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PETITIONER: VIJAYSINGH RATHORE

       Vs.

RESPONDENT: MURARILAL & ORS.

DATE OF JUDGMENT03/08/1979

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. DESAI, D.A. KOSHAL, A.D.

CITATION:  1979 AIR 1719            1980 SCR  (1) 205  1979 SCC  (4) 758

ACT:      Advocates Act 1961-S. 35-Rule 10, Chapter 11, Parr 6 of the Rules  for  professional  misconduct-Scope  of-Reprimand whether meets ends of justice.

HEADNOTE:      Rule 10,  Chapter II, Part 6 of the Rules framed by the Bar Council  of India  for professional mis-conduct provides that an  advocate shall  not stand  a surety, or certify the soundness of  a surety,  for his  client  required  for  the purposes of any legal proceedings.      The appellant, a practising advocate, was suspended for one month by the Disciplinary Tribunal of the Bar Council of India on  the ground  that in violation of the rules, he had certified the  solvency of a surety in a bailable offence in which  the  accused  was  his  client.  The  appellate  body dismissed his appeal.      On the question whether a reprimand would meet the ends of justice,      Allowing the appeal in part, ^      HELD: (1)  Section 35  of  the  Advocates  Act  permits reprimand provided  the ends  of public  justice are  met by this leniency. Ordinarily this Court does not interfere with a punishment  imposed by  the Disciplinary  Tribunal  except where strong  circumstances involving principle are present. Censure has  a better deterrent value on the errant brethren in the  profession in  some situations than suspension for a month from professional practice.      In the  present case  the lawyer was young, the offence was not tainted with turpitude and the surety whose solvency he certified  was found  to be good. These circumstances are amelioratory and  hardly warrant  codign punishment.  Public admonition is  an appropriate  sentence in the present case. p,      Public professions  which enjoy  a monopoly  of  public audience have statutorily enforced social accountability for purity, probity and people-conscious service. In our country bail  has   become  a  logy  and  an  instrument  of  unjust incarceration.  This   harasses  the   poor  and   leads  to corruption. A  smart lawyer  who  appears  for  an  indigent

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accused may  commiserate and  enquire whether  the surety is solvent. If  he is satisfied that the surety is sufficiently solvent, he  may certify the solvency of the surety. In some cases the  detainee may  be a close relation or close friend or a poor servant of his. In that capacity, not as a lawyer, he may know the surety and his solvency or may offer himself as a  surety. In  such cases  he violates  the rule  all the same. The degree of culpability in such cases depends on the total circumstances and the social milieu.      The rule  under consideration is a wholesome one in the sense that  lawyers should  not misuse their role for making extra perquisites  by standing  surety for  their clients or certifying the solvency of such sureties. The Court may not 206 frown upon  a lawyer  who helps out the person, not by false pretences, but  on the  strength of  factual  certitude  and proven inability to substantiate solvency.      The Court  reprimanded the  appellant and directed that he shall  not violate  the norm  of professional conduct and shall uphold  the  purity  and  probity  of  the  profession generally.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1922 of 1979. From  the Judgment  and order  dated 7-5-1979  of  the Disciplinary Committee  of the  Bar Council of India in D.C. Appeal No. 19/78.      Appellant  ill  Person  and  S.  S.  Khanduja  for  the Appellant. The order of the Court was delivered by      KRISHNA IYER, J. The Appellant, a fledging in the legal profession, has  been punished  by the  Tribunal of  the Bar Council  for   eating  the   forbidden  fruit   of   dubious professional conduct  by improperly  certifying the solvency of a  surety for  an accused  person, his client. suspension from practice for one month is the punishment awarded by the trial tribunal and in appeal. Counsel for the appellant Shri Khanduja, has  pleaded for  an admonitory  sentence  by  the Court   ex-misericordium.    Of   course,    the    punitive pharmacopoeia of  the Advocates  Act, in  Section  35,  does permit reprimand provided the ends of public justice are met by this  leniency. After all, public professions which enjoy a monopoly  of public  audience have  a statutorily enforced social  accountability   for  purity,  probity  and  people- conscious service.  In our Republic, Article 19(1) (g) vests a fundamental  right to practise any profession only subject to reasonable  restrictions in  the interests of the general public (vide  Art. 19(6). The law forbids the members of the legal or  other like  professions from converting themselves into a  conspiracy against  the laity  and  all  regulations necessary  for   ensuring  a   people-oriented  bar  without exploitation potential  are permissible, nay necessary. Rule 10, chapter  2 part six of the Rules of Bar Council of India for Professional Misconduct framed for disciplinary purposes is stated  to have  been violated by the appellant for which dispensatory punishment has been meted out.      The factual setting gives an insight into the degree of deviance of  the delinquent  appellant. Punishment  must  be geared to  a social goal, at once deterrent and reformatory. In  the   present  case,   the  appellant  is  charged  with certifying the  solvency of  a surety in a bailable offence. Obviously, the accused, who was the client of the appellant, was entitled  to be enlarged on bail because the offence for Which he was in custody was admittedly bailable. Even so, it

