
exists before they will refer the matter to their Disciplinary Committee.
This is in keeping with the jurisdiction of the Bar Councils of the States laid down bys. 6(1)(c) under which Bar Council is to entertain and determine cases of misconduct against advocates on its rolls and under cl. ( d) with the duty to safeguard
the rights and privileges and interests of advocates on its rolls,
In regard to the Bar Council of India the same position obtains
under s. 7(1 )( d) (which is ipsissima verba with the corresponding provisions of s. 6) read with s. 7 (1) which lays down the
jurisdiction of the Bar Council of India to deal with and dispose
of any matter arising under the Act.
Therefore the general
superintendence of ethics and etiquette of the profession and questions of misconduct of the members are not wholly outside the
ken of the Bar Councils of the State or of India and are always
within their respective jurisdictions.
Next, the appeal to this Court is not a restricted appeal.
It
is not an appeal on law alone but also on fact.
Indeed s. 38
gives the Supreme Court jurisdiction to pass in such appeals any
orders it deems fit.
Therefore the appropriate Bar Council or
this Court do not act wrongly if they entertain subsequent petitions from a person whose case has been dealt with by a disciplinary committee.
The power of review is expressly granted to the Disciplinary
Committee of the Bar Council which may on its. own motion or
otherwise review any order passed by it.
The word othenvise is
wide enough to cover a case referred by the Bar Council for review.
There is r. proviso wilich makes the 'Bar Council of India
the final judge because no order of a disciplinary committee of a
22
SUPREME COURT REPORTS
(1971] 2 S.C.R.
State Bar Council on review has effect unless it is approved· by·
the Bar Coimci/ of India.
The powers of review are not circumscribed bl' the Act.
The
analogy of the Civil Procedure Code must nQt be carried too fill'·
Such powers may be exercised in a suitable case for or against
an advocate even after the matter has gone through the" hands of
the Disciplinary Committee at some stage or even through this
Court.
These matters are also not governed by the analogy of
autre fois convict or autrefois acquit in the Code of Criminal Procedure.
Disciplinary proceedings against a lawyer involve not
only the particular lawyer but thr. entire profession.
The reputation of the legal profession is the sum total of the reputation
oi the practitioners.
The honour of the lawyer and the purity
::>f thee profession are the primary considerations and they are
intennixed.
Duri'lg the hearing we gave an illustration which we i;nay
also give here.
Suppose an advccate is charged with embezzling
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the money of his client.
The advocate plear;ls that he paid the
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money in cash to the client and obtained his receipt but the
receipt is misplaced and he cannot find it.
He is disbelieved by
the Disciplinary Committees and even by this Court.
Subs<:-
quently he finds the receipt and wishes to clear his good name.
The matter can be gone into again on the fresh material. It is
not only hfs right but also the duty of the those including this,,.
Court to reconsider tlie rr,atter.
The Bar Council in any event
E
can restart the matter to clear him whether before any of the
authorities which dealt with the matter before.
The facts in the
illustration may be reversed to see the converse position where an
advocate gets off on a false plea cf not having received the money
at all; if he can be successfully confro,nted with his own receipt
which the client had misplaced and could not lay hands upon in
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the first instance.
From this it follows that questions of professional conduct are
as open as charges of cowardice against Generals or reconsideration of the conviction of person convicted of crimes.
Otherwise
how could the Hebron brothers get their conviction set aside after
Charles Peace confessed to the crime for which they were charged
and held guilty ?
.
The fact of the matter in this case is that too much emphasis
was laid on the oral evidence of a clerk who alone said that he
had seen the appellant tear two pieces from Ex. C.I.
The Advocate's denial was not accepted althoug.h there was word against
word.
There was on evidence that the vieces found on the floor
matched the tear.
No witness spoke of having taken the ~lemen
tary care of matching the pieces with Ex. C-1.
Indeed the pieces
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23
having been lost the only corroboration re;garding the pieces has
disappeared.
The only corroboration now is that the edges of
Ex. C-1 show such a tear.
The question is whether this by itself is sufficient.
There is
no evidence against the appellant except that of Amrik Singh.
