TMI Blog1970 (8) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... en the right of appeal under S. 37 of the Advocates Act of 1961, against the orders of the Disciplinary Committee of the Bar Council of the State. The facts necessary to bring out the controversy may be briefly stated. The appellant is an advocate from Maharashtra. The Bar Council of the State of Maharashtra had called upon him suo motu to show cause why he should not be held guilty of misconduct. It appears that the appellant was convicted before a Summary Court in London on a charge of pilfering some articles from departmental stores and sentenced to a fine. The record of the proceedings in London was not before the Bar Council of the State and action was taken on the basis of a brief report of the incident in a newspaper. The appellant explained before the disciplinary committee of the Bar Council of the State that he was the victim of a misunderstanding but as he had no means of defending himself effectively, he was found guilty and received a light sentence of fine. He explained how he had fallen into this unfortunate predicament and did not know how to extricate himself. The order of the Summary Court was not a speaking order and the proceedings were summary. The discip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, Licensing Acts, Milk and Dairies (Amendment) Act, Rating and Valuation Act, Summary Jurisdiction Act, Union Committee Act, Local Acts, in certiorari proceedings and the Defence of Realm Regulations to mention only a few. The list of Indian Acts is equally long. As a result of the frequent use of this rather vague phrase, which practice, as Lord Parker pointed out in Dealing Corporation v. Jones(L. R. [1959] 1 Q. B. D. 384.), has not been avoided, in spite of the confusion it causes, selections from the observations of judges expounding the phrase in the context of these varied statutes were cited before us for our acceptance. The observations often conflict since they were made in different contexts and involved the special standing of the party claiming the right of appeal. Yet these definitions are not entirely without value for they disclose a certain unanimity on the, essential features of this phrase, even in the diversity of the contexts. The font and origin of the discussion is the well-known definition of the phrase by James L.J. in In Re Sidehotham Ex. j. Sidebotham((1880) 14 Ch. D. 458 C.). It was observed that the words person aggrieved' in s. 71 of the Ban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rasses him. In a later case (In Re Woods Ex. P. Ditton) ([1879] 40 L. T. 297 C.A. 79..) Cotton L.J. held that even so the person must be aggrieved by the very order and not by any of the consequences that ensue. This was clarified in R. v. London County Keepers of the Peace and Justices([1890] 20 Q. B. D. 357 at 361.), by Lord Coleridge C.J. while dealing with the Highway Act, denying the right of appeal in these words Is a person who cannot succeed in getting a conviction against another a person aggrieved ? He may be annoyed at finding that what he thought was a breach of the law is not a breach of law; but is he aggrieved because someone is held not to have done wrong ? It is difficult to see that the section meant anything of the kind. The section does not give an appeal to anybody but a person who is by the direct act of the Magistrate aggrieved-that is who has had something done or determined against him by the Magistrate. These observations again show that the person must himself suffer a grievance, or must be aggrieved by the very order because it affects him. Two cases which may usefully be seen in the same context may next be mentioned. In Jennings v. Kelly([174] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ] 1 Q. B. D. 384.), in applying too readily the definitions given in relation to other statutes but I do not think I am going beyond what Lord Hewart C.J. said and what Lord Parker C.J. did in the case. Lord Parker observed .... As Lord Hewart C.J. pointed out in Seven Oaks Urban District Council v. Twynam : But as has been said again and again there is often little utility in seeking to interpret particular expressions in one statute by reference to decisions given upon similar expressions in different statutes which have been enacted alio intuitu. The problem with which we are concerned is not, what is the meaning of the expression aggrieved' in any one of a dozen other statutes, but what is its meaning in this part of this statute ?' Accordingly, I only look at the cases to which we have been referred to see if there are general-principles which can be extracted which will guide the court in approaching the question as to what the words person aggrieved' mean in any particular statute. If I may say respectfully I fully endorse this approach. I am now in a position to examine the Advocates' Act but before so I must refer to a case near in point to this case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be struck off the roll of court. Then there is the West African Court of Appeal and it hears appeals from the Supreme Court' in civil and criminal matters. In an earlier case in which a certain Mr. Mccauley was struck off the roll of the Supreme Court of Sierra Leone and Mr. Mccauley sought to appeal to. the Full Court of West Africa it was ruled by the Full Court that the decision of the Chief Justice was not a decision of the Supreme Court' and was, therefore, not appealable and that the only remedy was to obtain special leave to appeal to the Privy Council (see W. E. A. Mccauley' v. Judges of the Supreme Court of Sierra Leone and Anr.