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is a  common phenomenon  in our  country that  bail has too, often  become   a  bogey   and  an   instrument  of   unjust incarceration. There are 207 some magistrates  who are never satisfied about the solvency of sureties except when the property of the surety is within their jurisdiction  and Revenue officers have attested their worth. This  harasses the  poor and  leads to  corruption as pointed out  by this  Court in  Moti  Ram’s  case.  It  may, therefore, be  quite on  the  cards  that  some  sympathetic lawyer who  appears for  an indigent accused may commiserate and  enquire  whether  the  surety  is  solvent.  If  he  is satisfied, on  sure basis,  that the  surety is sufficiently solvent, then  he may  salvage the freedom of the accused by certifying the  solvency of  which he has satisfied himself. It is also possible that the detainee is a close relation or close friend or a poor servant of his. In that capacity, not as a  lawyer, he may know the surety and his solvency or may offer himself as a surety. If a lawyer’s father or mother is arrested and  the Court  orders release on bail, it is quite conceivable and  perhaps legitimate,  if the son appears for his parent  and also stands surety. He violates the rule all the same.  The degree  of culpability  in a lawyer violating Rule  10,   chapter  2,   part  six  depends  on  the  total circumstances and the social milieu.      This  Court   has  held,   taking  cognizance   of  the harassment flowing  from sureties being insisted upon before a person  is enlarged  or bailed out, that the Court has the jurisdiction  to   release  on  his  own  bond  without  the necessity of  a surety.  The question, therefore, is whether the circumstances  of the  offence and offender are venal or venial.      The Rule with which we are concerned is a wholesome one in the  sense that  lawyers should not misuse their role for making  extra  perquisites  by  standing  surety  for  their clients or certifying the solvency of such sureties. That is a bolt  on the bar, an exploitative stain on the profession. At the  same time,  the punishment  is flexible in the sense that where the situation cries for the help of the lawyer in favour of  a client  who is  languishing in jail because his surety is being unreasonably rejected, we may not frown upon a lawyer  who helps  out the person, not by false pretences, but  on   the  strength  of  factual  certitude  and  proven inability to substantiate solvency. In the present case, the circumstances are  amelioratary and  hardly warrant  condign Punishment.      The lawyer  is young,  the offence  is not tainted with turpitude and  the surety  whose solvency  be certified  was found to  be good. The most that may be justified is perhaps a public  reprimand since  censure has  a  better  deterrent value on the errant brethren in the 208 profession in  some situations than a suspension for a month from professional  practice which  may pass unnoticed in the crowd of  lawyers and  the delinquent  himself may be plying his business  except for  appearance in  Court. In  suitable cases, of  course, even severity of suspension or disbarment may be justified.      This Court  should  not  interfere  ordinarily  with  a punishment imposed by the Disciplinary Tribunal except where strong circumstances involving principle are present. In our vast  country  of  illiterate  litigants  and  sophisticated litigation, the  legal position  must be  so explained as to harmonise the  interests of  the indigents  who are  marched into Court  and the professional probity of the Bar which is

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an extended instrument of justice.      We  hold  that  public  admonition  is  an  appropriate sentence in the present case and proceed to administer it in open court  to the  appellant !  We hereby reprimand him and direct that  he shall  not violate the norms of professional conduct and  shall uphold  the purity  and  probity  of  the profession generally,  and, in  particular, as  spelt out in the rules framed by the Bar Council of India. We condone his deviance this  time and  warn him  that he shall not violate again.      The appeal is, to this extent, allowed and the sentence of reprimand substituted for the sentence of suspension. P.B.R.                               Appeal allowed in part. 209