TaxTMI 
TaxTMI 
2010 (12) TMI 1328
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....ith the names of accused persons mentioned therein as under: (i) RC/DST/2010/S/0005 dated 04.11.2010 Under Section: 143, 147, 149, 186, 189, 353, 427, 451, and 506 IPC against Sh. Parshuram Mishra, Advocate, Lucknow and others. Allegation: It was alleged by Shri Raj Kumar, Reader, Judicial Magistrate-II, Lucknow that on 05.03.2008 some advocates damaged window panes, name plate of the Presiding Officer and also damaged notice board and the cause list. On the same day, Smt. Somprabha Tripathi, the then Judicial Magistrate-II, Lucknow also reported that Shri Parshuram Mishra, Advocate, Lucknow alongwith 5-6 other advocates went on a rampage indulging in violence and ransacking her chamber as also obstructing judicial work by slogan shouting. (ii) RC/DST/2010/S/0006 dated 04.11.2010 Under Section 323, 332, 353, 504, 506, 307 IPC, Section 7 C.L.A and Section 3/4 Prevention of Damage to Public Property Act, 1984 against Sh. Shiv Sharan Upadhyay, Advocate and 15-20 other advocates. Allegation: It was alleged that on 06.11.2008 at about 10-10.15 AM Sh. Shiv Sharan Upadhyay, advocate alongwith 15-20 other advocates thr....
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....1.2010 Under Section 419, 420, 467, 468, 471, 500 and 506 IPC against (i) Sh. Kr. Gajraj Singh, Advocate (ii) Sh. A.H. Khan, Advocate (iii) Sh. Raneer Singh, Advocate (iv) Sh. Ravindra Kumar Yadav, Advocate (v) Sh. Ishwar Kant @ Baba (vi) Sh. Anil Singh (vii) Sh. Manoj Kumar Singh. Allegation: It was alleged that Sh. Kr. Gajraj Singh, Advocate, Sh. A.H. Khan, Advocate, Sh. Ranveer Singh, Advocate, Sh. Ravindra Kumar Yadav, Advocate, in connivance with Sh. Ishwar Kant @ Baba, Anil Singh and Manoj Kumar Singh, with intention to grab land measuring 22 Bigha, 13 Biswa and 15 Biswansi, situated in village Bhaudri, District Lucknow, committed forgery by getting sale deed of the said land executed, by impersonating late Ram Prashad Ahuja who had died much before execution of the said sale deed. (vii) RC/DST/2010/S/0011 dated 04.11.2010 Under Section 323 and 504 IPC against Sh. Akbar Hussain @ Sajju S/o Late Asgar Hussain R/o 45, South Bagh, Opp. City Mal Godown, PS Wazirganj, Lucknow and other 2 unknown persons. Allegation: It was alleged by the complainant Sh. Syed Masood Agha that on 04.10.2010 Sh. Akbar Hussain @ Sajjoo, ad....
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.... when he was going to Civil Court in connection with a case he was forcibly stopped by Sh. Prabhakar Rai, advocate and 4-5 others and demanded a sum of Rs. 60,000/-. On refusal, they snatched his case files and Rs. 3,800/-and tore off his gown. He was also assaulted with knife. In the assault he sustained injuries on the middle finger of his right hand. 3. As regards the action taken report submitted by Special Income Tax Investigation Committee, since the nature of investigation is confidential and the process is likely to take some time, it would not be desirable in the interest of justice to refer to any information as contained therein. 4. Now, coming to C.M. Application No. 115366 of 2010 filed by Shri B.P. Pandey, Advocate, on behalf of Abhishek Singh, Advocate, for setting aside the ex parte order dated 28.10.2010 with alternate prayer to assign the Cross FIR 378/2010 dated 22.09.2010 to CBI if the first prayer is not allowed, we may refer to the legal position regarding the arguments on application of provisions of Code of Civil Procedure in the writ matters with prayers for exercise of extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India....