(1). The legislature' then added s. 14 which provided: An appeal shall lie to the Court of Appeal from any order of the judge suspending a barrister or solicitor of the Supreme Court from practice or striking his name off the roll, and for the purposes of any such appeal any such order shalt be deemed to be an order of the Supreme Court. The words of the section show that the legislature did not regard a decision in disciplinary matters as a judgment of a court but only deemed it to be so. The Full Court on the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or was otherwise a point in which the public interest was involved. In that case the Attorney General was a person aggrieved'. The observations of Lord Denning clearly meant that the Attorney General could not pose as a person aggrieved' to seek to bring a simple case of acquittal for reversal by the Judicial Committee under the 31st section of the Order in Council for he could not be regarded as a person aggrieved'. The remark was made perhaps to repel an argument that every case of acquittal would make the Attorney General an aggrieved person'. Lord, Denning said that this was not the true position. The Attorney General could only move the judge and there his duty ended. The law gave him no express right of appeal and he could not claim to be a person aggrieved'. He could only invoke the 3 1 st section if he could make out his grievance and it was found to be as a person representing the Crown and the guardian of public interest seeking to get reversed a decision which struck at the root of the jurisdiction of the disciplinary judge, by denying that the Deputy Judge was exercising judicial power under s. 7 of the Supreme Court Ordinance. The Crown was aggri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observations of Lord Denning in the Gambia case and wishes to plead that he enjoys a special position in the Bar and under the Advocates Act and therefore is entitled to appeal as a ' person aggrieved'. This was the line adopted by Mr. M. C. Setalvad, counsel for the Bar Council of India. On the other band, Mr. V. S. Desai appearing for the Advocate General argued that the Advocate-General having notice of disciplinary proceedings, in any event, must be treated as a person aggrieved' within ss. 35 and 38 of the Advocates Act. I shall consider the narrow question presented by Mr. Setalvad latter. I shall first take up for consideration the larger question and the more general ,application of the expression person aggrieved.-, In support of his contention Mr. V. S. Desai cited three cases from this Court, one from the Judicial Committee and one from the Bombay High Court. They all relate to disciplinary proceedings and I may begin by considering them. The case of the privy Council reported in Advocate General of Bombay Ors. v. Phiroz Rustamji Bharucha(37 Bom. L. R. 722) was next cited. It was an application for special leave by the Advocate General of Bombay in a pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some cases that a party which moves the court or a Person brought before the court to be bound by its order May be a person aggrieved., See for example the case of the Official Receiver in Re Payne Ex p. Castle Mail Packets decided on October 10, 1968. 69Sup.CI(P)71-12 Co.( [1886] 18 Q. B. D. 154 C. A. ), and In Re Lamb Ex. p. Board of Trade already considered by me. Madani's case does not help to resolve the dispute centering round the Advocate-General. The next case is reported in Bhataraju Nageshwara Rao v. The Hon'ble Judges of the Madras High Court and others([1955] 1 S. C. R. 1055.). That case arose under the Bar Councils Act, 1926 when the Judges exercised disciplinary power. In the case before the Supreme Court the Judges of the Madras High Court were shown as respondents. This Court observed at page 1064 as follows Before parting with this appeal we desire to say that it appears to us that it was wholly wrong and inappropriate for the appellant to have made the Honourable Judges of the Madras High Court respondents to this appeal. It appears that in some cases involving contempt of Court the Honourable Judges have been made parties. It is not necessary for us to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kes the place of the Advocate-General. Other members are elected. In the Bar Council of India, the Attorney-General and the SolicitorGeneral are ex officio members and the other members are elected one each by the State Bar Councils. In the Union Territory of Delhi the Additional Solicitor-General is ex officio member. The functions of the Advocate-General are not different from those of the other members in so far as the affairs of the Bar Council are concerned. The only matters where the Advocate-General, the Attorney-General and the Solicitor-General and the Additional Solicitor-General are mentioned are these. The Act gives a right of preauidence over other advocates to the Attorney-General, the Solicitor-General, the Additional Solicitor-General and the Advocate-General. The right of pre-audience gives them a standing for hearing of cases but does not confer on them any other rights. The magniloquent phrases such as Leader of the Bar, Keeper of the Conscience of the Bar have no meaning neither now, nor before under the Bar Councils Act of 1926. They are just honorific titles given by courtesy but are not grounded on law. Indeed the Keepers of the Conscience of the Bar are the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either case refer them for disposal to their respective disciplinary committees. The disciplinary committee in each case can reject the complaint summarily, but if it proceeds to hear the matter further it causes a notice thereof to be sent to the advocate concerned and to the Advocate-General of the State or the Attorney-General of India, as the case may be. The disciplinary committee after giving the advocate concerned and the Advocate-General or the, Attorney General, as the case may be, an opportunity to be heard makes an order either dismissing the complaint or where the proceedings are found to be not fit for consideration and are started at the instance of the Bar Council, ordering that they may be filed. The committee may, if the advocate is found guilty, reprimand him or suspend him from practice for such period as it deems fit, or may remove him altogether from the roll of advocates. The Advocate-General or the Attorney-General, as the case may be, need not appear personally but may appear through an advocate. From the decision of the disciplinary committee of the State Bar Council an appeal lies to the bar Council of India which is heard by the disciplinary committe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ped to reach a proper conclusion. If he is not a person summoned to be bound by the order but a person who is heard in a dispute between others merely to be of assistance in reaching the right conclusion he can hardly have a grievance. The Advocate-General must after he has done his duty leave the matter to the complainant and the advocate or the Bar Council to take the matter further if they choose. In no event the Advocate-General is in the nature of a party having independent rights which he can claim are injured by the decision. The decision does not deny him anything nor does it ask. him to do anything. It is thus that Lord Denning says that in these disciplinary proceedings the Attorney-General is not' a party as in a lis and after the decision, his duty ends. Lord Denning