Judgment:
1. This appeal is directed against the Judgment and order dated 2-4-94 rendered by the Disciplinary Committee, Indore Bench, Bar Council of Madhya Pradesh in complaint Case No. 67/1992 wherein the SAN AD of the appellant has been suspended for a period of 7 years on the grounds of professional misconduct.
2. The gravamen of the charge against the present appellant is that one Subbash Jain brother of the respondent complainant is a convict. He has been convicted u/s 302 IPC and is sentenced 1,0 undergo life imprisonment. Thereafter he applied under section 2 01 the Madhya Pradesh Prisoners' Release on Probation Act', 1954 and the matter came up for hearing before the Hon'ble High Court of Madhya Pradesh, Indore Bench and the Hon'ble High Court by its order dated 8-1-1992 dismissed M.P. No. 14/92 with the following observations:-
"By this petition under article 226 of the Constitution of India the petitioner seeks to virtually challenge an order dated 30-10-91 passed in N.P. No. 87/1991 cancelling grant of bail to the petitioner in case his release u/s 2 of the M.P. Prisoner's Release on Probation Act, 1954".
"This petition is wholly misconceived. Right to be released on probation is discretionary. The charge against the petitioner is that he procured his release by producing a forged release order, which speaks of his past antecedents and conduct."
3. The material part of the case of the respondent complainant in his complaint before the State Bar Council was that the respondent engaged the present appellant as advocate for preferring Special Leave Petition against the order dated 8-1-1992 of the High Court of Madhya Pradesh passed in M.P. No. 14/1992 and that the respondent advocate in turn demanded Rs. 15,000 towards his professional fees and expenses from the respondent. It was further alleged by the respondent complainant that the amount .of Ra. 15,000 as asked for by the appellant was paid to the appellant and the papers were also handed over to the appellant. It was further the case of the respondent' ;hat after repeated reminders by the respondent and consequent Assurances by the appellant, the respondent was assured and was informed that show cause notice had been issued by the Supreme Court in the Special Leave Petition got filed by him- before the Supreme Court."It was further the case of the respondent that hereafter he continuously demanded the certified copy of the order which was claimed to have been passed by the Hon'ble Supreme court. According to the respondent, he received one Regd. A.D. envelope containing certain documents which included the letter of appellant, copy of the Special Leave Petition and the order alleged to have been passed by the Supreme Court. All these documents have been exhibited and are marked as.C-1, C-2, C-3 and C-4 respectively. The respondent on perusing these documents prima facie suspected them to be forged and entertained serious doubts about the genuineness of these documents and after due verification it was found that all the. documents were forged and no such order was passed by the Supreme Court inasmuch as no Special leave Petition was actually filed in the Supreme Court. According1 to the respondent, he paid Rs. 15,000 to the present appellant for filing Special Leave Petition in the Supreme Court as mentioned earlier and that papers received by him. in that connection were forged and not genuine and that enquiry was required to be taken against the appellant. The respondent filed complaint supported by an Affidavit u/s 35 of the Advocates Act, 1961 praying that the Sanad of the appellant be suspended or the name of the appellant be removed from the State Roll of Advocates on the ground of professional misconduct.
4. The complaint u/s 35 of tag Advocates Act, 1961 (hereinafter be referred to as the "Act" for the sake of brevity) was received by the State Bar Council on 11th November, 1992. The State Bar Council referred the aforesaid compliant to its-Disciplinary Committee by Resolution No. 70/1993 dated 23rd January, 1993. Notice dates 28-2-1993 was issued to the parties and the first date fixed for hearing was 8th April, 1993. The case was eventually posted for framing of issues and accordingly on 26-8-1993 the following issues which are on page 457 of the file of the State Bar Council were framed by the Disciplinary Committee:-
(a) Whether the respondent advocate had been engaged by the petitioner for filing of a S.L.P. before the Supreme Court against the order in M.P. 14/92 dated 8-1-92 and for this purpose he paid sum of Rs. 15,000 to the respondent-advocate towards his fees?
(b) Whether the alleged copy of SLP and copy of Supreme Court order was sent by the respondent to the complainant?