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....rring in Section 141 of the Code. If because of the explanation, proceeding under Article 226 of the Constitution has been excluded, there is no question of making applicable the procedure of Code as far as it can be made applicable to such proceeding. The procedures prescribed in respect of suit in the Code if are made applicable to the writ proceedings then in many cases it may frustrate the exercise of extra-ordinary powers by the High Court under Articles 226 and 227 of the Constitution. 10. On a plain reading, Section 141 of the Code provides that the procedure provided in the said Code in regard to suits shall be followed "as far as it can be made applicable, inall proceedings". In other words, it is open to make the procedure provided in the said Code in regard to suits applicable to any other proceeding in any court of civil jurisdiction. The explanation which was added is more or less in the nature of proviso, saying that the expression "proceedings" shall not include any proceeding under Article 226 ofthe Constitution. The necessary corollary thereof shall be that it shall be open to make applicable the procedure provided in the Code to any proceeding in any cour....
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....ot be impressed that different provisions and procedures under the Code are based on well recognised principles for exercise of discretionary power, and they are reasonable and rational. But at the same time, it cannot be disputed that many procedures prescribed in the said Code are responsible for delaying the delivery of justice and causing delay in securing the remedy available to a person who pursues such remedies. The High Court should be left to adopt its own procedure for granting relief to the persons concerned. The High Court is expected to adopt a procedure which can be held to be not only reasonable but also expeditious. 6. Similarly, in another judgment of Honble the Apex Court in the case of Commissioner of Endowments and Ors. v. Vittal Rao and Ors. reported in : (2005) 4 SCC 120, the aforesaid legal position has been reiterated as under: 17. The High Court while exercising jurisdiction under Article 226 of the Constitution has jurisdiction to pass appropriate orders. Such power can neither be controlled nor affected by the provisions of Order 23 Rule 3 CPC. It would not be correct to say that the terms of Order 23 Rule 3 should be mandatorily complied with....
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....ts, Lucknow and therefore request you to take initiative and clean environment of our courts setting an example against these persons and protect common litigants coming to court for redressal of their grievance. 13. That the deponent is deeply grateful and is obliged towards the senior members of the Bar and fellow colleagues, who encouraged and supported the deponent to take a stand against this growing menace in absence of such support this issue also would be just another incident happening everyday in the subordinate courts. Thus, the averments of petition are essentially not a complaint about an sporadic incident like Petitioners case but primarily against the unruly atmosphere prevailing in the District Court premises which till before our earlier orders (as above) were passed was prominently marked with the incidents of violence indulged into by some criminal elements who had succeeded to a large extent in hijacking the justice delivery system. It has also come to our notice that most of such incidents have remained unreported due to the fear of the said criminal elements. Thus, the situation being emergent, some extraordinary measures were required to dea....
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.... stated at the Bar that there are a few self-proclaimed lawyers (with and without Law degree) with abhorrent criminal records of heinous offences who have formed some small groups comprising of such members of the District Bar who also have the criminal bent of mind. They are working like Mafia dons by recruiting and indoctrinating the young lawyers, with weak financial back grounds or personal weaknesses into the crimes-world and forcing them to become a misguided lot of the Bar with assurance to get them quick bucks with all the modern luxuries of life. They have virtually taken over the control of legal profession by wreaking vengeance and unleashing terror against the lawyers, litigants, police officers, administrative officers and the members of public, who have till date only remained defensive and on the receiving end. It is also informed that in the past few years, these criminal elements in the Bar have also misused the courts premises on the strength of muscle powers, for carrying out illegal activities and the occupations other than the legal profession like property dealing/grabbing and taking all types of contracts including the contracts for assaulting the litigants, ....