points this out clearly by saying that the Attorney-General in that case could not have been aggrieved by the order of the Deputy Judge if he had acquitted the delinquent advocate in that case The Attorney-General's interest was found by Lord Denning in relation to the Crown and the Colony and that too for the special reason that appeal court had denied that the Deputy Judge possessed jurisdictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trate. Now in disciplinary proceedings the advocate was not estopped from questioning the charge that be was guilty of corrupt practice. In a civil proceeding the decision of a criminal court is not res judicata. To give an example, if a person is involved in a traffic offence in which some one is injured he may in the criminal court receive a light sentence but if he is sued in a civil court for heavy damages he pan plead. and prove that he was not negligent or that accident was due to the contributory negligence of the defendant. The decision of the criminal court would not preclude him from raising this issue before the civil court. The advocate here explained that he was held guilty before the Magistrate in the circumstances in which he was placed. The. fact of his conviction, as well as his full statement bearing on his conduct were before the disciplinary committee of the State Bar Council. They had to choose between the two, that is to say, the result of a summary trial Without going into merits and proof of the misconduct. Having examined the advocate and seen the record, the disciplinary committee of the State Bar Council chose to accept the plea of the advocate and hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ateGeneral to the Bar Council of India was incompetent and the finding and order of the disciplinary committee of the said body ought to be set aside on that ground alone without our going into the facts of the case. Notice of this hearing was given to the Advocates-General and the Bar Councils of all the States as also the AttorneyGeneral of India and we have had the benefit of arguments advanced before us not only on of the Advocate-General for the State of Maharashtra but also' on behalf of the Bar Council of India, the Attorney-General of India and some of the Advocates-General of the States. The determination of this question depends on the interpretation of S. 37 of the Advocates Act, 1961 (hereinafter referred to as the Act') (1) Any person. aggrieved by an order of the disciplinary committee of. a State Bar Council made under section 35 may, within sixty days of the date of the communication of, the order to him, prefer an appeal to the Bar Council of India. (2) Every such appeal shall be heard-by the disciplinary committee of the. Bar Council of India which may pass such order thereon, as it deems fit. To put the matter in a nut-shell the question is, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als with conduct of advocates. The relevant provisions thereof are set out as under 35(1) 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. (2) The disciplinary committee of a State Bar Council, if it does not summarily reject the complaint. shall fix a date for the hearing of the case and shall cause a notice thereof to be given to the advocate concerned and to the Advocate-General of the State. (3) The disciplinary committee of a State Bar Council after giving the advocate concerned and the Advocate-General an opportunity of being heard, may make any of the following orders, namely: (a) dismiss the complaint or, where the proceedings were initiated at the instance of the State Bar Council, direct that the proceedings be filed; (b) reprimand the advocate; (c) suspend the advocate from practice for such period as it may deem fit; (d) remove the name of the advocate from the State roll of advocates. (4) . . . . . . (5) Where any notice is issued to the AdvocateGeneral under su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... explain his conduct or to inform the Advocate-General that it has rejected the complaint summarily. It is only when the disciplinary committee is satisfied that the complaint ought not to be rejected out of hand that it has to fix a date for the hearing of the case and give notice thereof to the advocate concerned and to the Advocate-General of the State. It is mandatory on the disciplinary committee to give such a notice to both. Sub-ss. (3) and (5) of s. 35 go to show that it is not incumbent on the Advocate-General to appear at the hearing and that it is within his discretion to appear either by himself or through another advocate of his choice and place his viewpoint before the disciplinary committee. He is not a party to the proceedings but he has a right to appear and to make submissions both on questions of fact and questions of law. S. 3 7 does not in terms lay down who can prefer an appeal from the order of the disciplinary committee of the State Bar Council. There can be no doubt that the advocate agianst whom an order is made would be a person aggrieved. The State Ba Council cannot be such a person as the order is made by itself acting through its disciplinary commit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ieved are ordin ary English words which are to have the ordinary meaning put upon them'. According to Halsbury's Laws of England (Third Edition, Vol. 5) page 29 foot-note h The expression is nowhere defined and must be construed by reference to the context of the enactment in which it appears and all the circumstances (1) 7 Q. B D. 465. Attempts have however from time to time been made to define the expression in various cases. In Ex parte Sidebotham In re Sidebotham(14 ch. D. 458 at 465.) it was observed by James, L.J. But the words Person aggrieved' do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made. A person aggrieved' must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something. The above definition of James, L.J. was described by Esher, M.R. in Ex Parte Official Receiver In Re Reed, Bowen Co.