Holding

An advocate convicted of an offence involving moral turpitude must be removed from the State roll of advocates; suspension alone is insufficient.

Summary

Ishwar Prasad Arya, a practising advocate, was convicted under Section 307 of the Indian Penal Code for assaulting an opponent with a knife in a courtroom and sentenced to three years' rigorous imprisonment. The State Bar Council suspended him from practice for three years under Section 35 of the Advocates Act, 1961. Hikmat Ali Khan, the complainant, appealed to the Bar Council of India seeking removal of Arya's name from the roll of advocates, but the appeal was dismissed. The Supreme Court held that a conviction for an offence involving moral turpitude, such as IPC 307, constitutes serious professional misconduct warranting removal from the roll, not merely suspension. Consequently, the Court set aside the Bar Council of India's order and modified the disciplinary committee's order to remove Arya's name from the State roll of advocates.

Issues considered

Whether a conviction under Section 307 IPC, an offence involving moral turpitude, mandates removal of an advocate from the roll of advocates under Section 35(3)(d) of the Advocates Act, 1961.
Whether a three‑year suspension is an adequate punishment for such misconduct.
Whether the Bar Council of India erred in setting aside the disciplinary committee's order of the State Bar Council.

Legislation cited

Advocates Act, 1961s. 24-A, s. 35(3)(b), s. 35(3)(c), s. 35(3)(d)
Arms Acts. 25
Indian Penal Code, 1860s. 307

Subjects

Advocates Actprofessional misconductmoral turpituderemoval from rollsuspensionIPC 307Bar Council of Indiadisciplinary proceedings

Judgment

1'
A HIKMAT ALI KHAN
v.
ISHWAR PRASAD ARYA AND ORS.

JANUARY 28, 1997

B [S.C. AGRAWAL AND SUJATA V. MANOHAR, JJ.]

Advocates Act, 1961: Sections 35(3)(b), (c) & (d) and 24-A-Punish-
ment-Adequacy of-Test-detennination of-Advocate convicted under
S.307 !PC for assaulting his opponent in courtroom with a knife-State Bar
C Council suspended said Advocate from practice for three years-Held: proper
punishment was removal of said advocate from roll of advocates-Not mere
suspension from practice for a certain period-Conviction was for an offence
involving moral twpitude-State Bar Council failed to take note of gravity of
misconduct committed by said advocate.

D The respondent, a practising advocate, was convicted of an offence
under Section 307 of the Indian Penal Code, 1860 for assaulting his
opponent in the courtroom with a knife. On the basis of a complaint by
the appellant, the State Bar Council suspended the respondent from
practice for a period of three years under Section 35 of the Advocates Act,
E 1961. The appellant filed an appeal before the Bar Council of India for
removal of the name of the respondent from the roll of advocates, which
was dismissed Hence this appeal.

Allowing the appeal this Court

p HELD : 1. In view of the provisions of Sections 35(3)(b), (c) & (d)
and 24-A of the Advocates Act, 1961 the conduct involving conviction of an
offence involving moral turpitude which would disqualify a person from
being enrolled as an advocate has to be considered a serious misconduct
when found to have been committed by a person who is enrolled as an
advocate and it would call for the imposition of the punishment of removal
G of the name of the advocate from the roll of advocates. In the instant case,
the respondent has been convicted of the offence of attempting to commit
murder punishable under Section 307 of the Indian Penal Code, 1860. He
had assaulted his opponent in the courtroom with a knife. The gravity of
the misconduct committed\ by him is such as to show that he is unworthy
H of remaining in the profession. The said misconduct, therefore, called for
632
HA KHAN v. l.P.ARYA[S.C.AGRAWAL,J.] 633

the imposition of the punishment of removal of the name of the respondent A
._ from the State roll of advocates and the State Bar Council, in passing the
punishment of debarring the respondent from practising for a period of
three years, has failed to take note of gravity of the misconduct committed
by the respondent. [639-H, 640-A-D]
1

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4240 of B
1986.

