Holding

The Court held that the Bar Council of India's refusal to inquire was justified as the alleged acts did not meet the threshold of misconduct requiring disciplinary proceedings, and its findings were not irrational, so the appeal was dismissed.

Summary

The tenant, N. Chouraria, filed a complaint of misconduct against his landlord‑advocate, M.R. MurlI, alleging assaults and threats during rent‑control proceedings. The State Bar Council referred the complaint to the Disciplinary Committee of the Bar Council of India, which refused to inquire, noting the lack of any criminal prosecution, charge‑sheet, or reliable evidence, and that the advocate had appeared as a litigant, not as counsel. The appellant argued that any misconduct by an advocate, professional or otherwise, should be punishable under Section 35 of the Advocates Act. The Supreme Court held that misconduct must be of a nature that warrants disciplinary proceedings and that the Bar Council’s findings were not irrational; therefore, the Court would not interfere with the Committee’s decision. Consequently, the appeal under Section 38 was dismissed. No costs were awarded.

Issues considered

Whether the alleged assaults and threats by an advocate constitute "misconduct" within the meaning of Section 35 of the Advocates Act, 1961.
Whether the Bar Council of India may decline to inquire into a complaint where no criminal proceeding or charge‑sheet has been filed and the allegations lack reliable evidence.
Whether the Supreme Court can interfere with the Disciplinary Committee’s decision under Section 38 of the Advocates Act.

Legislation cited

Advocates Act, 1961s. 35, s. 38

Subjects

Advocates ActmisconductBar Council of Indiadisciplinary committeeprofessional ethicsrent controlSection 35Section 38appeal dismissed

Judgment

A NORA TANMAL CHOURARIA
V.

M.R. MURLI AND ANR.

APRIL 16, 2004

B [V.N. KHARE, CJ., S.B. SINHA AND S.H. KAPADIA, JJ.]

Advocates Act, 1961; Ss. 35 and 38 :

Complaint of misconduct filed by tenant against landlord, a practising
C Advocate-State Bar Council transferring it to Disciplinary Committee ofBar
Council of India-BC/ refasing to enquire into the complaint on grounds that
landlord did not appear in the rent control procee<fings as an Advocate but
as a party in person and no criminal proceeding was initiated by the tenant
nor did police file charge-sheet against the landlord-On appeal, Held:
D Standard required to be maintained by a member of the legal profession must
be commensurate with the nobility thereof-,-Although power of BC/ is not
limited but the thrust ofcharge must be such which would necessitate initiation
of disciplinary proceeding-Disciplinary Committee of BC/, a statutory body,
is duty bound to arrive at finding offacts in respect ofthe complaint-However,
findings of BC/ not so irrational meriting interference by this Court.
E
Words and Phrases:

'Misconduct'-Meaning of-In the context of Advocates Act, 1961.

Respondent-landlord, an Advocate, initiated a rent control
F proceeding against the appellant-tenant. During pendency of the
proceedings first respondent filed a complaint before the Bar Council of
India against the landlord/Advocate citing therein three instances of
misconduct against him. The State Bar Council had transferred the
complaint to the Disciplinary Committee of the Bar Council of India (BCI).
G The Disciplinary Committee of BCI refused to enquire into the complaint
since factum of occurrence of the incidents were not reliable; that no
criminal proceeding was initiated by filing a complaint against the first
respondent by the appellant; that no charge-sheet was filed by the police
against him; that he has been appearing in the rent control proceedings
not as an Advocate but as a party in person; and that the appellant has
If 266
N. CHOURARIA v. M.R. MURLI 267
failed to substantiate the allegation in the complaint. Hence the present A
appeal.

It was contended by the appellant that the Advocate on the roll of
the Bar Council could be proceeded against for committing any misconduct
and not necessarily a professional misconduct; and that since the
respondent had assaulted him, it must be held to be the acts of misconduct. B
The respondents submitted that the appellant has been harassing him
by falsely implicating him in a number of cases but no relief had been
granted in these cases; that if an act o~ assault takes place in a Court room,
the same would have been brought to the notice of the presiding officer; C
that neither any private complaint was filed nor any proceeding in
criminal court was initiated by the appellant against him; and that no
evidence in support of the complaint was produced by the appellant before
the Disciplinary Committee of the Bar Council of India.

