State Bar Council's Opinion On Alleged Misconduct Doesn't Curtail Disciplinary Committee's Power To Examine Maintainability Of Complaint: Calcutta HC

The Calcutta High Court has recently held that in an alleged case of misconduct, the mere formation of opinion by a State Bar Council that it has reason to believe that the accused advocate may be guilty of professional or other misconduct does not necessarily curtail the powers of the Disciplinary Committee to deal with the issue of maintainability of the complaint.

A single bench of Justice Sabyasachi Bhattacharya held: 

There may be umpteen cases where the State Bar Council may have reason to believe that the advocate may be guilty of misconduct but upon reference to the Disciplinary Committee, the Disciplinary Committee upon a scrutiny finds that the complaint is not maintainable, having not disclosed any clear-cut violation of any law or ethics amounting to professional or other misconduct by the advocate.

These observations came in a plea moved by the petitioner, who had lodged a complaint against the private respondents, before the West Bengal State Bar Council on 3rd November 2023. 

The petitioner argued that the cutoff date envisaged under Section 36B of the Advocates Act, 1961, for disposal of such complaints, was one year from the date of receipt. It was pointed out that overshooting such a date would result in the proceedings being automatically transferred to the Bar Council of India under Section 36B(1).

In the present case, it was argued that the statutory period of one year had and the matter must be transferred to the Bar Council of India. It was contended that the orders passed after the cut-off date of one year by the State Bar Council were bad in law.

It was contended that the Council had referred the matter to the Disciplinary Committee (DC) to examine the maintainability of the complaint and that it was beyond the jurisdiction of the DC to decide on such an issue. 

Counsel for the petitioner relied on Section 35(1) of the Advocates Act to argue that such a reference to the DC presupposes the fact that the Council had a "reason to believe" that the accused may be guilty of misconduct, and hence it implies a preliminary adjudication on the question of maintainability. 

Counsel for the respondents, on the other hand, argued that the commencement of the one year period was from the date of receipt of the complaint not by the state bar council, but by the DC. 

Counsel argued that in this case, the one-year period had only commenced when the complaint was received by the DC in August 2023, and not when it was received by the state bar council in November 2022.

It was further argued that in the absence of the existence of jurisdictional facts which would constitute a complaint under Section 35 of the Act, the petitioner's complaint should itself be dismissed as non-maintainable. 

It was thus reiterated that the DC had ample power to decide on the issue of maintainability on an examination of whether jurisdictional facts exist in the complaint. 

Upon hearing both sides, the Court looked at the Advocates Act and the Bar Council of India Rules. It found that Section 36B(1) stipulated that it was the DC and not the bar council which shall dispose of the complaint received under Section 35 within one year from the date of receipt of the complaint. 

It was further held that since the proceedings were not initiated suo motu, the date on which the proceedings were received by the Disciplinary Committee would be the date from which the one-year period would commence. 

Thus, by necessary implication, the date of reference by the State Bar Council to the Disciplinary Committee under Section 35(1) which is, in the present case, in the month of August, 2023 is the relevant date from which the stipulated one year commences, it was held.

On the question of whether the DC could decide on the maintainability of such complaints, the Court held that a reading of the Advocates Act, and BCI rules would clearly show that the State Bar Council only forms a preliminary opinion as to the alleged professional or other misconduct.

It was observed that the mere formation of an opinion by the bar council under a "reason to believe" that the accused was guilty of misconduct, would not be a fetter for the DC to examine the maintainability of the complaint itself. 

Accordingly. it was held that irrespective of the reference by the state bar council, the DC could independently decide on the complaint based on preliminary hearings, as well as examine the question of maintainability irrespective of the opinion of the state bar council.

Thus it was found that the state bar council was justified in referring the matter to the DC, and the petition was dismissed with the Court noting that the DC would continue to exercise its jurisdiction only until the expiry of the one-year statutory period under Section 36B. 

Citation: 2023 LiveLaw (Cal) 345

Case: Somabrata Mandal v Bar Council of West Bengal and others

Case No: W.P.A. No. 26174 of 2023

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