http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

CASE NO.: Appeal (civil) 3543  of  2001

PETITIONER: N.G. DASTANE

       Vs.

RESPONDENT: SHRIKANT S. SHIVDE AND ANR.

DATE OF JUDGMENT:       05/05/2001

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

JUDGMENT:

THOMAS, J.

Leave granted. L...I...T.......T.......T.......T.......T.......T.......T..J

   We  are much grieved, if not peeved, in noticing how two advocates  succeeded  in  tormenting a  witness  by  seeking numerous  adjournments for cross-examining him in the  Court of a judicial magistrate.  On all those days the witness had to  be present perforce and at considerable cost to him.  It became  a matter of deep concern to us when we noticed  that the  judicial magistrate had, on all such occasions, obliged the  advocates  by  granting such adjournments on  the  mere asking  to the incalculable inconvenience and sufferings  of the witness.  When he was convinced that those two advocates were  adopting  the tactics of subterfuge by  putting  forth untrue  excuses every time for postponing  cross-examination he  demurred.   But  the  magistrate   did  not  help   him. Ultimately  when pressed against the wall he moved the State Bar  Council for taking disciplinary proceedings against the advocates  concerned.  But the State Bar Council simply shut its  doors  informing him that he did not have even a  prima facie  case  against the delinquent advocates.  He  met  the same  fate  when  he moved the Bar Council of India  with  a revision petition, as the revision petition was axed down at the threshold itself.  The exasperated witness, exhausted by all  the drubbings, has now come before this Court with this appeal by special leave.

   Appellant,  the  aforesaid aggrieved witness,  describes himself to be an agriculturist scientist.  He claims to have worked  as an Advisor in the UNO until he retired therefrom. He filed a complaint before the Judicial Magistrate of First Class,  Pune  (Maharashtra)  against some  accused  for  the offence  of  theft of electricity.  The accused in the  said complaint  case  engaged  Advocate Shri  Shivde  (the  first respondent)  and  his  colleague Shri Kulkarni  (the  second respondent)  who were practising in the courts at Pune.  The two  respondent-advocates  filed a joint Vakalatnama  before the  trial court and the trial began in 1993.  Appellant was examined in-chief.  Thus far there was no problem.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

   The  agony of the appellant started when the  Magistrate posted  the  case for cross-examination of the appellant  on 30.7.1993.   As per the version of the appellant, he had  to come  down  from New York for being cross-examined  on  that day,  but  the  second  respondent advocate  sought  for  an adjournment  on  the  ground  that it was  not  possible  to conduct the cross-examination unless all the other witnesses for  the prosecution were also present in court.  We have no doubt  that such a demand was not made with good faith.   It was  aimed  at causing unnecessary harassment to  witnesses. No other purpose could be achieved by such demand.  Although the  court was conscious that insistence of presence of  the other   witnesses  has  no   legal  sanction  the   Judicial Magistrate  conceded  to the request and posted the case  to 23.8.1993.

   On  that  day,  appellant  and all  his  witnesses  were present  in  court.  But both the respondents sought for  an adjournment, the first respondent on the premise that he was busy  outside  the court, and the second respondent  on  the premise  that  the father of the first respondents  friend expired.   The Judicial Magistrate yielded to that request, apparently in a very casual manner and adjourned the case to 13.9.1993.

   On  that  day  also  the   respondents  sought  for   an adjournment  but on a flippant reason.  Appellants  counsel raised  objections  against  the   prayer  for  adjournment. Nevertheless  the  Judicial Magistrate again  adjourned  the case and posted it to 16.10.1993.  We may point out that the said  date  was  chosen  by the  court  as  the  respondents represented  to  the  court  that the said  date  was  quite convenient to them.

