Bar Council of Maharashtra and Goa vs Rajiv Nareshchandra Narula & Ors.

Held: Existence of a jural relationship between the complainant and the advocate concerned is a precondition for the invocation of disciplinary jurisdiction on the ground of “professional misconduct” – Since the respondent-advocate was not representing the complainant or his predecessor, no justification behind his arraignment in the complaint for alleged misconduct within the meaning of s.35 – There existed no professional relationship between the respondent-advocate and the complainant – His prosecution, as being the lawyer of the opposite party in the suit before the High Court, highly objectionable, totally impermissible, and absolutely uncalled for – Acts attributed to the advocate, taken on their face value, cannot be regarded as misconduct – Furthermore, recording of reasons to believe that the advocate has committed misconduct is a sine qua non before the complaint can be referred to the disciplinary committee for inquiry – Order passed by the Judge-Advocate, referring the complaint to the DC, is absolutely cryptic and laconic for it does not record any satisfaction to the effect that the respondent-advocate had committed misconduct as provided u/s.35 – Order does not even make a bald reference to the gist of allegations as set out in the complaint and hence, suffers from total non-application of mind and does not satisfy the requirements of a valid reference order – In the absence of such prima facie satisfaction, the statutory requirement u/s.35 remains non-complied, and the order of reference is ex facie in teeth of s.35(1), thus, cannot be sustained – Also reference of a complaint to DC would have serious consequences on the professional career of the lawyer and could tarnish his image and standing in the profession – Complaint and all proceedings thereof, quashed and set aside – Cost of Rs.50,000/- imposed on the appellantBCMG for entertaining the frivolous complaint and for dragging the respondent-advocate to this Court, which would be paid to the respondent-advocate. [Paras 32-41]

Advocates Act, 1961 – s.35 – Punishment of advocates for misconduct – Complaint by one against an advocate alleging professional misconduct u/s.35, for identifying the deponent of the affidavit filed with the chamber summons, and in doing so, she purportedly attested to the correctness of the same which were found to be false – Appellant-Bar Council directed registration of the complaint and referring the same to the Disciplinary Committee for undertaking the inquiry – Writ petition by the advocate – High Court quashed the complaint – Correctness:

Held: Finding recorded by the High Court that the mere act of identifying the deponent in an affidavit filed with the chamber summons would not make the advocate responsible for the contents of the affidavit, and the allegations set out in the complaint to be wholly absurd and untenable, perfectly justified and hence unassailable – An advocate, by mere attestation of the affidavit, does not become a privy to the contents of the affidavit – Hence, ex facie, the complaint filed by the petitioner against the respondentadvocate not only bereft of substance but also founded on malicious and spiteful insinuations directed against the advocate who merely identified the opposite party in an affidavit – Steps taken and order passed by the BCMG in directing registration of the complaint and in referring the same to the DC for undertaking the inquiry illegal on the face of the record, bordering on perversity – It is manifestly a case of malicious prosecution of the advocate at the behest of the opponent litigant – Impugned order passed by the High Court quashing the complaint in writ jurisdiction, does not, ex facie, suffer from any infirmity – Complainant and, thereafter, the BCMG, caused immeasurable grief and harassment to the respondent-advocate – Cost of Rs.50,000/- each imposed on the complainant-petitioner, and the Bar Council, which would be paid to the respondent-advocate. [Paras 52-57]