CASE ANALYSIS: N.G. DASTANE v SHRIKANT S. SHIVDE AND ANR.

INTRODUCTION

CITATION: (2001) 6 SCC 135

DATE OF JUDGMENT: 05/05/2001

BENCH: JJ. K.T. Thomas, R.P. Sethi & S.N. Phukan

FACTS OF THE CASE

  • The Appellant was an agricultural scientist who has previously worked as an advisor in UNO. Currently, he is retired.
  • A complaint had been filed by appellant against accused of the offence of theft of electricity.
  • The defendants appointed two advocates for the proceedings in the trial court. They are Adv. Shri Shivde and his colleague Shri Kulkarni both practicing in Pune.
  • The proceeding began in the year 1993.
  • Everything was fine up to here, the reason for the case of professional misconduct began with the repeated adjournments of the proceedings.

TIMELINE

DATE

HAPPENING

30 July 1993

This was the actual date posted by Judicial Magistrate for the cross-examination of witnesses. But on this date, all the witnesses were not present, so the second advocate of respondents sought for an adjournment. The request was successfully conceded by the court.

23 August 1993

On this day, the Appellant and all other witnesses were present in the court for the cross examination. But both the respondent advocates had reasons for the adjournment, they are:

Advocate 1: He was busy outside the Court.

Advocate 2: “The father of the first respondent’s friend has been expired” so he had to go to his house for the same.

The request again was successfully conceded by the court.

13 September 1993

On this day again the respondents were ready with the flippant reasons and appealed for the adjournment. Despite several objections from the Appellant’s counsel the Judicial Magistrate entertained the request of adjournment.

16 October 1993

This being fourth time hearing, all the witnesses along with appellant were present in the court for the cross examination, but again the respondent advocates asked for an adjournment as they were ‘out of station’. The request as usual was concede by the Magistrate.

20 November 1993

Once again, the Appellant along with all the witnesses was present in the court for cross examination but the respondent advocates again asked for an adjournment on the grounds of indisposition. And the request was conceded by the Magistrate.

4 December 1993

On this day, only second respondent was present with a written application that first respondent was suffering from a severe throat infection and continuous cough.

The adjournment was granted but this time an order was given to produce the Medical Certificate and payment of ₹ 75 to the Appellant.

On the same day the Appellant went out of the courtroom and as he was walking through the corridor, he found the first advocate “perfectly and fluently arguing” another matter before and different bench. Having disturbed with this, the Appellant lodged a complaint against both the advocates in Maharashtra State Bar Council.

ISSUES INVOLVED

  • ISSUE 1. Whether both respondent advocates had involved in any professional or other misconduct?
  • ISSUE 2. Whether the Judicial Magistrate can be held accountable for all the procastinative tactics?

OBSERVATIONS OF THE BAR COUNCIL OF INDIA

The Bar Council of India disposed of the petition by holding the State Bar Council perfectly justified in the passing of order that was impugned and found unnecessary to interfere in the proceedings of the court. Further, no prima facie case was made out against the respondents and there was no reason to believe that the advocates had committed professional or other misconduct. The appellant dissatisfied with decision has finally approached the SC.

RULES APPLICABLE AND OBSERVATIONS OF THE SC

Chapter V of the Advocates Act, 1961[1] deals with provisions related to the conduct of the advocates. The catch is ‘misconduct’ as a word is not defined in the Act. The provisions applicable are as follows:

SECTION 35 (1) OF THE ADVOCATES ACT, 1961: The usage of words “guilty of professional or other misconduct” has a purpose of giving power to the Disciplinary Committee to decide upon the matter. It empowers the Bar Council with the binoculars as well as whip to be on the qui vive for tracing out delinquent advocates who transgress the norms and standards expected of them in the discharge of their professional duties. Legal profession is centred on the promotion of administration of justice and any act or misdemeanour, or misdeed or misbehaviour infringes this norm, therefore it is regarded as misconduct. The respondent advocates had abused the process of the court and are guilty of misconduct. Also, witnesses were present every time for cross examination, but the advocates concerned had not paid heed to them and instead requested for adjournment.