   Appellant,  thoroughly disgusted, had two options before him.  One was to get dropped out from the case and the other one was to continue to suffer.  He had chosen the latter and presented   himself   along  with   all  the  witnesses   on 16.10.1993.   But  alas,  the respondents  again  asked  for adjournment on that day also.  This time the adjournment was sought  on  the ground that one of the respondent  advocates was  out of station.  It seems that the Judicial  Magistrate yielded to the request this time also and posted the case to 20.11.1993 peremptorily.  It would have been a sad plight to see  how the appellant and his witnesses were walking out of the  court  complex without the case registering even a  wee bit  of  progress in spite of his attending the Court on  so many  days  for  the purpose of being  cross-examined.   His opposite  party would have laughed in his mind as to how his advocates succeeded in tormenting the complainant by abusing the  process  of court through securing  adjournments  after adjournments.   The complainant would have wept in his  mind for  choosing  a  judicial  forum   for  redressal  of   his grievance.

   On  20.11.1993,  appellant  and all his  witnesses  were again  present, possibly with a certitude that they would be examined at least now because of the peremptory order passed by  the Magistrate on the previous occasion.  Unfortunately, the peremptoriness of the order did not create even a ripple on  the respondents advocates and they ventured to seek for an  adjournment  again  on  the   ground  that  one  of  the respondents advocates was indisposed.  There was not even a suggestion  as  to  what  was   the  inconvenience  for  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

co-advocate.   Even  so,  the  Magistrate  yielded  to  that request also and the case was again adjourned to 4.12.1993.

   The  flash  point  in  the cauldron  of  the  agony  and grievance  of  the  appellant   reached  on  4.12.1993.   He presented   himself  before  the   court  for  being  cross- examined,  despite  all the frets and vexations suffered  by him  till  that  day hoping that at least on  this  occasion respondents  would  not  concoct any alibi for  dodging  the cross-examination.   But  the  second   respondent  who  was present  in the court sought for an adjournment again with a written application, on the following premise:

   Advocate  Shivde (first respondent) is unable to  speak on  account  of the throat infection and  continuous  cough. The  doctor has advised him to take two weeks rest.   Hence he is unable to conduct the matter before this Honble court today.   It is therefore prayed that the hearing may  kindly be adjourned for three weeks in the interest of justice.

   The   Judicial   Magistrate  without   any   qualms   or sensitivity  succumbed to the said tactics also and  granted the  adjournment  prayed for.  The magistrate did  not  care even  to ask the second respondent why he could not  conduct the  cross-examination, if his colleague first respondent is so  unwell.   But  the  magistrate  felt  no  difficulty  to immediately allow the request for again adjourning the case. Of  course the magistrate ordered that a medical certificate should  be  produced  by the first respondent  and  cost  of Rs.75/-  should be paid to the appellant.  A poor solace for the agony inflicted on him.

   According to the appellant, after the case was adjourned on 4.12.1993, he went out of the court room and while he was walking  through  the  corridors  of the  court  complex  he happened to come across the first respondent forcefully and fluently  arguing a matter before another court situated in the  same  building.  It was that sight which caused him  to venture  to lodge the complaint against both the respondents before  the Maharashtra State Bar Council on 27.12.1993.  He had  narrated  the details of his complaint in the  petition presented before the State Bar Council and prayed for taking necessary actions against the two advocates.

   Both  the  respondents filed a joint reply to the  above complaint  in which they stated, inter alia, that respondent No.1   was  suffering  from   severe  throat  infection  and temperature  and was under medical treatment of Dr.   Manavi and  that  respondent  No.1 sought adjournments in  all  the cases  in which prolonged cross-examination was required and he  was  not in a position to speak continuously because  of severe  cough problem.  They did not say anything about  the large  number  of occasions they sought for  adjourning  the cross-examination of the complainant.

   The  State  Bar  Council  obtained  a  report  from  its Advocate  Member Sri B.E.  Avhad.  That report says that  he interrogated  the parties and understood that the complaint is  without  any substance. It was on the strength  of  the said  report that the State Bar Council has dropped  further proceedings  against the respondents.  The Revision Petition was  disposed of by the impugned order holding that the Bar Council  of  Maharashtra was perfectly justified in  passing the  impugned  resolution  dated 12.11.1994 and  we  see  no

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

reason  to interfere with the same;  no prima facie case  is made  out against the respondents and there is no reason  to believe  that  the  advocate had committed  professional  or other misconduct.