( as not an exhaustive definition . His Lordship added It is an affirmative definition of a person who may appeal, and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, and if the court thinks that the cancellation of the licence is not justified, it can restore the licence to the street trader. If the court of summary jurisdiction refuses to grant a licence, then the street trader is a person aggrieved, because his livelihood is affected, or an order is made directly affecting him. The case of Sevenoaks Urban District Council v. Twynam([9291] 2 K. B. 440 at 444.) was relied upon by counsel appearing for, the AdvocateGeneral of Maharashtra support his argument that even a person who had no proprietary or pecuniary interest in the subject matter of the litigation might be a person aggrieved so as to give him a right to appeal. The statute in this case was however worded very differently from the statutes which came up for consideration in the cases noted earlier. S. 68(1) of the Public Health Act, 1925 laid down that: Where for the purpose of relieving or preventing congestion of traffic it appears to the local authority to be necessary to provide within their district suitable parking places for vehicles then that authority may, subject to certain conditions, provide those parking places and might acquire land suitable for useas a pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a person may make an objection and is entitled to a decision upon it, and if the decision is adverse to him, he may, it he thinks fit and subject to the usual consequences, appeal from it to a petty sessional court, and so appealing, may, in consequence of other statutory provisions, appeal, if need be, to the court of quarter sessions. According to Avory J. There is no limit there [in sub-s. (3)] of the kind of person or the kind of objection which may be made. it proceeds that after so considering the objection, they are to give notice of their decision to the person by whom the objection was made, and any person who is aggrieved by such decision may appeal. I cannot help thinking that on the plain words of that statute it was intended to give a right of appeal to any person who has made an objection to the proposal and has received notice that objection has been overruled. In Ealing Corporation v. Jones([1959] 1 Q. B. 384 at 390.) Lord Parker C.J. remarked that it was easier to say what will not constitute a person aggrieved than it was to say what person aggrieved included. He observed that a person was not aggrieved when being a public body it had been frustrated in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Once he does so there is an end of the matter so far as he is concerned.He cannot have any grievance because the decision of the Bar Council is' against his submission or not to his liking. The question then arises as to whether any, duty is cast on the Advocate-General by reason of his position to question the decision of the Bar Council if he feels it in the general interest of the members of the Bar or a wider public to do so. Art. 165(2) of the Constitution epitomizes the functions and duties of the Advocate-General in the following words: It shall be the duty of the Advocate-General to give advice to the Government of the State upon such legal matters and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Governor and to discharge the functions conferred upon him by or under the Constitution or any other law for the time being in force.'. A notable instance of his statutory duties is furnished by Order XXVII-A of the Code of Civil Procedure. By the provisions of s. 91 of the Code of Civil Procedure no suit for a declaration and injunction in the case of a public nuisance can be instituted except by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Solicitor-General for England, and the Lord Advocate and Solicitor-General for Scotland. They are regarded as the heads of the Bar in their respective countries, and as such are referees on points of professional etiquette. The learned author goes on to note at p. 317 The Attorney-General represents the Crown in civil proceedings.in which it is specially concerned. His consent is necessary for the prosecution of certain offences, e.g. under the Official Secrets Acts. In criminal proceedings he or the Solicitor-General, or their deputies, prosecute in important cases. It is the practice for the Attorney-General to lead in treason and important constitutional cases. He may also file ex officio criminal information, though this procedure is now rarely used. He may stop the trial of an indictment by entering a none prosequi. He may also take over certain proceedings on the relation of private individuals (relator actions) e.g. public nuisance etc....... The Attorney-Generalls procedural privileges include the right to demand a trial at Bar privilege i.e. now, before a Divisional Court), and the right to choose the venue for any civil or criminal proceedings in which the Cro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of a District Judge and it also might. of its own motion refer any case where it had reason to believe. that any advocate had been so guilty. Under s. 11 it was the duty of a committee of the Bar Council to inquire into a complaint made under s. 10, Under s. 12(2) of the Act the finding of a Tribunal on an inquiry referred to the Bar Council was to be forwarded to the High Court through the Bar Council and the finding of a District Court on such inquiry was to be forwarded to the High Court direct with a copy to the, Bar Council. S. 12(3) of the Act contained a provision somewhat similar to s. 35(3) of the Act of 1961. The hearing was however to take place before the High Court, which I had to give notice of the date fixed for the purpose to the advocate concerned, to the Bar Council and to the Advocate-General and to afford them an opportunity of being heard before orders were passed in the case. Under the Act of 1926 the Advocate-General appeared on the scene only after the Bar Council had recorded its finding. The significant departure in the Act of 1961 from the analogous provision of the Act of 1926 is that the Advocate-General is given notice of hearing of the case. By its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Appeal the power to strike the name of a legal practitioner off the roll was not a judicial power. The Attorney-General of the Gambia appealed to Her Majesty in Council. The question of the maintainability of the appeal-was also canvassed before the Board. With regard to inquiries into the conduct of barristers and solicitors in the Crown colonies Lord Denning who delivered the judgment of the Privy Council, said by the common, law of England the Judges have the right to determine who shall be admitted to practice as barristers and solicitors, and as incidental thereto the judges have the right to suspend or prohibit from practice. In England this power has for a very long time been delegated, so far as barristers are concerned, to the Inns of Court; and, for a much shorter time, so far as solicitors are concerned, to the Law Society. In the colonies the