Dismissing the appeal, the Court D
HELD:l.l. A member of legal profession is expected to maintain a
standard in dignified and determined manner. The standard required to
be maintained by the member of the legal profession must be
commensurate with the nobility thereof. A Lawyer is obligated to observe
those norms which make him worthy of the confidence of the community E
in him as an officer of the Court. [273-D-E)

Bar Council, Maharashtra v. M V. Dabholkar, AIR [1976) SCC 242,
referred to.

1.2. Although the power of the Bar Council is not limited, the thrust F
of charge must be such which would necessitate initiation of disciplinary
proceedings. A professional or other misconduct committed by a member
of the profession should ordinarily be judged qua profession. To determine
the quantum of punishment which may be imposed on an Advocate, the
test of proportionality shall be applied which would also depend upon the
nature of the acts complained of. No universal rule thus can be laid down G
as regard initiation of a proceeding for misconduct of a member of th~
profession. (273-F-G(

'D' an Advocate of the Supreme Court, (1955) 2 SCR 1006, referred
to.
H
268 SUPREME COURT REPORTS (2004] SUPP. I S.C.R.

A 1.3. Misconduct has not been defined in the Advocates Act, 1961.
Misconduct, inter a/ia, envisages breach of discipline, although it would
not be possible to lay down exhaustively as to what would constitute
conduct and indiscipline, which is wide enough to include wrongful
omission or commission whether done or omitted to be done intentionally
B or unintenlionally. It means "improper behaviour, intentional wrong doing
or deliberate violation of a rule of standard or behaviour". Misconduct is
said to be a transgression of some established and definite rule of action,
where no discretion is left except what necessity may demand; it is a
violation of definite law. (271-E-F)

C Delhi Cloth and General Mills Co. Ltd v. Its Workmen, (1969) 2 LLJ
755 and B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749, referred to•

. Probodh Kumar Bhowmick v. University ofCalcutta, (1994) 2 Calcutta
law Journal 456, referred to.

D Law Lexicon by P. RamanathAiyar, Reprint Edition (1987) p. 821,
referred to.

Black's Law Dictionary, Sixth Edition, p. 999, referred to.

1.4. The Disciplinary Committee of the Bar Council of India is a
E statutory body. At the first instance the duty to arrive at a finding of facts
in respect of complaint made against a member of the legal profession is
upon it. This Court although enjoys extensive and wide jurisdiction uuder
Section 38 of the Act, the opinion of the Bar Council shall carry great
weight. (274-D)

F LS. In the instant case, the Disciplinary Committee had considered
the conduct of the appellant in order to judge as to whether the acts on
the part of the respondents amount to misconduct. There was absolutely
no reason as to why the appellant did not make any complaint to the State
Bar Council immediately after occurrence of the incidents; that there was
absolutely no reason as to why he did not pursue the FIR/complaint lodged
G with the Police seriously; that in relation to the incident which allegedly
took place inside the Court room it was expected of the appellant or his
Advocate to bring the same to the notice of the Court; and that even in
relation to these incidents neither any complaint was made before the
Presiding Officer of the Court nor a proceeding was initiated. In the fact
H situation of the case, the findings of the Bar Council cannot be sairl to be
N. CHOURARIAv. M.R. MURLI [SINHA, J.] 269
so irrational meriting interference by this Court. (274-F-G-H; 275-A-Bl A
'D' an Advocate of the Supreme Court, (1955) 2 SCR 1006; Hikmat
Ali Khan v. Ishwar Prasad Arya, (1997) 3 SC 131 and N.G. Dastane v.
Shrikant S. Shivde and Anr., (2001) 6 SC 135, distinguished.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5476of1999. B
From the Judgment and Order dated 27.2.99 of the Disciplinary
Committee of the Bar Council of India in B.C.I.T.R. No. 73of1997.

S.B. Upadhyay, R.R. Dubey and Shiv Mangal Sharma for the Appellants.

T. Raja for the Respondent
c
The Judgment of the Court was delivered by

S.B. SINHA, J. INTRODUCTION:

An order of the Bar Council of India dated 27 .2.1999 passed in BCI D
TR No.73/1997 refusing to enquire into a complaint of purported misconduct
on the part of the respondent herein is in question in this appeal preferred by
the Appellant herein under Section 38 of the Advocates Act, 1961.

BACKGROUND FACTS: E
The relationship between the appellant and the respondents herein is
that of landlords and tenant. A rent control proceeding was initiated by the
respondents against the appellant. While the rent control proceeding was
pending in the small causes court, they allegedly misconducted themselves
by reason of following acts of omissions and commissions :- F
(1) On 8.10.1993 when the appellant came out of the court hall of
the said court after attending the appeal pending· there, the first
respondent allegedly came from behind and hit him on his back
and ran away.

