Advocates Act, 1961– s.48AA – Bar Council of India (BCI) – Power of review – Exercise of – Complaint by appellant against advocate alleging commission of serious acts of professional misconduct with State Bar Council – Disciplinary Committee found respondent guilty of misconduct – Order by the Bar Council whereby respondent debarred from practice for life and his name removed from the rolls of the Bar Council – Appeal before BCI by respondent – Disciplinary Committee agreed with the finding, however reduced the punishment – Respondent debarred for 18 months along with fine of Rs. 25,000/- – Review petition by respondent – Allowed by the Bar Council directing fresh consideration of the matter – On appeal, held: When the review power of the BCI is examined, in view of the facts, revisiting the issue on merits again on the pretext that the respondent was not granted proper opportunities to crossexamine PW-1 is clearly beyond review jurisdiction – Review power of the Disciplinary Committee/BCI is not to be confined within the narrow parameters laid down in s.114 and Or. XLVII r 1 CPC – At the same time, the power also cannot be extended to the extent that the reviewing authority becomes appellate authority over its own order passed earlier – BCI reviewed its own finding of fact and overturned the same on the same material which was produced earlier and going by the same arguments which were advanced earlier – BCI showed undue indulgence to the respondent by allowing him to take advantage of his own wrong, in the guise of exercising its review power – Party cannot take advantage of its own wrong – More so, respondent has tarnished the image of a noble profession by indulging into cheating and fraud – Thus, the order passed by the Disciplinary Committee of the BCI is set aside and its earlier order is revived.
Allowing the appeal, the Court
HELD: 1.1 The BCI formed an opinion that in the absence of an opportunity to cross-examine PW-1, the respondent was denied his valuable right to defend himself which infringed the principle of fair trial. At the same time, while allowing the review petition on the said basis, instead of remanding the case back to the Disciplinary Committee of the State Bar Council, the BCI has withdrawn the case to itself on the ground that by virtue of the Section 36B of the Act, the jurisdiction of the Disciplinary Committee of the State Bar Council comes to an end on expiry of the period of one year. It ordered that further enquiry shall be conducted by the Disciplinary Committee of BCI from the stage it was as on June 19, 2005 and the Chairman, BCI may constitute Disciplinary Committee of the BCI in this behalf. [Para 12] [822-H; 823-A-C]
1.2 The appellant had raised a preliminary issue questioning the maintainability of the review petition, inter alia, on the ground that scope of review jurisdiction was very limited. This objection has been turned down by the BCI with the remarks that review jurisdiction of the Disciplinary Committee of the Bar Council under the Act is wider than the review jurisdiction of a court under Section 114 CPC read with Rule 1, Order XLVII CPC. [Para 13][823-C-D]
1.3 The impugned order proceeded to hold that if a manifest wrong has been done, it is never too late to undo the wrong, since the factors that are placed on civil courts on their review powers are absent in review powers of the Disciplinary Committee, in terms of Section 44 and Section 48AA of the Advocate’s Act, 1961. There cannot be any doubt about the said proposition stated by the BCI. However, its application on the facts of the instant case is clearly unsustainable. BCI has, in fact, gone much beyond the scope of review powers, even when these are liberally construed. [Paras 14-15][ 823-G-H; 824-A-B]
1.4 The said ground of not allowing the respondent to cross-examine PW-1 was not taken in the review petition for the first time. It was argued even before the Disciplinary Committee of the State Bar Council. The State Bar Council considered the argument and rejected the same after it found that the respondent had intentionally adopted dilatory tactics. It specifically held that cross-examination of the complainant was closed after giving adequate opportunities to the respondent. However, every time, when the case was fixed for cross-examination of PW-1, the respondent would send the proxy counsel with a medical certificate stating that he was unable to present himself. The State Bar Council even found discrepancies and inherent contradictions in the medical certificates. [Para 16][824-C-E]
1.5 Even in the appeal filed by the respondent before the BCI, he had raised this ground. After considering the same, in the light of arguments of both sides and the material placed on the record, the BCI specifically rejected this contention, finding no merit therein, in its order dated September 10, 2011 and also affirmed the findings recorded by the State Bar Council that respondent had committed a serious professional misconduct by revisiting the matter as an appellate authority. [Para 17][825-AB]
1.6 The issue as to whether there was any denial of principles of natural justice or fair trial in closing the crossexamination of PW-1 or whether this course of action was right on the part of the State Bar Council after giving sufficient opportunities to the respondent, was specifically dealt with by the BCI and authoritatively rejected while deciding the appeal of the respondent. It arrived at a categorical and definite conclusion that the respondent was given sufficient opportunities to crossexamine the complainant and it is the respondent who was at fault in failing to avail the said opportunities as he was found delaying the proceedings on one pretext or the other. It clearly follows that the BCI found fault with the respondent whose attitude was non-participatory and he was avoiding attending the hearings on false pretext. [Para 18][825-F-H]
1.7 When the review power of the BCI is examined, keeping in view the said factual matrix in mind, the necessary consequence would be to hold that in such a situation revisiting the issue on merits again on the pretext that the respondent was not granted proper opportunities to cross-examine PW-1 is clearly beyond review jurisdiction. No doubt, the review power of the Disciplinary Committee/BCI is not to be confined within the narrow parameters laid down in Section 114 and Order 47 Rule 1, CPC. At the same time, the power also cannot be extended to the extent that the reviewing authority becomes appellate authority over its own order passed earlier. The liberty taken by the BCI outstrips even the wider amplitude and greater discretion that is granted to the Bar Council. It has reviewed its own finding of fact and overturned the same on the same material which was produced earlier and going by the same arguments which were advanced earlier. It is found that the BCI has shown undue indulgence to the respondent by allowing him to take advantage of his own wrong, in the guise of exercising its review power. It is a case of Nullus Commodum Capere Potest De Injuria Sua Propria meaning thereby a party cannot take advantage of its own wrong. [Paras 19-20][826-A-E]
Eureka Forbes Limited v. Allahabad Bank and Ors. (2010) 6 SCC 193 : [2010] 5 SCR 990 – referred to.
1.8 The respondent has tarnished the image of a noble profession by indulging into cheating and fraud. He duped the appellant by pretending that various criminal cases were filed against the appellant and there was inherent threat of arrest of the appellant therein. On the basis of this cooked up story of fictitious cases, the respondent extracted huge amounts of money from the appellant by adopting illegal means. In the process, in order to project semblance of those cases, the respondent fabricated number of documents. Ultimately, it was found that no such criminal cases were filed by the farmers against the appellant. The respondent stands convicted by the trial court in criminal proceedings. He had even the audacity of producing fabricated copy of the order of the High Court, for which the High Court initiated contempt proceedings against him and in those contempt petitions, he was found guilty and sentenced to undergo 6 months’ simple imprisonment along with fine of Rs. 2000/-. [Para 21][826G-H; 827-A-C]
1.9 The impugned order dated July 11, 2015 passed by the Disciplinary Committee of the BCI is set aside. With setting aside of order dated July 11, 2015 passed by the Disciplinary Committee of BCI, its earlier order dated September 10, 2011 stand revived. However, to the extent the said order reduces the punishment that was awarded to the respondent, same shall be subject to the outcome of Civil Appeal No. 273 of 2012, in case the same is revived by the appropriate Bench and it decides to hear that appeal on merits. [Paras 24-25][827-E-G]
O.N. Mohindroo v. District Judge, Delhi & Anr. (1971)
3 SCC 5 : [1971] 2 SCR 11 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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