TaxTMI 
TaxTMI 
2001 (5) TMI 876
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....urred. But the Magistrate did not help him. Ultimately, when pressed against the wall, he moved the State Bar Council for taking disciplinary proceedings against the advocates concerned. But the State Bar Council simply shut its doors informing him that he did not have even a prima facie case against the delinquent advocates. He met the same fate when he moved the Bar Council of India with a revision petition, as the revision petition was axed down at the threshold itself. The exasperated witness, exhausted by all the drubbings, has now come before this Court with this appeal by special leave. 3. The appellant, the aforesaid aggrieved witness, describes himself to be an agriculture scientist. He claims to have worked as an advisor in the UNO until he retired therefrom. He filed a complaint before the Judicial Magistrate First Class, Pune (Maharashtra), against some accused for the offence of theft of electricity. The accused in the said complaint case engaged advocate Shri Shivde (the first respondent) and his colleague Shri Kulkarni (the second respondent) who were practising in the Courts at Pune. The two respondent advocates filed a joint vakalatnama before the trial court an....
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....ing out of the Court complex without the case registering even a wee bit of progress in spite of his attending the Court on so many days for the purpose of being cross-examined. His opposite party would have laughed in his mind as to how his advocates succeeded in tormenting the complainant by abusing the process of Court through securing adjournments after adjournments. The complainant would have wept in his mind for choosing a judicial forum for redressal of his grievance. 8. On 20-11-1993, the appellant and all his witnesses were again present, possibly with a certitude that they would be examined at least now, because of the per-emptory order passed by the Magistrate on the previous occasion. Unfortunately, the per-emptoriness of the order did not create even a ripple on the respondents' advocates and they ventured to seek for an adjournment again on the ground that one of the respondent advocate was indisposed. There was not even a suggestion as to what was the inconvenience for the co-advocate. Even so, the Magistrate yielded to that request also and the case was again adjourned to 4-12-1993. 9. The flash point in the cauldron of the agony and grievance of the appellant....
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....y because of severe cough problem. They did not say anything about the large number of occasions they sought for adjourning the cross-examination of the complainant. 13. The State Bar Council obtained a report from its advocate member, Shri B.E. Avhad. That report says that he interrogated the parties and understood that 'the complaint is without any substance.' It was on the strength of the said report that the State Bar Council has dropped further proceedings against the respondents. The revision petition was disposed of by the impugned order holding that 'the Bar Council of Maharashtra was perfectly justified in passing the impugned resolution dated 12-11-1994 and we see no reason to interfere with the same, no prima facie case is made out against the respondents and there is no reason to believe that the advocate had committed professional or other misconduct'. 14. When we heard the arguments of Shri P.H. Parekh, the learned counsel for the appellant, and Shri Vijay S. Kotwal, the learned senior counsel for the respondents, we felt, apart from the question of professional misconduct of the respondents, that the Judicial Magistrate, who yielded to all the procrastinative t....
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....ce, but not negligence or carelessness'. 18. The expression 'professional misconduct' was attempted to be defined by Darling, J. in A Solicitor ex p the Law Society, In re [1912] 1 KB 302, in the following terms : "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." 19. In R.D. Saxena v. Balram Prasad Sharma [2000] 7 SCC 264 - this Court has quoted the above definition rendered by Darling, J., which was subsequently approved by the Privy Council in George Frier Grahame v. Attorney General AIR 1936 PC 224 and then observed thus : "19. Misconduct envisaged in section 35 of the Advocates Act is not defined. The section uses the expression 'misconduct, professional or otherwise'. The word 'misconduct' is a relative term. It has to be considered with reference to the subject-matter and the context wherein such term occurs. It literally means wrong conduct or improper conduct." (p. 275) 20. Advocate abusing the process of Court is....
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....f his judicial powers can be a persuading factor for granting such adjournments lavishly, that too in a casual manner." 22. When the Bar Council in its wider scope of supervision over the conduct of advocates in their professional duties comes across any instance of such misconduct, it is the duty of the Bar Council concerned to refer the matter to its Disciplinary Committee. The expression 'reason to believe' is employed in section 35 only for the limited purpose of using it as a filter for excluding frivolous complaints against advocates. If the complaint is genuine, and if the complaint is not lodged with the sole purpose of harassing an advocate, or if it is not actuated by mala fides, the Bar Council has a statutory duty to forward the complaint to the Disciplinary Committee. 23. In Bar Council of Maharashtra v. M.V. Dabholkar [1976] 2 SCR 48 - a four-Judge Bench of this Court has held that the requirement of 'reason to believe' cannot be converted into a formalised procedural road block, it being essentially a barrier against frivolous enquiries. 24. In our opinion, the State Bar Council has abdicated its duties when it was found that there was no prima facie case fo....