(2) On 26.10.1993 while the appellant was com.ing out of the court G
hall, the first respondent accompanied with some rowdy elements
threatened to kill him. The matter was allegedly reported to the
police on the same day.

(3) On 1.3.1995 when the learned Xth Judge left for his chamber H
270 SUPREME COURT REPORTS [2004) SUPP. I S.C.R.

A during the lunch break and while the appellant was leaving the
court hall along with his advocate Shri S.Vijayranjan, the first
respondent kicked him on the knee of his left leg in the court
room with an intention to cause injury and further asked him not
to appear in the court for evidence.

B The disciplinary committee of the Bar Council of Tamil Nadu upon
receipt of the said complaint of the appellant herein initiated a proceeding.
The matter ultimately appeared to have been transferred to the disciplinary
committee of the Bar Council of India.

Impugned Order of the Bar Council :
c
The disciplinary committee of the Bar Council of India noticed that in
relation to the aforementioned acts of omission and commission on the part
of the respondents, no criminal proceeding was initiated by filing a complaint
petition by the appellant. No charge-sheet had also been filed J>y the police
D in relation to the occurrence dated 26.10.1993 wherefor an FIR had been
lodged. It was further accepted that the first respondent had not been appearing
in the aforementioned rent control proceedings as an advocate but as a party
in person. Having regard to the fact that till the date of passing of the impugned
order neither the appellant herein produced any document to substantiate any
follow up action on his part in respect of complaint filed by him before the
E police authority, nor did he file any private complaint, the committee was
prime facie of the view that the factum of occurrence of the said incidents
are not reliable. Further, it was noticed that the first respondent appeared in
the said litigation not as advocate but as litigant in person.

Submissions :
F
Mr. S.B. Upadhyay, learned counsel appearing on behalf of the appellant,
inter a/ia, would submit that under Section 35 of the Advocates Act an
advocate on the roll of the Bar Council can be proceeded against for
committing any misconduct which may not be confined to professional
misconduct; the Bar Council grossly erred in passing the impugned order.
G Strong reliance in support of the said contention has been placed on a decision
of this court in D An Advocate of the Supreme Court, reported in [I 95S] 2
SCR 1006. The learned counsel would contend that having regard to the fact
that the first respondent assaulted the complainant, asked him not to proceed
with the case and on the third occasion kicked him as a result whereof he fell
H down are clear pointers to the fact that such acts are .not expected of a
N. CHOURARIA v. M.R. MURLI [SINHA, J.] 271

member of a legal profession and, thus, the same must be held to be acts of A
misconduct Learned counsel in support of said contention relied upon Hikmat
Ali Khan v. /shwar Prasad Arya and Ors., [1997) 3 SCC 131 and NG.
Dastane v. Shrikant S. Shivde and Anr., [2001) 6 SCC 135. Our attention has
also been drawn to the preamble of the Bar Council of India Rules.

