Advocates Act | State Bar Council Must Have 'Reason To Believe' Before Issuing Notice To Lawyer On Complaint Of Misconduct: Punjab & Haryana HC

The Punjab & Haryana High Court has made it clear that under the Advocates Act, the State Bar Council must have “reason to believe” that an advocate against whom a complaint is made is guilty of professional or other misconduct before issuing notice to him.

According to Section 35 (Punishment of advocates for misconduct) of the Advocates Act, where on receipt of a complaint or otherwise a State Bar Council has "reason to believe" that any advocate on its roll "has been guilty of professional or other misconduct", it shall refer the case for disposal to its disciplinary committee.

The disciplinary committee shall fix a date for the hearing of the case and shall cause a notice thereof to be given to the advocate concerned and to the Advocate-General of the State. After hearing the advocate the disciplinary committee of a State Bar Council after giving the advocate concerned and the Advocate-General an opportunity of being heard, may dismiss the complaint, reprimand the advocate, suspend the advocate from practice or remove the advocate's name from the State roll of advocates.

Justice Sureshwar Thakur and Justice Vikas Suri quashed a notice issued by the Disciplinary Committee stating to appear before it, against an advocate who allegedly was guilty of professional misconduct.

The Court said that the reason for incorporating the "reason to believe" condition under Section 35 was to ensure "unnecessary and frivolous complaints, rather do not become lodged against any counsel."

It added further that, "holistic objective, thus is behind the incorporation of the above statutory necessity, inasmuch as, on receipt of the complaint by the State Bar Council concerned, the latter initially forming “reasons to believe” about the advocate, on its rolls being prima facie guilty of professional or other misconduct, whereafters alone the apposite reference, to the disciplinary committee concerned, for an adjudication being made on the relevant complaint, but would be a validly made reference."

In the present case, the Court noted that before issuing notice against the advocate, the State Bar Council was required to fulfil the "statutory necessity".

"However, yet when there exists no evidence on record, suggesting that prior to the issuance of (notice) the State Bar Council had formed “reason to believe”, that the petitioner who was on its rolls, thus was prima facie guilty of professional or other misconduct," it added.

Speaking for the bench Justice Sureshwar Thakur opined that, since the requirement of “reason to believe” was not fulfilled, hence the disciplinary committee of the bar was not empowered to issue the notice.

Reliance was placed on the Supreme Court's decision in Nandlal Khodidas Barot V. Bar Council of Gujarat and others' (1980) to underscore that the State Bar Council not only receives a complaint but is required to apply its mind to find out whether there is any reason to believe that any advocate has been guilty of professional or other misconduct.

Consequently, the bench concluded that, "As such the issuance of the impugned notice...is a defectively issued notice upon him. The reason for so stating becomes grooved in the obvious ground, that it remains unpreceded by adherence being made, to the (supra) statutory precursor, inasmuch as, no reason to believe becoming formed by the State Bar Council concerned, thus unfolding that the complaint...discloses that the present petitioner is prima facie guilty of professional or other misconduct. Resultantly, the (notice) lack makes the impugned show cause notice to be completely vitiated."

In light of the above, the Court quashed the complaint of professional misconduct, the notice and all consequential proceedings against the advocate.

Mr. Naresh Dilawari (Petitioner in person)

Mr. B.S. Rana, Senior Advocate with Mr. Nayandeep Rana, Advocate and Mr. Manav Dhull, Advocate

for respondents No.1 and 2.

Mr. Jasdev Singh Brar, Advocate for respondent No.3.

Mr. Yogesh Goel, Advocate for respondent No.6 (in person)

Mr. Deepak Goyal, Advocate for respondent No.8 (in person)

Mr. Vipul Goel, Advocate for respondent No.9 (in person).

Title: Naresh Dilawari v. Bar Council of Punjab and Haryana and others

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