a Vs. r - Court Judgment

Excerpt:
[a. p. bhangale, j.] - indian penal code (ipc) - sections 302 read with 34 - punishment for murder - acts done by several persons in furtherance of common intention --applicant is brother of deceased anjali who has filed present revision application. heard learned counsel for applicant and learned counsel for respondents no. 2 to 6. learned counsel for the applicant contends that deceased anjali suffered cruelty at the hands of her inlaws which led to her death. learned counsel for the applicant took me through evidence on record and contended that the impugned judgment and order suffers from infirmity and the prosecution ought to have resulted into conviction of the accused. learned counsel for accused/respondents no. 2 to 6 has supported the impugned judgment and order and he contends.....this is an interesting matter in which the parties were fighting .on preliminaries rather than going deep into the issues involved. the matter involved a complaint lodged with the bar council of tamil nadu by the present appellant to the effect that certain applications in the form of complaints addressed to various authorities by the respondent amounted to "other" misconduct on the part of the respondent. when the matter was before the state bar council, it passed a resolution to the effect that there was prima face case of misconduct and therefore it was placed before a committee for the final adjudication. before the d.c. of the state bar council a preliminary issue was raised by the respondent that there was no nexus or proximity in his standing as a lawyer and the application made.....

Judgment:
This is an interesting matter in which the parties were fighting .on preliminaries rather than going deep into the issues involved. The matter involved a complaint lodged with the Bar Council of Tamil Nadu by the present appellant to the effect that certain applications in the form of complaints addressed to various authorities by the respondent amounted to "other" misconduct on the part of the respondent. When the matter was before the State Bar Council, it passed a resolution to the effect that there was prima face case of misconduct and therefore it was placed before a Committee for the final adjudication. Before the D.C. of the State Bar Council a preliminary issue was raised by the respondent that there was no nexus or proximity in his standing as a lawyer and the application made by him to various authorities and therefore the Committee could not go into the merit being sans jurisdiction. The point was upheld by the committee and by its order dated 10-8-1996 it dismissed the complaint. On that date when the parties were called twice, the complainant was found the absent as on earlier dates also. Though a vakalath had been filed on behalf of the complainant, no lawyer was present before the Committee on 10-8-96. The preliminary objection had been filed as early as on 26-4-1996. And a copy of the same ought to have been taken by the lawyer on behalf of the complainant. When a lawyer had filed his vakalath, it was his bounden duty to attend to the case of his client an follow the dates with vigilance. It was neither the fault of the committee nor of the respondent if no notice was taken of the preliminary objection raised on 26-4-199.6 by the complainant's side. On this scenario, the committee heard the advocate for the respondent on 10-8-96 on the point of preliminary objection. While the said advocate was concluding his argument Sri N.Balasubramaniam, Advocate, Madras, entered the committee hall and presented a vakalath which was not in proper form. The committee requested him to make his submission on the preliminary issue after rectifying the vakalath. But Sri N. Balasubramaniam refused to argue on the ground that he had been engaged only on 5-8-1996 and was not ready with the brief. The Committee brought to his notice the facts that the matter was pending fire for a long time and that they would not allow any - protraction. Sri Balasubramaniam said that he would apply for adjournment, which he did but the committee rejected the sissified ass it felt that the complainant was trying to prolong the matter. Earlier to that on 27-7-96 the case was fixed and on that day the complainant and his lawyer was absent and therefore fresh notices were again ordered to be sent to the complainant. All this information could be culled out from the proceedings maintained by the said committee. It was contended by Sri R.Swaminathan,. who appeared for the complainant before us that he was not aware of the preliminary objection and hence he wanted time. This happened on 17-5-1997. We asked the respondent's lawyer to furnish a copy of the preliminary objection to Sri Swaminathan. Accordingly the copy which was kept on record for the complainant and which was not so far collected by him was given to his lawyer in his presence, on 17-5-97. It was agreed that the matter would be finally argued the next day i.e. 18-5-97. Accordingly the parties were heard today through their counsel. Sri D.V.P.Raja, the complainant-was also present. It was contended by Sri Swaminathan that the Bar Council of Tamil Nadu, having passed a resolution that there was a prima face case against the respondent, its D.C. could not have in law dismissed the said same complaint, without, hearing it on merits. It was simultaneously argued that though the respondent was called upon to give his written say on the. complaint, he never filed it and hence the D.C could not have dismissed the complaint on a preliminary issue. We are not impressed by both these arguments. Merely because the Bar Council of Tamil Nadu passed a resolution that there was a prima face case to be enquired into by D.C. does not made the said committee powerless to consider the matter on the various issues raised before it even of a preliminary nature. An analogy could be drawn from criminal prosecution. Merely because a prosecuting agency comes to the conclusion that there is evidence which would be sufficient to file a charge sheet/against a. suspect does not mean that the .trial court cannot uphold the objection raised at preliminary stage, either: to its jurisdiction or the maintainability of such a prosecution and thereby discharged the accused. We are of the opinion that when the Bar Council of Tamil Nadu passed the resolution holding a prima facie case against the respondent, it did not-have the benefit of the preliminary objection