Judges have retained the power in their own hands, His Lordship went on to remark at p. 631 When the judges exercise this power to suspend or expel, they do not decide a suit between the parties. There is no prosecutor as' in a criminal case, nor any plaintiff as in a civil suit. The judges usually act on their own initia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not the guardian of the public interest in India in any matter except as provided for in the statutes. He like any other person may draw the attention of the Bar Council to any misconduct of an advocate which according to him merits disciplinary action. The Act of 1961 provides for notice to be given to him of all such proceedings and gives him a right to appear at the hearing but once the hearing is over and a finding recorded he has done his duty and cannot be said to be aggrieved within the meaning of the expression used in s. 37. It is only because the Attorney-General for the Gambia had an interest in seeing that the Court of Appeal did not reverse the decision of the Deputy Judge on a ground which went to the jurisdiction of the Judge or was otherwise a point in which the public interest was concerned that the Board held that he was a person aggrieved. Our attention was drawn to a decision of the Judicial Committee in Advocate-General Bombay v. Phiroz Barucha(37 B.L.R. 722.) where the Privy Council entertained an appeal by the AdvocateGeneral of Bombay against an advocate who had been found by the High Court of Bombay to have been guilty misconduct but against whom no dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Judges of the High Court. It appears that the Advocate-General of Maharashtra felt in this case that the disciplinary committee of the Maharashtra Bar Council had gone wrong and that there was a question of principle involved as regards the effect of a conviction of an Indian advocate of an offence recognised by all civilised countries as an offence involving moral turpitude and that, the question also related to the requirements of natural justice in a criminal court. Every day courts of law are called upon to decide questions of law inter-partes which may be of general importance to the public. The AdvocateGeneral cannot prefer an appeal merely because the question is one of considerable importance to the public inasmuch as he is not a party to it and he has no locus standi to do so even in a case where the statute only gives him an opportunity of appearing at a hearing and making his submissions. A decision by the disciplinary committee cannot necessarily be said to raise a point-of public interest merely because the Advocate-General feels that it is erroneous or that he himself would have arrived at a different conclusion. That at best is his personal opinion as rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ber 26, 1969 overruled the preliminary objection and held that the Advocate-General was competent to maintain the appeal under s. 37(1). By the same order the Appellate Committee disagreed with the findings of the Committee and found the appellant guilty of professional misconduct and ordered his suspension from practice for a period of one year. The appellant was also directed to pay the costs of the proceedings. It is this order of the Appellate Committee that is the subject of the appeal before us. As stated earlier, we have heard arguments only on the question of the maintainability of the appeal at the instance of the Advocate-General of Maharashtra before the Bar Council of India. As the question raised was a fairly important one, notice had been issued to the AttorneyGeneral of India, the Bar Council of India, the AdvocatesGeneral and the Bar-Councils of the States. AdvocatesGeneral of most of the States were represented by counsel. The Attorney-General of India, the Bar Council of India as well as. the Bar Council of Maharashtra were also represented by counsel before us. The question posed for our consideration is whether the, Advocate-General of a State comes within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal Cases 617.) to the effect that the Attorney-General in a colony represents the Crown as the guardian of the public interest and that it is his duty to bring before the Judge any misconduct of a barrister or solicitor which is of sufficient gravity to warrant disciplinary action and that if the Judge acquits the practitioner of misconduct, no appeal is open to the Attorney-General, who has done his duty and is not aggrieved. But if, on the other hand, a Court of Appeal reverses the decision holding a practitioner guilty of professional misconduct, on a ground which goes to the jurisdiction of the Judge or is otherwise a point in which the public interest is concerned, the Attorney-General is a perso n aggrieved' by the decision and can properly petition Her Majesty for special leave to appeal. Drawing support from these observations Mr. Daphtary urged that in this case, the Committee had acquitted the appellant and the Advocate-General having appeared through counsel before the Committee has done his duty, and as such he cannot be considered to be aggrieved. No question of jurisdiction of the Committee or any point in which the public interest is concerned arose for decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing that the integrity and honesty of the legal profession are maintained and that proper decisions are given in disciplinary proceedings. There may be cases of inadequate punishment or even harsh punishment being awarded by the Committee. The Advocate-General in proper cases can bring up such matters before the Bar Council of India. Mr. Setalvad further pointed out that there is no restriction placed in s. 37 denying the right of the Advocate-General to file an appeal against the orders of the Committee. Having due regard to the scheme of the Act and particularly of ss. 35 and 37, the Advocate-General comes within any person aggrieved and hence he was competent to file the appeal. I have given careful consideration to the various aspects placed before us by all the learned counsel and I am of the view that the decision of the Appellate' Committee holding that the appeal filed by the Advocate-General of Maharashtra was competent is correct. I am further of the view that the expression any person aggrieved in s. 37 will have to be interpreted in the context in which it appears, having due regard to the provisions of the Act and its scheme. Considered in this manner, it h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so further obligatory to give