(c) Whether the copy of the SLP order and petition sent by the respondent advocate was not genuine and a fake one?
(d) Whether on proof of the above allegations, the respondent advocate is guilty of proof of professional misconduct?
5. Thereafter the evidence was recorded and after appreciation of, evidence the Disciplinary Committee of the State Bar Council though it fit to answer all the four issues in the affirmative and came to the conclusion that the appellant is guilty of professional misconduct and passed an order on 2-4-94 to the effect that the SANAD of appellant shall stand suspended for a period of 7 years; however, in the event of respondent paying Rs. 15,000/- with interest at bank rate to be calculated from the date of receipt to the respondent and on a certificate of the same by the Bar Council of Madhya Pradesh the SANAD of the appellant would only remain suspended for a period of five years.
6. Thereafter, this appeal came to be preferred challenging the order of the State Bar Council punishing the appellant for professional misconduct. At .the time of hearing of this appeal, learned counsel appearing for the appellant raised a preliminary contention that the Disciplinary Committee of the State Bar Council passed the impugned judgment and order beyond the period of one year as contemplated u/s 36-B of the Act and the impugned Order was clearly vitiated having been passed beyond the period of limitation from the date of reference on the compliant to: the Disciplinary Committee of the State Bar Council. Further in support of this submission, reliance is sought, to be placed on Ike-Division Bench decision of the Madras High Court reported in 1986(2) Madras Law Journal 362, the photostat copy of which is produced on record but the present appellant for ready reference. After going through the relevant dates we find that the aforesaid submission of learned counsel appearing for the appellant is well founded. We asked the council to tell us whether this contention was taken by the present appellant before the State Bar Council and we also enquired from the counsel as to whether this ground had been taken in the memo of Appeal. We were informed by the counsel and we also find that this contention was not taken before the State Bar Council and the appeal memo is also silent as far as this ground is concerned.-However, since this issue is a pure question of law and goes to the root of the matter we have permitted the learned counsel to take up this contention and we feel that without entering into the merits of the 196 case, we can dispose of this appeal on a short, but substantial question of law as to whether the impugned judgment and order dated 2-4-1994 of the Disciplinary Committee of the State Bar Council is vitiated on the ground that it is passed beyond the period of limitation of one year envisaged under section 36B(1) of the Act. For the purpose of deciding this issue it would be expedient to place certain relevant date with regard to the dates of the proceedings. It is pertinent to note that the State Bar Council actually received the complaint on 11th November, 1992. The State Bar Council referred the complaint to its Disciplinary Committee u/s'35(1) of the Act on 23rd January, 1993 by its Resolution No. 70/1993 dated 23-l-1993\ This resolution of the State Bar Council is on record of its file, at page 39. Notice was issued to the parties on 28th February, 1993 and the first date fixed for hearing was 8th April, 1993. The impugned order was passed by the State Bar Council on 2nd April, 1994. These dates emerging from, the record and proceedings of the matter before the Disciplinary Committee of the State Bar Council can hardly be disputed.
7. The learned counsel appearing on behalf of the appellant has contended that when Section 36B(1) provides that the proceedings shall be concluded within a period of one year from the date of receipt of the complaint of the date of initiation of proceedings at the instance of the State Bar Council as the case may be, then the complaint having been received by the Bar Council on 11th November, 1992 and the date on which the State Bar Council referred the complaint to its Disciplinary Committee on 23rd January, 1993 by Resolution number 70/1993 the disposal of that complaint by the impugned order dated 2nd April,: 1994 is admittedly beyond the period' of one year. Therefore, according to the learned counsel for the appellant, the Disciplinary Committee of the State Bar Council exercised jurisdiction which it was not entitled to act inasmuch as the proceedings automatically stood transferred to the Bar Council of India since it was not concluded within the stipulated period before the Disciplinary Committee of the State Bar Council. In this context the learned counsel for the appellant has also invited our attention to the provisions of Rule 17(2) of the Bar Council of India Rules on which' reliance is placed. Rule 17(2) of the Rules framed u/s 49(1) (f) of the Act contained in Part VII, pertaining to disciplinary Proceedings and Review, Chapter I, Section - A reads as underlie - 17(1) XXX XXX XXX
(2) The date of receipt of the complaint or the date of the initiation of the proceedings at the instance of the State Bar Council shall be the date on which the State Bar Council refers the case for disposal to its disciplinary Committee U/s 35 (1).