raised by the respondent later on. We are sure if such an objection had been raised at that stage, probably the matter would not had landed in the committee. That takes us to the second contention raised by Mr. Swaminathan, Advocate for the complainant, that the respondent did not file his written Bay, This argument is devoid of any merits, as it is nowhere compulsory for the respondent to file his written say. Again the anology from criminal prosecution could be drawn, An accused person need not open his mouth, since the initial burden of proving the case against him is on the prosecution or the complainant as the case may be. Here also the burden is on the complainant to prove misconduct against an advocate. He need not file his written say. It is sufficient if he cross examines the witnesses of the complainant and shows thereby that no case of misconduct is made out against him. He could also show the Bame by pointing out that there is no case which requires, replying to. The disciplinary committee of the State Bar Council dismissed the complaint mainly on the ground that the complainant had produced only a Xerox copy of document No. 9 and had not filed other documents; though called upon to do so ; that the complainant if he felt that the matter gave rise to defamation could approach a civil or criminal or both courts and that before an act of an advocate could amount to l(other" misconduct as contemplated u/s 35 of the Advocates' Act, 1961 such conduct should have some nexus or proximity with discharge of professional duties. We may not go full hog with the reasoning of the said committee merely because the complainant had the doors of civil or criminal courts open is no ground not to pursued parallel remedy allowed u/s 35 of the Advocates' Act. As regards "other" misconduct, it was submitted by the advocate on behalf of the respondent by citing as many as 25 cases that such act had to be somehow connected with the duties of a person as an advocate. We were taken to the facts of these cases to show that acts which was submitted by the respondent's lawyer that such*.act should be as held in various decided cases, somehow connected with his profession as an Advocate; for example soliciting advertising, setting bribe, bribing judges, purchasing decrees etc. as mentioned in detail in the written arguments submitted by him. We are not inclined to agree with this. The categories of "other" misconduct have not closed. The case law cited is only illustrative and confined to its own facts, and not exhaustive. New category of "aider" misconduct could arise in the changing time. Life is not static and so also the ingenuity of a person to mis-conduct. Therefor.3 the case law could he of a very limited value under such circumstances. Therefore we are not inclined to accept the contention of the respondent's lawyer that the alleged other misconduct should be one of the kinds mentioned in the cited cases. But we could still uphold a final conclusion reached by the disciplinary Committee of a State Bar Council with a different reasoning. We have ourselves gone through the list of charges accompanying the complaint. These charges are said to have been made by the .respondent against the institution namely" madmai Institute of Social sciences. These complaints have been made to the University Grants Commission, to the Madurai kamaraj University C.B.I., the Ministry of Welfare, Home Secretary, Delhi, I.G.Crime, Madras, Madurai Corporation and the Deputy Registrar, T.N.Regn. Deptt. The gist of all these complaints seems to be in relation to the functioning and mismanagement in the Madurai Institute $f social Sciences. These authorities to Whom various complaints were made were directly concerned with the mismanagement complained about and therefore it cannot be said that the complaints-were made just to fight the institute or any of its officers including Dr.D.V.P.Raja. In spite of our repeated queries, Sri Swaminathan Advocate, who appeared for the complainant could not point out .any particular malice in making such complaint. These complaints have been made only to the concerned authorities and not published before the general public. Their object seems to be to. Rectify the mismanagement, if any . It was for the authorities to undertake enquiry, which we are told, was initiated and is still going, on. Sri Swaminathan, Advocate, for the complainant, submitted that an" Advocate has to be a Gentleman and must, de deport himself in a manner befitting a gentleman, though he could not really pin point the so called ungentlemanly acts on the part of the respondent. He further contended that the respondent was not acting on behalf of his client but had undertaken a so-called clinging operation of his own. The flip side of this argument, if taken to its logical end, would mean, that an advocate can act but only on behalf of his client a proposition very difficult to swallow. An advocate has also a role to play as a vigilant citizen to point out the evils' prevalent in society and in institutions funded by public money or even otherwise. A perusal of the various, complaints made to the authorities by the respondent would show that apparently the motivation was to bring out the mismanagement in the said Institute. History, particularly of. our freedom movement , is replete with illustrious brothers and sisters from the Bar, who fought against foreign rule and all kinds of injustice.. That role has not been taken away from the members of the Bar. In-deed it would be a sad day if someone were to contend that, advocate has to be only a mouth-piece of his client and has no voice of his own. We cannot countenance such a situation. We feel that taking the entire case of the complainant as it is, no case of professional or other misconduct has been made out against the respondent and therefore proceed, to dismiss this appeal. We must also mention the fact that this complaint applications made by the respondent to the various authorities were mainly against Madurai Institute of Social Science and not really against Dr. Raja. The said Institute and Dr. Raja have been alternatively shown to be the complainant in this case, including the vakalath of Sri Swaminathan, Advocate. If Dr. Raja was authorized by the said Institute to file and prosecute his complaint, no such resolution has been produced on record. In the result, we pass the following order. ORDER The appeal is dismissed. No order as to costs.