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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2792 OF 2010

Kumari Achal Saxena (D) & Anr.

…. Appellants

Versus Sudhir Yadav

.... Respondent

JUDGMENT

A.M.KHANWILKAR, J. 1.

Heard Mr. Bikash Kumar Sinha, learned counsel for the

appellants and Mr. Abhishek Singh, learned counsel for the respondent.

Signature Not Verified

2.

Digitally signed by ASHOK RAJ SINGH Date: 2017.03.11 13:38:50 IST Reason:

The appellant no.1 filed a complaint on 29.06.2005 against the

respondent advocate. On receipt of that complaint, an office report

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dated 17.12.2005 was prepared and placed before the Bar Council of Uttar Pradesh (for short, ‘State Bar Council’). The State Bar Council vide its Resolution No.2702/05 dated 18.12.2005, decided to refer the complaint to the Disciplinary Committee. On reference made to the Disciplinary Committee of the State Bar Council, it took cognizance of the complaint on 15.01.2006. 3.

In the said complaint,

it was alleged that the respondent

advocate who was staying in the neighborhood and had good relations with the family of the appellants, took original certificates, photographs, and signature of the appellant no.1 on some blank papers on the pretext that he will register her name with the Employment Exchange. It is also alleged that the respondent got a joint photo of himself with the appellant no.1. Because of some dispute between the parties, the appellant no.1 called upon the respondent to return her original certificates and blank signed papers. The respondent then started blackmailing the appellants and their father. The respondent also threatened the appellants and demanded a sum of Rs.1 lac. On refusal to make payment, he surreptitiously filed an application in the name of appellant no.1

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along with a forged caste certificate mentioning the appellant no.1 as his wife. The respondent then registered a false criminal case against the appellants for offences punishable under Sections 420, 467, 468, 471 and 506 of IPC. He also filed a complaint against the appellants, their father and one Shri R. C. Pandey, under Section 500 of IPC. The appellant no.2 was arrested in connection with the criminal case and later released on bail after a month. Besides the criminal cases, it is alleged that the respondent fraudulently moved an application on behalf of appellant no.1 before the Dowry Prohibition Officer, Rampur on 13.05.1998 against himself. That was dismissed on 1st July, 1999 due to non-appearance of appellant no.1. It is also alleged that the respondent was blackmailing the appellant no.2, who was working as a Clerk in the District Development Office, Rampur. The thrust of the allegations in the complaint was about the fraudulent activities of the respondent, including an attempt to blackmail the appellants and their family members for ulterior purposes. 4.

The complaint proceeded before the Disciplinary Committee of

the Bar Council of U.P. as D.C. Case No.122/2005. The Disciplinary

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Committee vide order dated 23.12.2006 accepted the allegations made against the respondent;

and awarded him a punishment

under Section 35 (3) (d) of the Advocates Act, 1961 (for short “the said Act”), directing removal of his name from the State Roll of Advocates. 5.

This decision was challenged by the respondent before the Bar

Council of India by way of D.C. Appeal No.4/2008. The Disciplinary Committee of the Bar Council of India vide order dated 21.01.2010 allowed the appeal filed by the respondent and set-aside the order passed by the Disciplinary Committee of the State Bar Council dated 23.12.2006. The Bar Council of India, being the Appellate Authority, accepted the contention of the respondent that the Disciplinary Committee of the State Bar Council could not have proceeded with the inquiry after lapse of one year, in view of Section 36-B of the Act. On perusal of the record, the Appellate Authority found that a false order sheet was prepared by the Disciplinary Committee of the State Bar Council and the possibility that the inquiry was conducted only by one Member of that Committee could not be ruled out. The Appellate Authority also noted that the

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appellants herein could not deny that position. The appellants, however, contended that any irregularity committed by the Disciplinary Committee of the State Bar Council ought to be ignored in light of Section 13 of the Act. That contention has been negatived by the Appellate Authority on the finding that there was no dispute about the proper constitution of the Disciplinary Committee of the State Bar Council. Further, Section 13 of the Act will not apply for ignoring the gross illegality committed on account of only one Member of the Disciplinary Committee conducting the inquiry. The Appellate Authority then noted that the complainant had submitted a written application on 03.11.2006 for withdrawal of her complaint against the respondent. The Disciplinary Committee of the State Bar Council, however, proceeded with the matter and that too without giving a fair opportunity of hearing to the respondent including an opportunity to cross examine the witnesses. The Appellate Authority also noted that the respondent was never engaged as an advocate by the appellants before any Court of law or at any point of time. The Appellate Authority then noted that a transfer application along with an affidavit was filed by the respondent on 11.07.2006, against the Disciplinary Committee of

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the State Bar Council. That was received in the office on 17.07.2006. However, no order was passed on the said transfer application. Noticing these deficiencies,

the Appellate Authority

held that the respondent was seriously prejudiced in the inquiry held by the Disciplinary Committee of the State Bar Council and therefore, allowed his appeal by setting aside the order of the Bar Council of U.P. dated 23.12.2006.

6.

The appellants have challenged the aforementioned decision of

the Bar Council of India. 7.