Frolll the. Judglllent and Order dated 8.9.85 of the Disciplinary
>
CoIIllilittee of the Bar Council of India, in D.C.A. Nos. 17 and 17-A of
1981.
c
Subodh Markandeya, Ms. Chitra Markandeya, Ajay Singh and Ms.
Meenakshi Aggarwal for the Appellant.

H.K. Puri (Pralllod Swarup) (NP) for the Respondents.
D
The J udglllent of the Court was delivered by
-'
S.C. AGRAWAL, J. Ishwar Prasad Arya, respondent No. 1, was
registered as an advocate with the Bar Council of Uttar Pradesh and was
practising at Badaun. An incident took place on May 18, 1971 during lunch
interval at about 1.55 p.m. in which respondent No. 1 assaulted his op- E
ponent Radhey Shya!Il in the court room of Munsif/Magistrate, Bisauli at
Badaun with a Knife. A pistol shot is also said to have been fired by him
at the time of incident. After investigation he was prosecuted for offences
under Section 307 of the Indian Penal Code and Section 25 of the Arllls
Act. The Ist Temporary Civil and Sessions Judge, by his judglllent dated F
_,.,
July 3, 1972, convicted him of the said offence and sentenced hilll to
undergo rigorous imprisonment for three years for the .offence under
Section 307 I.P.C. and for a period of nine months for offence under
Section 25 of the Arms Act. The conviction and sentence for the offence
under Section 307 I.P.C. were maintained by the High Court by its judg- G
ment dated September 10, 1975 in Criminal Appeal No. 1873 of 1972 but
he was given the benefit of doubt regarding offence under Section25 of the
Arms Act and the conviction and sentence for the said offence were set
~
aside. Before he could be arrested to undergo the punishlllent of rigorous
j
imprisonment for three years for offence under Section 307 I.P.C., a copy H
'
~
634 SUPREME COURT REPORTS [1997] 1 S.C.R.

A of letter No. Pr. VJ/Chh. Pa XXIII-2016-75-76 dated April 28, 1976 pur-
porting to have been sent by Shri L.R. Singh, Deputy Secretary, Ministry •
of Home, U.P., Lucknow, addressed to the District Magistrate, Badaun
bearing endorsement No. 1513 (II)-75-76 was received in the Court of the
}-
lllrd Additional District and Sessions Judge, Badaun, who was responsible
B for executing the order of the court of the 1st Temporary Civil & Sessions
Judge on its abolition. In the said letter it was stated that the Governor has
been pleased to suspend the conviction of Ishwar Prasad Arya under
Article 161 of the Constitution with immediate effect and until further <.
orders he should remain free. After receiving the copy of the said letter
c dated April 28, 1976 the IIIrd Additional District & Sessions Judge, on
April 30, 1976, stayed the proceedings in the case and despite repeated
inquiries by the court from the State Government about the suspension of
the sentence the execution of the sentence awarded to respondent
remained suspended till September 27, 1977, when on receipt of a crash
D radiogram message from the Home Ministry, Lucknow, it was found that
the letter dated April 28, 1976 was fraudulent and thereupon a warrant for
.,_
the arrest of respondent no. 1 was issued by the Court on September 28,
1977 and he was arrested the same day and was sent to Badaun Jail to
undergo the imprisonment. On December 9, 1977 Shri G.S. Sharma, Illrd
E Additional District & Sessions Judge, Badaun sent a complaint containing
these facts to the Chairman, Bar Council of U.P, for taking action against
respondent No. 1 under Section 35 of the Advocates Act, 1961 (hereinafter
referred to as 'the Act'). On the basis of the said complaint disciplinary
proceedings (D.C. Case No. 70 of 1981) were initiated against respondent
F No. 1 by the Bar Council of U.P. By order dated January 30, 1982 the
Disciplinary Committee of the Bar Council of U.P. found respondent No. '
1 guilty of gross professional mis-conduct by taking the benefit himself of
j.
a forged and fabricated document which had been prepared at his behest.
The Disciplinary Committee of the Bar Council of U.P. directed that
G respondent No. 1 be debarred from practising as an advocate for a period
of two years from the date of the service of the order. Respondent No. 1 .
\