(3) XXX XXX XXX
(underline supplied for emphasis)
Rule 17(2) of the Bar Council of India clarifies the connotation of the terms "the date of receipt of the complaint or the date of initiation of proceedings" and it provides that the said date shall be on which the State Bar Council refers the case for disposal to its Disciplinary Committee u/s 35(1) of the Act. As stated earlier, in the present case, the State Bar Council referred the complaint to its D.C. for disposal on 23rd January, 1993 and the order ultimately came to be passed on 2nd April, 1994, which is clearly and undisputedly beyond the period of limitation as prescribed u/s 36-B(l) of the Act vitiating the impugned order of D.C. of the State Bar Council. The provisions of section 36-B(l) of the Act read with Rule 17(2) of the Bar Council of India rules clearly show that where the matter is. not decided by the D.C. of the State Bar Council within the period of one year, the order made by it is vitiated, and the proceedings get automatically and statutorily transferred to the Bar Council of India in view of the mandatory words or language of Section 36-B of the Act .and the. Bar Council of India is required to deal with these proceedings as if it is-a proceedings u/s 36-:B(2) of the Act. We are of the view that in. the present case as the matter was decided by the D.C. of the State Bar. Council beyond the period of one year as prescribed u/s 36^ of the Act, the impugned order passed by the Disciplinary Committee of the State's Bar Council has overstepped and transgressed the limitation prescribed by Section 36-B of the Act. In view that we are taking, we are fortified by the decision of Madras High Court in the case of Mohd. Mustafa K.A v. Bar Council of Tamil Nadu reported in 1986(2) Madras Law Journal 362 (DB) the photostat copy of which is produced by the appellant on record of the case before us. On the facts and circumstances of the case, we hold that .the D.C. of the State Bar Council having decided the matter beyond period of one year prescribed u/s 36-B of the Act, the impugned order, dated 2-4-1994, passed by the D.C. of the State Bar Council is vitiated and is liable to be set aside.
8. The question now is. what should be further; course insofar as the complaint is concerned, section 36-B of the Act itself, provides that, if the State Bar Council does not decide the complaint within the period of one year then such proceedings shall stand transferred to the Bar Council of India, 'and the Bar Council of India may dispose of the same as if it were a proceeding withdrawn for inquiry under sub-section (2) of section.36 of the Act. The natural consequence of holding that the impugned order of the State Bar Council is vitiated, inasmuch as the prescribed period of one year is over and since the complaint is not disposed of by the D.C. of the State, Bar Council within the prescribed period is that the proceeding shall stand transferred to the Bar Council of India and the proceedings must obviously be treated as pending. Having regard to the mandatory words of section 36-B of the Act, the proceedings must now stand automatically transferred to the Bar Council of India and are required to be proceeded with disposed of in accordance with law by the Bar Council of India. It cannot be gainsaid that the proceeding before the Bar Council of India is now the original proceeding awaiting disposal.
9. It may be mentioned that the D.C. of the State Bar Council has already recorded evidence, portion of which falls within the prescribed period of one year u/s 36-B(l)' of the Act. whereas some portion of which was recorded after4he statutory period of one year was over. It will be for the D.C. of the Bar Council of India to consider after hearing the parties whether it would prefer to act on the evidence already recorded or whether the parties' would desire to give any other or additional evidence before the D.C. of the Bar Council of India.
10. In the result the following order? is, therefore, passed:-
11. The appeal is partly allowed. The impugned order dated 2-4-1994 of the D.C. Indore Bench, Bar Council of Madhya Pradesh passed in complaint case no. 67/1992 is hereby quashed and set aside. The proceedings of complaint case No. 67/1992 stand-transferred to the Bar Council of India and the Bar Council of India will now proceed further, in accordance with law. The parties be accordingly informed about this order. There snail be no order as to costs.