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....the results and deal with these cases effectively without inviting complaints and criticism. Hence, now the only course left to the Court is to look out for the central police agencies for assistance to the court which alone can under the present circumstances carry out the directions of this Court impartially and independently. Thus, we direct the Joint Director, Intelligence Bureau, Regional Office Lucknow, to submit his report in a sealed cover about the criminal activities being indulged into and carried out by the members of District Court Bar from inside and outside the court premises having reflections on the functioning of Bar and courts in the light of and on the line of the aforesaid reports and complaints. The local Intelligence Unit (LIU) of the State Police shall render all necessary assistance, and submit the complete materials/ information available with it to the Joint Director, Intelligence Bureau. The Deputy Inspector General of Police-cum-S.S.P. and the District Magistrate, Lucknow, shall also furnish the entire records available in their offices and with the Lucknow District Police relating to such cases as aforesaid to the Joint Director, Inte....
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....gth of Bar, from any type of interference of the kind as alleged in the complaints, in pursuing and practicising the legal profession. Learned Advocate General, Officers of the police and civil administration and office bearers of the Bar Associations, who are present today, shall also remain present on the next date of hearing. List on 25.10.2010 at 2.00 P.M. Matter to remain part heard. The Registrar shall communicate this order to all the concerned authorities at the earliest by fax for compliance. 05.10.2010 Honble Uma Nath Singh,J. Honble Virendra Kumar Dixit,J. Copies of written submissions on behalf of learned Attorney General for India and Union Law Secretary, and also on behalf of I.B. (Subsidiary Intelligence Bureau) U.P., filed and referred to during the course of Court proceedings, are taken on record. On request of learned Additional Solicitor General of India, personal appearance of learned Attorney General for India is dispensed with until further orders. In Para 7 of the written submissions on behalf of I.B., it is averred as follows: 7. That the concern of the Honble Court regarding criminal activities ....
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.... India can take up this issue and advise the Government of India to bring a suitable legislation by way of amendment in the Advocates Act. In response thereto, learned Additional Solicitor General, assured the Court to bring these points to the notice of learned Attorney General for his views. Learned Additional Solicitor General shall also submit requisite data in detail about the disciplinary proceedings and their outcome since 1963, when a leading judgment on lawyers misconduct was pronounced as reported in : AIR 1963 SC 1313. At this stage, learned Additional Solicitor General of India, Dr. Ashok Nigam, prayed for constituting a Special Investigation Team (SIT) to investigate the criminal cases pending against the criminal elements of Bar as referred to in the report of Learned District and Sessions Judge, Lucknow, and the complaints addressed to this Court. Thus, we direct the constitution of a SIT to be headed by Joint Director of Central Bureau of Investigation, Shri O.P. Galhotra, who is present in Court, which shall comprise the members of Special Task Force of U.P. and the paramilitary forces of the Central Government in order to conduct the investigatio....
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.... 1. Unique Identification Number [UIN]: On 26th September 2010, the Executive Committee of the Bar Council of India approved the proposal for Unique Identification Number. Aim is to track students from the time he joins a law course-becoming graduate-enrollment as an advocate-passing of AIBE-disciplinary action (if any)-years of experience in the Bar. UIN would be alpha numeric number. When a student joins a law college he would be given an identification number and another set of alpha numerals would be added to it once he graduates and enrolls with a Bar Council and alpha numerals would be further added after clearing AIBE etc. The Bar Council of India and State Bar councils would maintain all the details starting from a student joining law college/university. This would entitle the Bar Council to track the history of a lawyer starting from the law college he studied till the present status. The lawyer would further need to use this UIN in his or her Vakalathnamas and an improper UIN or number would not entitle one to file a Vakalathnama. This would in turn help tracking the quacks in the profession because UNI would directly track the details/history of the lawyer. The Ba....