the Advocate-General an opportunity of being heard before orders. were passed. Under s. 12(4) the High Court could pass final orders or refer the case back for further inquiry., Under sub-s. (5) the High Court had also power, when passing final orders to give directions regarding payment of costs. I am only referring to the material provisions of the Bar Councils Act to show that the High Court was then the disciplinary authority and the function of the Committee of the Bar Council was only to submit a finding after conducting an inquiry as directed by the High Court. It is however to be noted that the Advocate-General then was not associated in the inquiry proceedings before the Tribunal of the Bar Council; but he-was entitled to be given notice of the date fixed for hearing and also to be heard in the proceedings before the High Court after receipt of the finding submitted by the Committee of the Bar Council. Those provisions clearly establish the important position occupied by the Advocate-General and recognised by the Bar Councils Act. The scheme is slightly different when we come to the Act. The State Bar Councils and the Bar Council of India have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral of the State. (3) The disciplinary committee of a State Bar Council after giving the advocate concerned and the Advocate-General an opportunity of being heard, may make any of the following orders, namely (a) dismiss the complaint or, where the proceedings were initiated at the instance of the State Bar Council, direct that the proceedings be filed; (b) reprimand the advocate; (c) suspend the advocate from practice for such period as it may deem fit; (d) remove the name of the advocate from the State roll of advocates. (4) Where an advocate is suspended from practice under clause (c) of sub-section (3), he shall, during the period of suspension, be debarred from practicing, in any court or before any authority or person in India. (5) Where any notice is issued to the Advocate-General under sub-section (2), the Advocate-General may appear before the disciplinary committee of the State Bar Council either in person or through any advocate appearing on his behalf. Similarly s. 36(1) deals with the disciplinary powers of the Bar Council of India. Sub-section (2) confers powers on the Appellate Committee of itsown motion to withdraw for inquiry for itself any di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Crown, being the guardian of public interest, as stated by Lord Denning in Attorney-General of the Gambia v. Pierree Sarr N'Jie([1961] 1 A. C. 617.) be brought in for interpreting S. 37 of the Act, as we are only concerned to find out the right given to the Advocate-General by the Act. So far as that is concerned, I am satisfied that the Act has given due recognition to his status by virtue of his being the highest Law in the St-ate, as the Advocate-General and who may be trusted to place a disinterested and dispassionate view before the Committee to enable it to come to a proper decision having due regard to the Advocate concerned, as well as the entire legal profession to which he belongs. Apart from his being under s'. 3 (2) (a) an exofficio member of the State Bar Council, s. 23 (4) gives him a right of pre-audience over all other advocates. Coming to s. 35, read with S. 37, which has been extracted earlier, the main features that emerge therefrom are as follows (1), The State Bar Council can suo moto or on receipt of a complaint, when it has reason to believe that an advocate has been guilty of professional or other misconduct refer the case to its committee. (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Committee and that the Advocate-General is a party in the sense that expression is ordinarily understood in law. The advocate concerned win be interested in disputing the allegations made or charges levelled against him and he will be entitled to lead evidence in support of his plea. If there is a complainant, he will of course lead evidence to support his case. The AdvocateGeneral, on the other hand, is also entitled to place before the Committee all aspects of the matter including facts that may be in favour of the advocate whose conduct is under inquiry. This is because of the important position occupied by him. It may be that the Advocate-General may not be able to appear personally and participate in all the disciplinary proceedings and that is why provision has been made in s. 35(5) enabling the Advocate-General to appear either in person or through any advocate appearing on his behalf. Just as the Advocate concerned will have an opportunity of examining his witnesses and cross-examining the witnesses produced against him, the Advocate-General or the counsel appearing on his behalf will also have a right of crossexamining the witnesses produced in the case so as to elicit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llege an infringement of any legal rights of his own is of no consequence. The particular preceding in which the Advocate-General is given a right to participate relates to an inquiry into the allegations of misconduct against an advocate. Upon a fair construction of S. 37 read with S. 35 of the Act, the Advocate-General, in my opinion is any person aggrieved and as such was entitled to file the appeal under S. 37 (1 ) against the order passed by the Committee. The same reasoning will apply to the Attorney-General of India under S. 38. (1) (Civil Appeal No. 877 of 1968 decided on 8-10-1968). It may be that in a particular case the Advocate-General may feel that the findings arrived at in favour of the advocate by the Committee is not justified by the evidence and that decision will have to be reconsidered by the Appellate Committee; or it may even be that in a particular case the sentence imposed by the Committee may not be commensurate with the guilt of the advocate; or it may also be that the sentence imposed on an, advocate by the Committee is very harsh or the finding of guilt is not correct. Under such and similar circumstances in the interests of the Advocate and the leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. This,in my view is really begging the question. Why did the Legislature then bring in the Advocate-General at all and why has it associated himin disciplinary proceedings from the very beginning of the inquiry ? That and other circumstances, already pointed out by me, bring him under s. 37 as any person aggrieved. Mr. Daphtary then urged that if the Advocate-General was expected to safeguard the interest of the Advocate and the