   When  we heard the arguments of Shri PH Parekh,  learned counsel  for the appellant and Sri Vijay S.Kotewal,  learned Senior  counsel for the respondents we felt, apart from  the question of professional misconduct of the respondents, that the   Judicial   Magistrate,   who   yielded  to   all   the procrastinative  tactics,  should be made answerable to  the High  Court  so  that  action could  be  taken  against  the Magistrate  on  the  administrative side  for  such  serious laches.   We, therefore, called upon the said Magistrate  to show cause why we shall not make adverse remarks against the magistrate  in  our judgment.  The said Judicial  Magistrate has  now  explained that she had only started working  as  a regular  magistrate  just after completing the  training  on 6.7.1993.   If so, the Judicial Magistrate would have been a novice  in  the judicial service.  On that ground alone,  we persuade   ourselves  to  refrain   from  recommending   any disciplinary  action against the Magistrate.  Be that as  it may,  we now proceed to consider whether the acts attributed to the respondents amounted to professional misconduct.

   Chapter  V  of  the Advocates Act 1961 (for  short  the Act)  contains  provisions for dealing with the conduct  of Advocates.  The word misconduct is not defined in the Act. Section 35 of the Act indicates that the misconduct referred to  therein is of a much wider import.  This can be  noticed from  the  wordings  employed  in sub-section  (I)  of  that Section.  It is extracted herein:

   Where  on  receipt of a complaint or otherwise a  State Bar  Council has reason to believe that any advocate on  its roll has been guilty of professional or other misconduct, it shall  refer  the  case  for disposal  to  its  disciplinary committee.

   The  collocation of the words guilty of professional or other  misconduct  has  been  used   for  the  purpose   of conferring  power on the Disciplinary Committee of the State Bar  Council.  It is for equipping the Bar Council with  the binocular  as well as whip to be on the qui vive for tracing out  delinquent  advocates  who   transgress  the  norms  or standards  expected  of  them  in  the  discharge  of  their professional  duties.   The  central function of  the  legal profession  is  to  help   promotion  of  administration  of justice.   Any  misdemeanor or misdeed or  misbehaviour  can become  an act of delinquency, if it infringes such norms or standards and it can be regarded as misconduct.

   In  Blacks Law Dictionary misconduct is defined as a transgression  of  some  established and  definite  rule  of action,  a forbidden act, a dereliction from duty,  unlawful behaviour,   willful  in  character,   improper   or   wrong behaviour;    its   synonyms   are   misdemeanor,   misdeed, misbehaviour,   delinquency,   impropriety,   mismanagement, offense, but not negligence or carelessness.

   The  expression professional misconduct was  attempted to  be  defined by Darling J.  in A Solicitor ex p  the  Law Society, in re [1912 (1) KB 302) in the following terms:

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

profession  has done something with regard to it which would be  reasonably  regarded as disgraceful or dishonourable  by his  professional  brethren of good repute  and  competency, then  it  is open to say that he is guilty  of  professional misconduct.

   In  RD  Saxena vs.  Balram Prasad Sharma [2000  (7)  SCC 264]  this Court has quoted the above definition rendered by Darling  J.,  which was subsequently approved by  the  Privy Council  in George Frier Grahame vs.  Attorney General  (AIR 1936 PC 224) and then observed thus:

   Misconduct envisaged in Section 35 of the Advocates Act is   not   defined.   The   section  uses   the   expression misconduct,   professional   or    otherwise.   The   word misconduct  is  a relative term.  It has to be  considered with reference to the subject matter and the context wherein such  term  occurs.   It literally means  wrong  conduct  or improper conduct.

   Advocate  abusing  the  process of court  is  guilty  of misconduct.   When  witnesses  are   present  in  Court  for examination  the  advocate concerned has a duty to see  that their  examination  is conducted.  We remind that  witnesses who  come to the Court, on being called by the Court, do  so as  they  have no other option, and such witnesses are  also responsible citizens who have other work to attend for eking out livelihood.  They cannot be treated as less respectables to  be  told  to  come  again and again  just  to  suit  the convenience  of the advocate concerned.  If the advocate has any  unavoidable inconvenience it is his duty to make  other arrangements  for examining the witnesses who is present  in Court.   Seeking adjournments for postponing the examination of  witnesses  who are present in Court even without  making other  arrangements  for  examining   such  witnesses  is  a dereliction  of  advocates duty to the Court as that  would cause  much harassment and hardship to the witnesses.   Such dereliction  if  repeated would amount to misconduct of  the advocate  concerned.  Legal profession must be purified from such abuses of the Court procedures.  Tactics of filibuster, if adopted by an advocate, is also professional misconduct.