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....hall have the right to practice and the circumstances under which a person shall be deemed to practice as an advocate in a court." Consequent to the resolution, the rules of the All India Bar Examination were inserted into Part VI, Chapter III of the Bar Council of India Rules and duly notified in the Gazette of India on June 12, 2010. The examination is scheduled on December 5, 2010. The examination will be of 3.30 hours duration and will consist of 100 objective questions on various different legal subjects both substantive and procedural laws, that are taught by law schools in accordance with Legal Education Rules, 2008. The AIBE shall be an open book examination and the candidates are allowed to carry the preparatory materials, books or any materials they wish except for electronic devices like pagers, cell phones etc. The AIBE will be conducted in nine languages, and the preparatory materials sent to each candidate will be in the same language as the one they choose to write the AIBE. The AIBE shall be conducted at 27 cities across India-in a major city in most states in India. Upon successfully clearing the AIBE, an advocate will be permitted to pra....
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.... This would help lawyers a lot in this stressed out and highly demanding profession. 6. Ethics Division: The Bar Council of India proposes to constitute a Ethics Division under the leadership of Attorney general of India. The Bar Council of India has drafted a new set of detailed Code of Ethics which is required to be followed by Advocates. This code contains (i ) an advocates duty in connection with briefs, (ii) an advocate s duty to the court, (iii) an advocates duty to the client, (iv) an advocates duty to the opponent, (v) an advocates duty to colleagues (vi) an advocates duty to impart training, (vii) an advocates duty to render legal aid, (viii) restriction on employments undertaken by advocates and (ix) general duties. The Code also lays down the standard of presentation before a court, prohibition on misleading statements, maintenance of confidentiality and privilege, standard to be followed in cases of conflict of interest and remuneration and professional fees. Furthermore, the new Code emphasizes that an advocate is expected to conduct himself/herself with honesty, dignity and self-respect. An advocate is expected to treat opposing advocates and all wit....
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.... was coming out from the Court on 21.08.2010. He was reportedly forced to compromise the case under duress. (iv) The incident referred to at Para-13 of the report of learned District & Sessions Judge, Lucknow, pertaining to a group of advocates assaulting an advocate, snatching valuables and tearing off his clothes, on 06.09.2010. The criminal case about the incident is reported to have been closed by police. (v) The incident referred to at Para-16 of the report of learned District & Sessions Judge, Lucknow, pertaining to a group of advocates attempting to close the court rooms and offices of the District Court campus who went on rampage and man handling the officials and other personnel of the court, and ransacking the courts on 27.09.2010 and 28.09.2010. (vi) The incident referred to at Para-17 of the report of learned District & Sessions Judge, Lucknow, pertaining to land grabbing by a group of lawyers by impersonation and forgery. (vii) The incident referred to at Para-18(iv) of the report of learned District & Sessions Judge, Lucknow, pertaining to a complaint by a private person against lawyer alleging physical violence on him while he was ....
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....Lucknow, and other Government offices relating to the cases of land grabbing. They shall investigate into acquisition and possession of properties and also the financial resources with reference thereto, evasion of tax and the consequent penalties and confiscation etc. They shall be provided all the logistic support including the members of SIT in conducting raids during the course of search and seizure under the Income Tax Act. We also direct the Chief Secretary, Principal Secretary (Home), Principal Secretary (Law), Principal Secretary (Revenue), and Director General of Police, U.P., to provide all infrastructural and logistic support to SIT of CBI and Chief Commissioner of Income Tax in discharge of their duties as and when it is so requested by them. Shri Jyotindra Mishra, learned Advocate General, assures the Court that the State Government shall provide all necessary help and full support as indicated hereinabove to SIT of CBI and Chief Income Tax Commissioner in discharge of their duties. Shri I.H. Farooqi, learned Assistant Solicitor General of India appearing for Law Commission of India and Union Law Secretary assures the Court to place on record....