legal profession by seeing that proper decisions are given by the Committee, that purpose is not served when powers have been given to the Committee under s. 35(2) to summarily reject a complaint and the Advocate-General will have no remedy against such rejection. The short answer to this contention is that a right of appeal must be specifically conferred by statute. Section 37(1) gives a right of appeal against an order passed under s. 35. The orders which could be passed after hearing the case are enumerated in clauses (a) to (d) of S. 35 (3). It is not necessary for me to express any opinion whether an order summarily rejecting a complaint can also be the subject of an appeal under S. 37(1) as that section is in very wide terms. In any event ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annoyed at the decision. In the view that I take that the expression person aggrieved' in s. 37 of the Act has to be interpreted in the light of the provisions of and scheme of the Act as well as the context in which those expressions appear. I do not think it necessary to consider in great detail those decisions which have been rendered on different statutes. The decision in The Municipal Corporation of the City of Ahmedabad v. Chandulat Shamaldas Patel and others((Civil Appeal No. 1716 of 1967 decided on 1-8-1970)) referred to by Mr. Daphtary, in my opinion, does not assist the appellant. In that decision it was held that when certain notifications issued under the Land Acquisition Act were set aside by the High Court, the Municipal Corporation, on whose behalf the ;acquisition was being made by the Government, cannot be considerd to be a person aggrieved' entitled to challenge the order of the High Court. An additional reason has also been given against the competency of the appeal that even an order for costs has not been passed against the Municipal Corporation. That decision was rendered on the scheme of the Land Acquisition Act, and so does not help the appellant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal set aside the order of the Deputy Judge. In the first instance the Attorney-General sought leave to appeal to Her Majesty in Council from the West African Court of Appeal under s. 5 of the West African (Appeal to the Privy Council) Order in Council. 1949, which is as follows Applications to the, court for leave to appeal shall be made by motion or petition within 21 days from the date of the judgment to be appealed from, and the applicant shall give the opposite party notice of his intended application. The West African Court of Appeal declined to grant leave to appeal to the Attorney-General on the ground that notice-had not given within the time mentioned in the above order to Mr. X. The Attorney-General made an application to the Judicial Committee for special leave to appeal from the two orders mentioned above of the West African Court of Appeal. That petition was filed under s. 31 of the West African (Appeal to Privy Council) Order in Council, 1949, which runs as follows Nothing in this order contained shall be deemed to interfere with the right of His Majesty upon the humble petition of any person aggri eved by any judgment of the Court to admit his appeal theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of misconduct no appeal is open to the Attorney-General. This view, with respect, is correct because S. 14 does not give a right of appeal to the Attorney-General. Lord Denning, no doubt, has further stated that the Judicial Committee has rejected the preliminary objection in view of the fact that it was of the opinion that in the case before it a question of jurisdiction or a point of public interest is involved and therefore, the Attorney-General is a person aggrieved. I have already indicated that-there are no restrictions or limitations imposed in S. 37 of the Act giving a right of appea l only to the advocate who may have been found guilty. On the other hand, the words any person aggrieved in S. 37 are very wide, and as observed by Lord Denning in the opening part of the above extract these words should not be subjected to a restrictive interpretation. In the view that I take that the Advocate-General has an unqualified right of appeal under s. 37(1) I do not think it necessary either to refer to Art. 165 of the Constitution nor do I think it necessary to consider the further question whether the appeal filed by the Advocate-General before the Bar Council of India relates t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 37 of the Act. The same words also occur in section 38 of the Act. Mr. Daphtary on behalf of the appellant contended first that the Advocate General did not represent public interest and could not therefore be said to be a person aggrieved by an order of the Disciplinary Committee. Secondly, that the provisions in section 35 of the Act that the Advocate General was entitled to a notice from the Disciplinary Committee of the date of hearing and the provision that the Advocate General was entitled to be heard by the Disciplinary Committee could not have the effect of making the Advocate General a party, and, thirdly, the Advocate General was an impartial person and his duty would end by making submissions, if any, before the Disciplinary Committee and he would not be a person aggrieved either by an order of dismissal of a complaint against the Advocate or by any order passed against the Advocate. Notices were given to the Attorney General and the Advocates General of different States in view of the importance of the question involved in this appeal. Mr. V. S. Desai on behalf of the Advocate General of Maharashtra, Mr. Setalvad on behalf of the Bar Council of India, Dr. Seyied M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng, or wrongfully affected his title to something. Lord Hewart, C.J., in Sevenoaks case(1) said the problem is not what is the meaning of the expression person aggrieved' in one or dozen statutes but what is its meaning in this part of the Statute . In that case the relevant provision of the Public Health Act conferred a power on a local authority to provide within that district suitable parking place for vehicles. The statute further in that case contemplated a notice of the proposal to acquire land for using it as a parking place and objections, if any. to such proposal. When objections were made, the local authority would have to consider them. In the Sevenoaks case the Urban Council considered the objection of a rate payer and thereafter proceeded with the scheme of the parking place. Lord Hewart, C.J. in giving meaning