After considering the arguments of both sides at length, we

are of the opinion that the Appellate Authority (the Bar Council of India) has rightly held that the Disciplinary Committee of the State Bar Council could not have continued with the inquiry after expiry of one year from the receipt of the complaint

and therefore, the

order passed on 23.12.2006, by the Disciplinary Authority of the State Bar Council was illegal.

8.

We agree with the Appellate Authority that in view of Section

36-B of the Act, the State Bar Council was obliged to transfer the

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inquiry to the Bar Council of India after expiry of one year from the receipt of the complaint. Admittedly, the appellants had submitted the complaint to the State Bar Council on 29.06.2005. On receipt of that complaint, an office report was prepared on 17.12.2005 and the matter was placed before the State Bar Council, which in turn decided to refer the dispute to the Disciplinary Committee (vide its Resolution No.2702/05 dated 18.12.2005). Indeed, the Disciplinary Committee took cognizance of the said complaint on 15.01.2006. However, the mandate of Section 36-B of the Act is that the Disciplinary Committee of the State Bar Council is obliged to dispose of the complaint received by it under Section 35 expeditiously and in each case, the proceedings must be concluded by it within a period of one year from the date of the receipt of the complaint or the date of initiation of the proceedings at the instance of the State Bar Council, as the case may be. Failing which the State Bar Council is obliged to transfer the inquiry to the Bar Council of India. In the present case, a formal application was filed by the respondent on 11.07.2006 for transfer of the complaint. However, no order was passed on the said transfer application. Considering the fact the State Bar Council passed a Resolution on

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18.12.2005, whereby it decided to refer the complaint to its Disciplinary Committee, the Disciplinary Committee ought to have ensured the disposal of the proceedings within one year therefrom i.e. before 17.12.2006. The inquiry in the present case, however, was

concluded by the State Bar Council on 23.12.2006,

consequent to the pronouncement of the order of its Disciplinary Committee. Accordingly, the view taken by the Appellate Authority in the impugned judgment on this count is unexceptionable.

9.

The Appellate Authority has also noted that in fact on

03.11.2006,

the appellant no.1 had given in writing

that she

wanted to withdraw the complaint. The matter was adjourned on that date, but the respondent was slapped with the order dated 23.12.2006 passed by the Disciplinary Committee of the State Bar Council. The Appellate Authority after going through the record has also noticed that the possibility of a false order sheet having been prepared; and that the proceedings were actually conducted only by one Member of the Disciplinary Committee of the State Bar Council, cannot be ruled out. The Appellate Authority has noted in the

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impugned decision that the advocate appearing for the appellants herein was unable to dispute that position.

10.

The Appellate Authority has also found that the Disciplinary

Committee of the State Bar Council did not offer an opportunity of hearing to the respondent including to cross examine the witnesses, which was fatal and caused serious prejudice to the respondent in his defence during the inquiry. These findings recorded by the Appellant

Authority,

interference.

in

our

opinion,

do

not

warrant

any

In other words, the Appellant Authority was justified

in allowing the appeal preferred by the respondent; and for setting aside the order passed by the Disciplinary Committee of the State Bar Council.

11.

Although we have upheld the impugned decision of the Bar

Council of India dated 21.01.2010, however, as criminal cases have been filed by the respondent against the appellants and their family members, it would be expedient, just and proper to close those criminal cases, if still pending. To do substantial justice to the parties before us, we direct that if any criminal case instituted or

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registered at the instance of the respondent against the appellants or their family members is pending, the same shall be treated as having been quashed in terms of this order. We order accordingly.

12.

The appeal is disposed of in the above terms. No order as to

costs.

…..……………………………..J. (Dipak Misra)

.…..…………………………..J. (A.M.Khanwilkar) ..…..……………………………J. (Mohan M. Shantanagoudar) New Delhi, Dated: March 2, 2017

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COURT NO.2 SECTION IIIB S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Civil Appeal No(s). 2792/2010

KUMARI ACHAL SAXENA (D) & ANR.

Appellant(s) VERSUS

SUDHIR YADAV Respondent(s) (with appln. (s) for substitution of deceased petitioner and c/delay in filing substitution appln.) Date : 02/03/2017 This appeal was called on for hearing today. CORAM : HON'BLE MR. JUSTICE DIPAK MISRA HON'BLE MR. JUSTICE A.M. KHANWILKAR HON'BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR For Appellant(s) Mr. Mr. Mr. Mr. Mr.

Pankaj Kumar Singh, Adv. Mukesh Verma, Adv. Pawan Kumar Shukla, Adv. Bikash Kumar Sinha, Adv. Yash Pal Dhingra, Adv.

For Respondent(s) Mr. Braj Kishore Mishra, Adv. UPON hearing the counsel the Court made the following O R D E R The civil appeal is disposed of in terms of the signed non-reportable judgment. Pending

applications,

if

any,

also

stand

disposed

accordingly.

(Ashok Raj Singh) Court Master

(H.S. Parasher) Court Master

(Signed non-reportable judgment is placed in the file)

of