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....incidents of violence that occurred inside the court premises, to the SIT (CBI). Since the case against applicant Abhishek Singh also comes in that category, therefore, it has been given to SIT (CBI) for investigation. 10. We may also clarify that when the complaint of Petitioner was entertained on judicial side, notices were issued to: (1) Advocate General, U.P., (2) Director General of Police, U.P., (3) District Collector, Lucknow, (4) DIG/SSP, Lucknow, (5) President and Secretary, Central Bar Association, and (6) President and Secretary, Lucknow Bar Association. 11. In view of notices to aforesaid authorities including the office bearers of the District Bar Association, it was a notice to all the members of the said Bar Associations and further, the aforesaid orders were passed in the jam-packed court room. That apart, the matter is only at investigation stage and the applicants rights as an accused to defend his case are not hampered or defeated in any manner by these three orders passed by this Court and such rights are well protected under the provisions of Cr.P.C and other enactments dealing with the subject matter. 12. In his application (C.M.A. No. 120218 of 2010)....
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....any, in a criminal case. The applicant is only required to produce a character certificate testifying the fact that "he bears a good moral character and a fit and proper person to be admitted as an Advocate. Re: Conduct of advocates Section 35(1) lays down that if a State Bar Council on the basis of a complaint or otherwise is satisfied that an Advocate on its roll has been guilty of professional or other misconduct, it shall refer the case to its Disciplinary Committee. The Disciplinary Committee after giving opportunity of hearing to the Advocate concerned can dismiss the complaint or reprimand the Advocate or suspend the advocate from practice for a specified period or remove the name of advocate from the State roll. The disciplinary committee of State Bar Council is required to dispose of the complaint expeditiously and in any case the proceeding shall be concluded within one year. Section 36 deals with disciplinary powers of Bar Council of India. Sub-section (2) of Section 36 empowers the disciplinary committee of BCI either on its own motion or on a report by State Bar Council or on an application made to it by any interested person withdraw for inquiry befo....
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....ted out that s. 35 of the Advocates Act uses the expression "professional or other misconduct" which apparently takes within its sweep the misconduct unconnected with the profession also. Further, attention is drawn to the preamble to Chapter II of Part VI of the BCI Rules according to which an advocate is expected to "comport himself in a manner befitting his status as an officer of the Court, a privileged member of the community and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar, or a member of the Bar in his non-professional capacity may still be improper for an advocate." 5. Simultaneously, a nominated Judge of High Court and the District Judge concerned may monitor and take necessary steps for the expeditious conclusion of investigation and trial of the criminal cases involving advocates. It is of utmost importance that the investigation into cases involving the advocates and the trials of such cases are completed without unnecessary delay. Priority ought to be given to such cases. The reasons for delay including the dilatory tactics adopted by the accused advocate should be brought to the notice of High Cour....
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.... any disciplinary action that may be initiated by the Bar Council. In appropriate cases, directions can be given to Bar Council to hold an inquiry under s. 35, as has been done by the Supreme Court in WP(Civil) No. 494 of 2008 (vide order dated 30th July, 2010). The mere pendency of criminal case may not be a bar to initiate disciplinary action. 9. There is another important aspect which needs attention. S. 34 of the Advocates Act empowers the High Court to make rules laying down the conditions subject to which an advocate shall be permitted to practise in the High Court and the courts subordinate thereto. This section has been given a restricted meaning confining it to the appearance in courts. A distination has been drawn between the right to practise and the right to appear in courts. In other words, the High Court in exercise of its powers under Section 34 read with Rules cannot debar the delinquent advocate from practising, though if he/she is found guilty of contumacious conduct or of an offence/professional misconduct involving moral turpitude, the High Court can prevent the appearance of such person in the court on behalf of the client. 10. A Constitution ....
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....ot have anything to do with the disciplinary jurisdiction of Bar Councils. It would be concerning the dignity and orderly functioning of the Courts. (p. 757 of AIR) (emphasis supplied) 12. Some of the observations made in the recent case of RK Anand : 2009 8 SCC 106 are also relevant in this context: The observations at pages 238 and 239 may kindly be perused. At para 239, the Honble judges said: We may also add that these illustrations are not exhaustive but there may be other ways in which a malefactors conduct and actions may pose a real and imminent threat to the purity of Court proceedings cardinal to any Courts functioning, apart from constituting a substantive offence and contempt of Court and professional misconduct. In such a situation the Court does not only have the right but also the obligation to protect itself. Hence, to that end it can bar the malefactor from appearing before the Courts for an appropriate period of time. 13. In tune with the above observations made in Harish Uppal and RK Anand, the Honble High Court may consider framing appropriate rules under Section 34. Whether or not the advocate had conducted himself i....
