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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.