filed an appeal (D.C. Appeal No. 4 of 1982) in the Bar Council of India
against the order dated January 30, 1982 passed by the Disciplinary Com-
;.._
milice of the Bar Council of U.P. The said appeal was allowed by the
H Disciplinary Committee of the Bar Council of India by order dated June
~
,. H.AKHAN V. I.P.ARYA[S.C.AGRAWAL,J.] 635

8, 1984 and the order of the Disciplinary Committee of the Bar Council A
~
of U.P. dated January 30, 1982 was set aside on the view that there was
no material on the basis of which it could reasonably be held that respon-

--
'
dent No. 1 had prepared the document which was subsequently found
forged.
B
The appellant, Hikmat Ali Khan, had also submitted a complaint
against respondent No. 1 to the Secretary , Bar Council of U.P., wherein
it was stated that by order dated July 3, 1972 passed by the Temporary
> Civil & Sessions Judge, Badaun the respondent had been convicted and
sentenced to three years rigorous imprisonment under section 307 l.P.C.
and his appeal had been dismissed by the High Court by judgment dated c
September 10, 1975 and even after the dismissal of his appeal respondent
No. 1 he remained out of jail till September 27, 1978 on the basis of a
forged and fraudulent document purported to have been sent by the
Deputy Secretary, Ministry of Home, U.P, Lucknow and that during the
said period he continued to practice as an Advocate: In the said complaint, D
it was also mentioned that the name of respondent No. 1 is noted as a bad
character in register No. 8 of Police Station, Wazirgang, District Badaun
and further that a number of criminal cases have been registered against
him. It was prayed that a fresh inquiry may be made in the matter and in
case the facts are proved against respondent No. 1 his registration as an
advocate may be cancelled since he is a blot to the names of all the E
advocates. On the basis of the said complaint of the appellant proceedings
(D.C. Case No. 40of1983) were initiated against respondent No. 1 by the
Bar Council of U.P. In the said proceedings, respondent No. 1 appeared
and filed his written statement, but thereafter he did not .appear and
participate in the proceedings. The Disciplinary Committee of Bar Council F
. _,
of U.P. proceeded ex parte against him. By order dated March 25, 1984
the Disciplinary Committee found that respondent No. 1 was convicted
and sentenced under Section 3071.P.C. and under Section 25 of the Arms
Act and that his name was also recorded in Register No. 8 maintained by
police in Ko_!Wali Badaun and that it is a register in which the names of
the bad characters are entered. The Disciplinary Committee he!µ that it is
G
unbecoming of an advocate to earn such a bad reputation in the society
and that respondent No. 1 was· liable to be punished. The Disciplinary
~A.
Committee of the Bar Council of U.P. directed that respondent No. 1 be
debarred from practising as an advocate for a period of three years.,
Respondent No. 1 filed an appeal (D.C. Appeal No. 17 1984) against the H
636 SUPREME COURT REPORTS [1<197] 1 s.c.j
A said order passed by the Disciplinary Committee of the Bar Council of U .P.
The appellant also filed an appeal (D.C. Appeal No. 17A of 1984) against
the said order. Respondent No. 1, in his appeal, prayed that the punish-
ment imposed by the Disciplinary Committee of the Bar Council of U.P.
be set aside; the appellant, in his appeal, on the other hand, wanted the
B . said punishment to be enhanced and his name to be removed from the roll
of advocates. Both the appeals were disposed of by the Disciplinary Com-
-
mittee of the Bar Council of India by order dated September 8, 1985. It
was observed that the matter has already been considered by the Discipli-
nary Committee of the Bar Council of India in its order dated June 8, 1984 '-·
in D.C. Appeal No. 4 of 1982 whereby the order of the Bar Council of U.P.
C dated January 30, 1982 suspending respondent No. 1 from practice for
three years had been set aside. The Disciplinary Committee of the Bar
Council of India held that there was no choice left with it but to accept the
appeal in view of the order dated June 8, 1984 passed by the Disciplinary
Committee of the Bar Council of India in D.C. Appeal No. 4 of 1982 and,
D. therefore, the appeal filed by respondent No. 1 was allowed and the order
of the Disciplinary Committee of the Bar Council of U.P. dated March 25,
1984 in D.C. Case No. 40 of 1983 was set aside. Consequently, the appeal
filed by the appellant was dismissed. Feeling aggrieved by the said order
dated September 8, 1985 passed by the Disciplinary Committee of the Bar
Council of India allO\ving D.C. Appeal No. 17of1984 filed by respondent
E No. 1 and dismissing D.C. Appeal No. 17A of 1984 filed by him, the
appellant has filed this appeal.