Mr. T. Raja learned counsel appearing on behalf of the respondents B
would, on the other hand, submit that the appellant herein had been harassing
the respondent by initiating false cases and in fact the complaint in question
against the respondents is the eighth one and no relief had been granted in
the other seven complaints. Mr.Raja would urge that it is improbable that if
an act of the nature complained of had taken place in a court room, the same C'
would not be brought to the notice of the presiding officer. Neither any
private complaint having been filed nor any proceeding in the criminal courts
having been initiated by the appellant herein and further no evidence in
support thereof having been produced before the Bar Council, the learned
counsel would contend that the impugned orders should not be interfered
~~~ro~ D
Misconduct :

Misconduct has not been defined in the Advocates Act, 1961.
Misconduct, inter alia, envisages breach of discipline, although it would not
be possible to lay down exhaustively as to what would constitute conduct and E,
indiscipline, which, however, is wide enough to include wrongful omission
or commission whether done or omitted to be done intentionally or
unintentionally. It means, "improper behaviour intentional wrong doing or
deliberate violation of a rule of standard or behaviour'':

Misconduct is said to be a transgression of some established and definite
F'
rule of action, where no discretion is left except what necessity may demand;
it is a violation of definite law.

In Delhi Cloth and General Mills Co. ltd v. Jts Workmen, reported in
(1969) 2 LLJ 755, Shah, J. stated that misconduct spreads over a wide and G
hazy spectrum of industrial activity; the most seriously subversive conducts
rendering an employee wholly unfit for employment to mere technical default
covered thereby.

This Court in State of Punjab and Ors. v. Ram Singh Ex. Constable,
reported in [1992) 4 sec 54, noticed:- H
272 SUPREME COURT REPORTS [2004] SUPP. I S.C.R.

A "5. Misconduct has been defined in Black's Law Dictionary, sixth
Edition at Page 999 thus :-

"A Transgression of some established and definite rule of action,
a forbidden act, a dereliction from duty, ~nlawful behaviour, wilful
in character, improper or wrong behaviour, it synonyms are
B misdemeanor, misdeed, misbehaviour, delinquency, impropriety,
mismanagement, offense, but not negligence or carelessness".

Misconduct in offence has been defined as :-

"Any unlawful behaviour by a public officer in relation to the duties
C of his office, wilful in character. Tenn embraces acts which the office
holder had no right to perform, acts performed improperly and failure
to act in the face of an affirmative duty to act".

P. Ramanath Aiyar's Law Lexicon, Reprint Edition, (1987) at Page 821
defines 'misconduct' thus :-
D
"The term misconduct implies a wrongful intention, and not a mere
error of judgment, Misconduct is not necessarily the same thing as
conduct involving moral turpitude. The word misconduct is a relative
term, and has to be construed with reference to the subject-matter and
the context wherein the term occurs, having regard to the scope of the
E Act or statute which is being construed. Misconduct literally means
wrong conduct or improper conduct. In usual parlance, misconduct
means a transgression of some established and definite rule of action,
where no discretion is left, except what necessity may demand and
carelessness, negligence and unskillfulness are transgressions of some
established, but indefinite, rule -of action, where some discretion is
F
necessarily left to the actor. Misconduct is a violation of definite law;
carelessness or abuse of discretion under an indefinite law. Misconduct
is a forbidden act; carelessness, a forbidden quality of an act and is
necessarily indefmite. Misconduct in office may be defined as unlawful
behaviour or neglect by a public official, by which the right of party
G have been affected."

Thus it could be seen that the word 'misconduct' though not
capable of precise of definition, on reflection receives its conotation
from the context, the delinquency in its performance and its effect on
the discipline and the nature of the duty. It may involve moral
H turpitude, it must be improper or wrong behaviour; unlawful behaviour,
N. CHOURARIA v. IV . \!IURLI [SINHA , J.] 273
wilful in character; forbidden act a transgression of established and A
definite rule of action or code of conduct but not mere error of
judgment, carelessness or negligence in performance of the duty; the
act complained of bears forbidden quality or character. Its ambit has
to be construed with reference to the subject-manner and the context
wherein the term occurs, regard being had to the scope of the statute B
and the public purpose it seeks to serve. The police service is a
disciplined service and it requires to maintain strict discipline. Laxity
in this behalf erodes discipline in the service causing serious effect in
the maintenance of law and order."

[See also Probodh Kumar Bhowmick v. University o/Calcutta, (1994) C
2 Calcutta Law Journal 456 and B.C. Chaturvedi v. Union of India, [1995)
6 sec 749].

Section 35 of the Advocates Act, however, refers to imposition of
punishment for professional or other misconduct. A member of legal profession
which is a noble one is expected to maintain a standard in dignified and D
determined manner. The standard required to be maintained by the member
of the legal profession must be commensurate with the nobility thereof. A
Lawyer is obligated to observe those norms which make him worthy of the
confidence of the community in him as an officer of the court. This Court in
Bar Council, Maharashtra v. M V.Dabholkar, AIR [1976) SCC 242 observed:- E

"The high moral tone and the considerable public service the bar is
associated with and its key role in the developmental and dispute-
processing activities and, above all, in the building up of a just society
and constitutional order has earned for it a monopoly to practise law
and an autonomy to regulate its own internal discipline." F