to the words person aggrieved' in that case said that first a person was an author of an objection, and, secondly, he was aggrieved by the refusal of his objection. It was held that a special individual right was infringed. In the Sevenoaks([1929] 2 K.B. 404.) case there was neither a pecuniary nor a proprietary grievance. The action of the local author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, the High Court if it did not summarily reject the complaint referred the case for enquiry to the Bar Council or after consultation with the Bar Council to the Court of a District Judge and the High Court might of its own motion refer any case in which it had reason to believe that any such Advocate had been so guilty. If any case was referred under the Bar Councils Act, 1926 for enquiry, the case was to be enquired into by the Committee of the Bar Council which was called the Tribunal. The Tribunal consisted of not less than three and not more than five members of the Bar Council appointed for that purpose by the Chief Justice or Chief Judge of the High Court, and one of the members so appointed was the President of the Tribunal. The finding of a Tribunal was forwarded to the High Court through the Bar Council and the finding of a District Court was to be forwarded direct to the High Court with a copy to the Bar Council. On receipt of the finding the High Court was to fix a date for the hearing of the case and notice of the date so fixed was to be given to the Advocate concerned and to the Bar Council and to the Advocate General. The High Court was also required under the statu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court by an Advocate against whom an order of suspension was passed by the High Court under section 12 of the Bar Councils Act, the proper respondents would be the complainant, if any, the Bar Council and the Advocate General of the State concerned and not the High Court. The appeal to this Court in Bhataraju's case(2) was by special leave. This Court held that the Advocate General, the Bar Council and the complainant would be parties to the appeal on the ground that notices under the Bar Councils Act had been issued top those persons. The decisions of this Court and the Judicial Committee both indicate, that the Advocate General under the Bar Councils Act had locus standi in making an application for leave to appeal and being a respondent to an appeal preferred by the Advocate. The position held by the High Court under the Bar Councils Act, 1926 is now occupied by the Bar Council under the Advocates Act. There are State Bar Councils and there is also a Bar Council of India. Every Bar Council is a body corporate. The functions of the State Bar Council are inter alia to admit persons as advocates on its roll; to prepare and maintain such roll; to entertain and determine ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appear at all. But when the Advocate General does appear, he does so by virtue of the statutory rights and powers conferred on him. It is, therefore, necessary to know as to why notice under the Act is given to the Advocate General and why he is to be heard before an order is made by the Disciplinary Committee. The Judicial Committee in the Gambian case found that the name of N'Jie was struck off the roll of barristers and solicitors of the Supreme Court of Gambia by an order of Abbott, J., Deputy Judge of the Supreme Court in the Colony of Gambia. The Deputy Judge had jurisdiction to represent the Chief Justice in the exercise of his judicial powers. The power to strike the name of the legal practitioner off the roll was held by the Judicial Committee not to be a judicial power but an administrative one of the Chief Justice of the Supreme Court of Gambia. Therefore, the order of Abbott, J. was without jurisdiction. The West African Court of Appeal under those circumstances set aside the order of Abbott, J. The Attorney General of Gambia thereupon preferred an appeal to the Judicial Committee. An appeal to the Privy Council lay under section 31 of the West African (Appeal to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cates Act gives special preeminence to the Attorney General and the Advocate General in disciplinary proceedings because it is not an attempt of the Disciplinary Committee to redress the grievance of an individual complainant but to find out whether there is any breach of professional standard and conduct. The high tradition, dignity and purity of the Bar is to be maintained. The Attorney General and the Advocate General are heard because they are heads of their respective Bar and the proceedings affect discipline and dignity of the Bar and touch the professional conduct of an Advocate. They are not parties to a lis'. They have no personal or pecuniary or proprietary interest in the matter. It is manifest that their locus standi and interest is based on professional code of conduct and for the purpose of upholding the purity of the Bar and preservation of correct standards and norms in the profession. The Attorney General and the Advocates General will uphold the professional discipline, dignity and decorum and that is why no order is made by the Disciplinary Committee without giving them an opportunity of being heard. The issue before the Disciplinary Committee is whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be merely neutral observers before the Disciplinary Committee and they would have no duty to perform. They would have to express their views one way or the other. It is true that they would be completely free from personal favour or disfavour in these matters touching the professional conduct. Their presence before the Disciplinary Committee is explicable only on the ground of adhering to the correct professional code. It would therefore be open to them Attorney-General and the Advocate General to take the view that in a matter of sufficient gravity a completely inadequate punishment would not be in public interest of the profession. Similarly,if the punishment is severe in a case, which did not merit such.action, the Attorney General and the Advocate General would be persons aggrieved to have it corrected. To accede to the contention of Mr. Daphtary that the words, 'person aggrieved' refer only to Advocates would be misreading the provisions. The words person aggrieved' will be referable to,the Advocate concerned, the complainant and the Attorney General or the Advocate General as the case may be. The Attorney General and the Advocate General will be persons aggr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