Shri Subodh Markendaya, the learned counsel for the appellant, has
urged that in passing the order dated September 8, 1985 the Disciplinary
p Committee of the Bar Council of India has failed to appreciate that in the
earlier order dated June 8, 1984 in D.C. Appeal No. 4 of 1982 the
Disciplinary Committee of the Bar Council of India had given the benefit
of doubt to respondent No. 1 in respect of fabrication of letter dated April
28, 1976 on the 1-iasis of which he was able to avoid being arrested for a
period of about 16 months from April 30, 1976 to September 28, 1977 for
G undergoing the sentence of rigorous imprisonment imposed" on him under
Section 307 I.P.C. and that in the said proceedings the Disciplinary Com-
mittee of the Bar Council of India had not considered the conduct of
respondent No. 1 involving his conviction for the offence under Section 307
I.P.C. and his being sentenced to rigorous imprisonment for three years.
H According to Shri Markendaya, the said conduct of respondent No. 1 was

..
H.AKHAN v. LP.ARYA[S.C.AGRAWAL,J.] 637
the subject matter of the complaint filed by the appdlant for which conduct A
the Disciplinary Committee of the Bar Council of U.P. had imposed the

- punishment of debarring him from practising as an advocate for a period
of three years. Shri Markendaya also urged that in his complaint the
appellant had also pointed out that the name of respondent No. 1 is
entered in Register No. 8 maintained at Kotwali Badaun and the said
B
register contains the names of bad characters and that this fact was also
found established by the Disciplinary Committee of the Bar Council of U .P.
and it was observed that it is unbecoming of an advocate to earn such a
bad reputation in the society. The submission of Shri Markendaya is that
having regard to the gravity of the mis-conduct of respondent No. 1 in
assaulting his opponent in the court room with a knife and his having been C
committed the offence under Section 307 I.P.C. and his being sentenced to
undergo rigorous imprisonment for three years in connection with the said
incident, the punishment of removal of the name of respondent No. 1 from ·
the roll of advocates should have been imposed on him and that the
Disciplinary Committee of the Bar Council of U .P. was in error in imposing D
the light punishment of debarring respondent No. 1 from practising as an
advocate for a period of three years only and that this was a fit case in
which the appeal filed by the appellant should have been allowed by the
Disciplinary Committee of the Bar Council of India.