Although the power of the Bar Council is not limited, the thrust of
charge must be such which would necessitate initiation qf disciplinary
proceedings. A professional or other misconduct committed by a member of
the profession should ordinarily be judged qua profession. TO determine the
quantum of punishment which may be imposed on an advocate, the· test of G
proportionality shall be applied which would also depend upon the nature of
the acts complained of. No universal rule thus can be laid down as regard
initiation of a proceeding for misconduct of a member of the profession.

In 'M' an Advocate (supra), however, this court emphasized the H
requirement of maintaining a high standard stating :-
274 SUPREME COURT REPORTS [2004] SUPP. l S.C.R.

A "As has been laid down by this Court in the matter of 'G', a
Senior Advocate of the Supreme Court (A) (supra) the Court, in dealing
with cases of professional misconduct is "not concerned with ordinary
legal rights, but with the special and rigid rules of professional conduct
expected of and applied to a specially privileged class of persons
who, because of their privileged status, are subject to certain disabilities
B which do not attach to their men and which do not attach even to
them in a non-professional character ...he (a legal practitioner) is
bound to conduct himself in a manner befitting the high and honourable
professional to whose privileges he has so long been admitted; and if
he departs from the high standards which that professional has set for
c itself and demands of him in professional matters, he is liable to
disciplinary action."

Application of the principle to the present case :

The disciplinary committee of the Bar Council of India is a statutory
D body. At the first instance the duty to arrive at a finding of facts in respect
of complaint made against a member of the legal profession is upon it. This
court although enjoys extensive and wide jurisdiction under Section 38 of the
Act, the opinion of the Bar Council shall carry great weight. The appellant
herein had lodged complaint with the State Bar Council on 5.3.1995 in relation
E to the 3 incidents allegedly occurred on 8.10.1993, 26.10.1993 and t.3.1995.

The Disciplinary Committee had considered the conduct of the appellant
herein in order to judge as to whether the acts on the part of the respondents
amount to misconduct.

F There was absolutely no reason as to why the appellant did not make
any complaint to the State Bar Council immediately of the incidents which
took place on 8.10.1993 and 26.10.1993. If his contention to the effect that
in relation to the incident dated 26.10.1993 he had lodged a first information
report there was absolutely no reason as to why he did not pursue the same
seriously. Itis, as has been noticed by the Bar Council oflndia, accepted that
G the police filed final forms but despit~ the same the appellant did not file any
protest petition or initiate any other proceeding ·before criminal court, In
relation to the incident dated 1.3.1995 which allegedly took place inside the
court room ii was expected of the appellant or his advocate, who is. said to
be a retired district judge, to bring the same to the notice of the court. Even
H in relation to the incidents allegedly'occurred on 8.l'0.1993';nd 26.10.1993

)
N. CHOURARIA v. M.R. MURLI [SINHA, J.] 275

no complaint was made before the presiding officer of the court. No proceeding A
was initiated in relation to the purported incident on l.3.1995.

Can in the aforementioned fact situation, the findings of the Bar Council,
be said to be so irrational meriting interference by this court is the question?
We are of the opinion that it is not. We may further place on record that on
a querry made by us to Mr. Upadhyay as to whether any other incident had B
taken place after l.3.1995, the learned counsel categorically stated that no
such incident had thereafter taken place. We are, therefore, of the opinion
that the matter need not be pursued further.

Case Laws: c
Let us now consider the decision of this court cited at the Bar. In 'M'
an Advocate (supra), this court was dealing with a case where an advocate
who had been appearing in person had been an accused before a magistrate
where his conduct was found to be such which amounted to commission of
professional misconduct. He continuously and persistently attempted to hold D
up the trial and did everything in his power to bring the administration of
justice in contempt. In the aforementioned fact-situation, it was held that the
High Court was right in taking action against the advocate concerned.

In Hikmat Ali Khan v. /shwar Prasad Arya, (1997) 3 SC 131 the
concerned advocate assaulted his opponents with a knife. He was prosecuted E
and found guilty of commission of an offence under Section 307 of the IPC.
In the aforementioned situation, it was held that the advocate deserves the
extraordinary punishment of removal of his name from the state rolls of
advocates.

In N.G. Dastane v. Shrikant S. Shivde and Anr., (2001) 6 SC 135 an F
advocate in order to defend one of the accused persons before a magistrate
sought for adjournments repeatedly and on 4.12.1993 an adjournment was
sought on the premise that he was unable to speak on account of a throat
infection and continuous cough but the complainant came across the said
advocate "forcefully and fluently" arguing a matter before another court G
situated in the same building. Thereafter a complaint was lodged wherein a
prime facie case was found to have been made out. This court directed the
Bar Council of India to deal with the complaint.

The aforesaid decisions of this court are not applicable to the fact of the
.present case. H
276 SUPREME COURT REPORTS [2004) SUPP. I S.C.R.

A Conclusion :
We are, therefore, of the opinion that no case has been made out for
interfering with the impugned order.

This appeal is dismissed. But in the facts of the case there shall be no
B order as to costs.

S.K.S. Appeal dismissed.

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