OSBERVATIONS OF THE SC

The witnesses who had come to court are responsible citizens of the country. Moreover, they have many other tasks to be fulfilled so as to earn a livelihood. They cannot be treated as less respectable and to be told to come again and again to the code just to suit the convenience of the advocates concerned. It is the duty of advocate to make arrangements for examining of the witnesses, if not done so it will be harassment of those witnesses came for cross examination. Tactics of filibuster, if adopted by the Advocates concerned is also a professional misconduct. Further, the expression “reason to believe” is used in the provision for limited purpose as it filter frivolous complaints against the Advocates but this doesn’t mean that Bar Council has power under this provision to discard off genuine complaints of the appellants.

SECTION 36 (2) OF THE ADVOCATES ACT, 1961: To meet the requirement of administering justice the Disciplinary Committee must have adopted necessary steps for disposal of complaint by the appellant but the has not been done in the present case instead the Bar Council supported the advocates.

OBSERVATIONS OF SC

According to section 36 of the Advocates Act, 1961 the SC directed the Disciplinary Committee of the Bar Council to adopt such necessary steps for the disposal of the complaint in accordance with law.

OTHER OBSERVATIONS OF THE SC

CONCEPT OF ‘MISCONDUCT’

The judgement by the SC cited black’s law dictionary for defining the word ‘misconduct’ as the Advocates Act 1961 does not define the same. As per the definition of misconduct it is “a transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, wilful in character, improper or wrong behaviour; its synonyms are misdemeanour, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness.”

Moreover, the expression professional misconduct was attempted to be defined by Darling J. in A Solicitor ex parte the Law Society, in re as “If it is shown that an advocate in the pursuit of his profession has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency, then it is open to say that he is guilty of professional misconduct.”[2] The same definition has been quoted in the case of RD Saxena v. Balram Prasad Sharma.[3] In the present case, the advocates of the respondents acted unprofessionally by pleading unnecessary adjournments as those adjournments would have caused several problems to the Appellant as well as witnesses. The Advocates were found doing professional misconduct in the present case.

DERELICTION OF THE DUTY

According to law, if witnesses have spared time to present themselves in the court of law for the cross-examination process, it is the responsibility of the advocates to record the same and if the Advocate is not able to do so he must make the necessary arrangements for the examination of the witnesses. In the present case the witnesses attended the proceedings in the trial court several times for the purpose of cross-examination, but it was the above-mentioned obligation of the advocates to record their sentences has not been meted out. Instead, the Advocates asked for unnecessary adjournments for the postponing of examination of the witnesses who were present in the court of law, it is sheer dereliction of Duty of the advocates. And if such dereliction is repeated it would amount to misconduct of advocate concerned. The Apex Court cited the case of State of UP v. Shambhu Nath Singh,[4] for defecating the practicing of adjournment of the cases. Moreover, the courts must keep in mind the heavy cost of loss of income of the witnesses while coming to the court of law. The courts must not gain the sadist pleasure by conceding the request of adjournment again and again.

CONCLUSION

“Advocacy is a noble and honourable profession. An advocate must strictly comply with professional ethics or else he may be liable for professional misconduct.”

In the most basic sense, the word “Professional Misconduct” refers to unethical behaviour. Professional misconduct is any activity that goes beyond what the governing body of a discipline considers acceptable or worthy of membership. Advocacy is a noble career in which advocates are the most responsible, privileged, and educated members of society, and their actions serve as role models for the general public. Members of this profession do not promote deception or corruption, but instead should work to ensure that their clients receive justice. Advocates continued to request adjournments, causing the witnesses to be harassed for the purpose of cross-examination. I’m guilty of misbehaving. The Court also looked at Section 35 of the Act, concluding that the provision of “reason to believe” cannot be turned into a formalised procedural roadblock, since it is simply a deterrent to frivolous inquiries. Finally, “misconduct” would encompass any behaviour or conduct that his competent brethren of good repute and competency would fairly consider as disgraceful or dishonourable, as it has been upheld and repeated. It should be remembered that technical interpretations of codes of conduct do not limit the definition of “misconduct,” as this has been shown conclusively.

Author(s) Name: Anchal Kanthed (Nirma University, Ahmedabad)

References:

[1] The Advocates Act, 1961, Chapter V, No. 25, Acts of Parliament, 1961 (India).

[2] Darling J. in Re a Solicitor ex parte the Law Society, (1912) 1 KB 302.

[3] RD Saxena v. Balram Prasad Sharma, (2000) INSC 442.

[4] State of UP v. Shambhu Nath Singh, (2001) INSC 185.