Respondent No. 1 is represented by Shri H.K. Puri, After arguing E
for sometime Shri Puri sought leave of the Court for being discharged as
an advocate of respondent No. 1 when he was asked to address the Court
on the appeal regarding enhancement of the punishment imposed on
respondent No. 1. We, however, did not grant leave sought by Shri Puri for
being discharged as a counsel for respondent No. 1. F

The order dated March 25, 1984 passed by the Disciplinary Commit-
tee of the Bar Council of U.P. in D.C. Case No. 40 of 1983 arising out of
the complaint submitted by the appellant clearly holds that from material
available on record it is established that respondent No. 1 was convicted G
and sentenced for the offence under Section 307 I.P.C. and under Section
25 of the Arms Act and that his name is recorded in Register No. 8
_.,. maintained at Kotwali Badaun which is a register in which the names of
the bad characters are entered. It is no doubt true that the conviction of
respondent No. 1 for the offence under Section 25 of the Arms Act was
set aside by the High Court, on appeal, but his conviction and sentence for H
~
638 SUPREME COURT REPORTS [1997] 1 S.C.R.

A the offence under Section 307 I.P.C. was maintained by the High Court. ,, ,..
The said conviction under Section 307 I.P.C. related to an incident which
took place in the court room wherein respondent No. 1 had assaulted his
opponent, Shri Radhey Shyam, with a knife. The Disciplinary Committee
of the Bar Council. of India, while dealing with the appeal of respondent
-
No. 1 as well as the cross appeal of the appellant which were filed against
B
the said order of the Disciplinary Committee of the Bar Council of U.P.,
failed to take note that the mis-conduct of respondent No. 1 which was the
mbject matter of the complaint in D.C. Case No. 4 of 1982 arising out of
the complaint filed by Shri G.S. Sharma, Illrd Additional District and
Sessions Judge, Badaun, was different from the mis-conduct which had
c been found established on the basis of the complaint made by the appel-
!ant. The complaint of Shri G.S. Sharma, which gave rise to D.C. Case No.
70 of 1981 before the Disciplinary Committee of the Bar Council of U.P.,
related to fabrication of the copy of the letter No. Pr. VI/Chh. Pa XXIII-
2016-75-76 dated April 28, 1976 from Shri L.R. Singh, Deputy Secretary,
D Ministry of Home, U.P., Lucknow, to the District Magistrate, Badaun that
was received in the court of Illrd Additional & Sessions Judge vide '--

endorsement No. 1513(11)-75-76 wherein it was stated that the Governor
was pleased to suspend the conviction of respondent No. 1 under Article
161 of the Constitution with immediate effect and that until further orders
he should remain free. In the said complaint of Shri G.S. Sharma, the
E Disciplinary Committee of the Bar Council of U .P ., by order dated January
30, 1982, found respondent No. 1 guilty of gross professional mis-conduct
by taking the benefit himself of a forged and fabricated document which
had been prepared at his behest. Th(; Disciplinary Committee of the Bar
Council of India, in its order dated June 8, 1984 in D.C. Appeal No. 4 of
F 1982, felt that there was no material from which it could reasonably be held
that respondent No. 1 had prepared the document which was subsequently
found forged and that respondent No. 1 could be given the benefit of doubt
and, therefore, the order dated January 30, 1982 passed by the Disciplinary
Committee of the Bar Council of U.P. in D.C. Case No. 70 of 1981 was set
aside. The said order of the Disciplinary Committee of the Bar Council of
G India did not have any bearing on the conduct of respondent No. 1 which
led to his conviction for the offence under Section 307 I.P.C. and his being
sentenced to rigorous imprisonment for three years and his name. being ~
•·-
entered as a bad character in Register No. 8 of Kotwali Badaun which was
the subject matter of the complaint made by the appellant and on the basis
H of which the Disciplinary Committee of the Bar Council of U .P. had passed
H.A.KHAN v. l.P.ARYA[S.C.AGRAWAL,J.] 639
the order dated March 25, 1984 in D.C. case No. 40 of 1983 debarring A
respondent No. 1 from practising as an advocate for a period of three years.
The Disciplinary Committee of the Bar Council oflndia was, therefore, in
error in setting aside the order dated March 25, 1984 passed by the
Disciplinary Committee of the Bar Council of U.P. merely on the basis of
its order dated June 8, 1984 in D.C. Case No. 4 of 1982. The order of the
B
Disciplinary Committee of the Bar Council of India dated September 8,
1985 allowing D.C. Appeal No. 17of1984 filed by respondent No. 1 cannot,
)
therefore, be sustail)td and has to be set aside. Having regard to the
findings recorded by the Disciplinary Committee of the Bar Council of
U.P. regarding the mis-conduct of respondent No. 1 that has been found
established from the record, we find no merit in D.C. Appeal No. 17 of C
1984 filed by respondent No. 1 against the order dated March 25, 1984
passed by the Disciplinary Committee of the Bar Council of U.P. and the
said appeal is liable to be dismissed.