It
is true that tli.ere is no personal allegatiOl!I against him of harbouring any grudge or hostility beyond saying that the stat! of the
Courts were against the appellant.
As against this, one consideration is what was the gain to the appellant by tearing the tiny
pieces ? 'We Shall presently show how tiny they were.
The
charge is a serious one; and we have to see the matter in the
whole setting of the evidence.
The document said to be torn is
a copy of a notice which Sarin's Counsel hae sent to the opposite.
side.
The counsel for Sarin said that he had not proved the document.
Further the original notice could be summoned.
Exhibit C-I was in two sheets 30.5 cm. x 20.5 cm. and 34.6 cm. x
21.5 cm. The second sheet was extraordinarily long and its edges
appear very much frayed.
It was suggested at the hearing it
must have protruded from the rest of the file and thus i;ot
damaged in the handling of the file.
This was not given due
weight.
We have examined the document carefully.
It is a carbon
copy of a notice.
The document ends thus :
E
Nott : Copy of this notice is being sent under postal certifi ·
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cate to your wife.
Yours faithfully,
The tear occurs 1.5 cm. to the left of 'ficate' and ends below the
letter 'A' in 'postal'.
The letters of 'faithfully' are missing except
for the head of 'f' and so also letters 'der' in 'under' and parts
of 'p' and 'o' in 'postal' are missing.
The complainant claimed
that the document had an attestation 'true copy' followed by a
signature and .that it had been torn out.
The two clerks who
had seen the pieces do not definitely say that the pieces had any
writing and as the pieces have disappeared we cannot g~t corroboration.
They had originally not said this but now at a later
stage they have deposed about the writing on the pieces.
We
have therefore. done the best to discover the truth.
This is the
result of our observations :
The document is a rectangular foolscap sheet, rather old
paper which is frayed along the edges.
As the fraying edges
were falling off we have secureJ them with transparent scotch
tape.
One piece actually fell off when the papers was being examined by us but the piece has been secured in situ with scotch
tape.
Another piece found in the file could not be matched
24
SUPREME COURT REPORTS
[1971 J 2 S.C.ll
.and has been secured in the margin with scotch tape so that it
may not be lost It belongs to the same paper.
Now for a description of the paper.
Fortunately the machine cut edges are available on all four
.sides enabling us to measure the paper and to find out the exact
measurements of missing parts.
This will enable us· to find out
if an attestation and a signature could have been written at all
on these papers.
It is obvious that the tearing if deliberate, as
is suggested, must have been to tear out not the blank space left
.on the bottom oi the typewritten portion but of some writing,
. typed ar manuscript.
The paper is exactly 34.6 cm. x 21.5 cm.
As no portion is
.alleged to be torn from the top or the sides we may ignore the
measurement of the breadth except to ·compare it with the tear.
The tear today is found along 17.5 cm. out of the total breadth
of 21.5 cm.
We have already said that except for 1.5 cm. to
the left of the letters 'ficate' the tear falls directly below the
1yped portion and that is 15.5 cm. in length.
7.5 cm. are below
the portion where the last line of typing 'ficate' to your wife'
and the words 'yours faithfully' occur.
The bottom of these
typed letters are exactly 34.4 cm. from the top leaving a strip
·which would be .2 cm.
In other words out of a tear of 17.5
·cm., 8 cm. allow only a space of .2 cm. for any writing.
Now for the remaining 8 cm.
This is made up of 2.5 cm.
below 'ta! ce~ti' which is almost whole and there is no writing on
this portion.
That leaves a tear of 5.5 cm. measures lengthwise
where there is no typing on top.
This is m'adc up of 3 traingu·
Jar portions joined by the .2 cm. strips below typed po1tions. ht
triangle is 2 cm. i,n length with I cm. pcrpcndicul~r from apex
lo base.
The second is 3.2 cm. base with a perpendicular of 1
cm. and the third is 2.8 cm, by 1 cm,
Therefore out of the total length of 17.S cm., 7.5 cm. is a
strip uniformly of .2 cm.
There are 3 triangles, in length res·
pectively 2 cm.. 3, 2 cm. and 2. 8 cm.