   In  State of UP vs.  Shambhu Nath singh [JT 2001 (4)  SC 319]  this  Court  has  deprecated the  practice  of  Courts adjourning  cases without examination of witnesses when such witnesses are in attendance.  We reminded the Courts thus:

   We  make  it  abundantly  clear that if  a  witness  is present in court he must be examined on that day.  The court must  know that most of the witnesses could attend the court only  at  heavy cost to them, after keeping aside their  own avocation.   Certainly  they  incur suffering  and  loss  of income.   The  meagre amount of Bhatta (allowance)  which  a witness  may be paid by the court is generally a poor solace for  the financial loss incurred by him.  It is a sad plight in  the  trial courts that witnesses who are called  through summons  or  other  processes  stand at  the  doorstep  from morning  till evening only to be told at the end of the  day that  the case is adjourned to another day.  This  primitive practice must be reformed by presiding officers of the trial courts  and  it  can be reformed by every one  provided  the presiding  officer  concerned has a commitment to duty.   No sadistic  pleasure  in seeing how other persons summoned  by him as witnesses are stranded on account of the dimension of his  judicial powers can be a persuading factor for granting

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

such adjournments lavishly, that too in a casual manner.

   When  the Bar Council in its wider scope of  supervision over  the conduct of advocates in their professional  duties comes  across any instance of such misconduct it is the duty of  the  Bar  Council concerned to refer the matter  to  its Disciplinary  Committee.  The expression reason to believe is  employed  in Section 35 of the Act only for the  limited purpose  of  using  it as a filter for  excluding  frivolous complaints  against advocates.  If the complaint is  genuine and  if the complaint is not lodged with the sole purpose of harassing  an  advocate  or if it is not  actuated  by  mala fides,  the Bar Council has a statutory duty to forward  the complaint to the Disciplinary Committee.

   In  Bar  Council of Maharashtra vs.  MV Dabholkar  [1976 (2)  SCR 48] a four Judge Bench of this Court had held  that the  requirement of reason to believe cannot be  converted into   a   formalised  procedural   road  block,  it   being essentially a barrier against frivolous enquiries.

   In  our opinion, the State Bar Council has abdicated its duties  when it was found that there was no prima facie case for  the Disciplinary Committee to take up.  The Bar Council of  India also went woefully wrong in holding that there was no  case  for revision at all.  In our considered  view  the appellant complainant has made out a very strong prima facie case for the Disciplinary Committee of the State Bar Council to  proceed with.  We, therefore, set aside the order of the State  Bar  Council  as well as that of the Bar  Council  of India  and we hold that the complaint of the appellant would stand  referred  to the Disciplinary Committee of the  State Bar Council.

   Section   36(2)  of  the   Advocates  Act  reads   thus: Notwithstanding  anything  contained in this  Chapter,  the disciplinary  committee  of  the Bar Council of  India  may, either  of  its own motion or on a report by any  State  Bar Council  or  an  application  made  to  it  by  any   person interested,   withdraw  for  inquiry   before   itself   any proceedings  for  disciplinary action against  any  advocate pending  before the disciplinary committee of any State  Bar Council and dispose of the same.

   As  the  complaint is now, by virtue of  this  judgment, pending  before the Disciplinary Committee of the State  Bar Council  we consider the question whether it is  appropriate that the Bar council of India takes it up for the purpose of referring   it  to  its   Disciplinary  Committee.   As  the misconduct  alleged  is  of  the year 1993-94  the  ends  of justice  demand  that the Disciplinary Committee of the  Bar Council  of  India should now deal with the complaint.   For that  purpose  we order that the complaint of the  appellant would  stand  referred  to the Bar Council  of  India  under Section  36  of the Advocates Act.  Now we direct  the  said Disciplinary  Committee to adopt such steps as are necessary for the disposal of the complaint in accordance with law and in the light of the observations made above.

   The appeal is disposed of accordingly.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7