We will now come to D.C. Appeal No. 17-A of 1984 filed by the D
appellant which raises the question whether the punishment imposed by
the Disciplinary Committee of the Bar Council of U .P. in its dated March
25, 1984, is adequate having regard to the gravity of the mis-conduct of
respondent No. 1. The mis-conduct of respondent No. 1 that has been
found established is that he had assault his opponent, Shri Radhey Shyam
with a knife in the court room and he has been convicted of the offence E
under Section 307 l.P.C. and has been sentenced to rigours imprisonment
for a period of three years. It has also been found established that the name
of respondent No. 1 was contained in Register No. 8 maintained at Kotwali
Badaun which is a register wherein the names of bad characters are
entered. The acts of mis-conduct found established are serious in nature. F
Under sub-Section (3) of Section 35 of the Act the Disciplinary Committee
of the State Bar Council is empowered to pass an order imposing punish-
ment on an advocate found guilty of professional or other misconduct. Such
punishment can be reprimand [clause (b )], suspension from practice for a
certain period [clause (c)] and removal of the name of the advocate from
the State roll of advocate [clause (d) ], depending on the gravity of the G
mis-conduct found established. The' punishment of removal of the name
from the roll of advocates is called for where the mis-conduct is such as to
show that the advocate is unworthy of remaining in the profession. In this
context, it may be pointed out that under Section 24(A) of the Act a person
who is convicted of an offence involving moral turpitude is disqualified for H
640 SUPREME COURT REPORTS [1997) 1 S.C.R.
A being admitted as an advocate on the State roll of advocates. This means
that the conduct involving conviction of an offence involving moral tur-
pitude which would disqualify a person from being enrolled as an advocate
has to be considered a serious mis-conduct when found to have been
committed by a person who is enrolled as an advocate and it would call
B for the imposition of the punishment of removal of the name of the
advocate from the roll of advocates. In the instant case respondent No. 1
has been convicted of the offence of attempting to commit murder punish-
able under Section 307 1.P.C. he had assaulted his opponent in the court
room with a knife. The gravity of the mis-conduct committed by him is such
as to show that he is unworthy of remaining in the profession. The said
C mis-conduct, therefore, called for the imposition of the punishment of
removal of the name of respondent No. 1 from the State roll of advocates
and the Disciplinary Committee of the Bar Council of U .P ., in passing the
punishment of debarring respondent No. 1 from practising for a period of
three years, has failed to take note of gravity of the mis-conduct committed
D by respondent No. 1. Having regard to the facts of the case, the proper
punishment to be imposed on respondent No. 1 under Section 35 of the
Act should have been to direct the removal of his name from the State roll
of advocates. The appeal filed by the appellan.f, therefore, deserves to be
allowed. ·

E For the reasons aforementioned, the appeal is allowed, the impugned
order dated September 8, 1985 passed by the Disciplinary Committee of
the Bar Council of India in D.C. Appeals Nos. 17 and 17-A of 1984 is set
aside and the order dated March 25, 1984 passed by the Disciplinary
Committee of the Bar Council of U.P. in D.C. Case No. 40 of 1983 is
upheld with the modification that instead of his being debarred from
F practising as an advocate for a period of three years, the name of respon-
dent No. 1 shall be removed from the State roll of advocates. No. order as
to costs.

V.S.S. Appeal allowed