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.... of the Advocates Act. 15. We are fully satisfied with the impartial investigation being carried out by the SIT (CBI) and the Special Income Tax Investigation Committee but we need to ponder over and introspect as to what went wrong that a day has come when we are compelled to use stringent measures for getting over and containing the State of Lawlessness in the District Courts premises. The one and the only major cause that seems to be a great attraction is the earning out of landed properties deals. It is the landed properties deals that have given birth to the offences like land grabbing, fraudulent transactions in property dealing and the violence in Courts. Not only that but it has also provided the anchor for committing other major offences inside and outside the District Court premises. That apart, realty sector has now become a major area to attract the investment of black money and the evasion of income tax. The different estimates of quantifying the unaccounted wealth/income which are circulating or invested in the reality sector of India, put the figure varying from 1/3rd of the G.D.P. to equivalent of G.D.P. In spite of various legislations and drives to curb the flo....
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....ld also grow many folds once the true value of sale is disclosed at the exchange and a legislation to collect Tax at Source (TCS) is implemented to be paid by the seller, which can be collected and deposited by the exchange into the Central Exchequer; (xi) for the present, there are a lot of litigation for arriving of the value of the any property whether it is for Direct Taxes purposes or for institutional finance purposes, as the methods of valuation can be challenged easily. The ambiguity in the assessment of the valuation officer (Government or Private) will be completely ruled out since the markets would fix the price and it would be dynamic and real; (xii) greater transparency in property deals would give options to the security and investigation agency to monitor non obtrusive investments by dubious elements. Proposed organization structure of the Land Exchanges (Lex) 1 A three tier arrangement for these exchanges is proposed at the national, state and the district level. 2 There will be a regulatory authority at the national and the state level to observe the functioning of these exchanges which will set the guidelines for day to day operations and also....
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....h the network of its fanchisees i.e. NSDL, UTI. This network of the department can be utilised and hosted on a separate server alongwith the date from the State Government repository of land records and the complete district wise database of the immovable property of the holdings can be uploaded on a customized software for hosting and trading purposes. The existing circle rate and the standard used by the sub registrar for determining the value of a immovable property for stamp duty purposes can serve as the reserve base price for initial trading. This would provide a virtual auction platform for property transaction giving a better deal to the owners. 2 Clients proposing to undertake a transaction can either open an individual "Propmat" account or trade through registered broker/sub broker using a escrow account. 3 There is an existing fleet of personnels with the Direct Taxes department of the Central Government and that of the Sub-registrar/Registrar at the state level who can jointly man offices of these exchanges at the state/district level. These officers, particularly those from the Direct Tax department are particularly oriented towards evaluating transac....
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.... appears that for the present Income Tax Department may be finding it very difficult to implement the provisions of Section 50C of the I.T. Act, 1961 which mandates the payment of capital gains on transactions where in the sale consideration is lower then the value as prescribed for stamp duty purposes. This is primarily so due to the fact that the seller of the property is in most of the cases, not assessed to income tax and cannot be traced at the address in the sale records. For this it may be proper that a Tax Collection at Source (TCS) be legislated at the point of transfer of immovable assets which can be collected by the Registrar of property from the seller at the time of transfer. (c) An effort was made in the Finance Act 2009, to bring the buyer of a immovable property if he was transacting for a consideration which was less than the stamp duty value of the property by an amount exceeding Rs. 50,000/-, w.e.f. 01.10.2009 by amending Section 56 of the I.T. Act, 1961, however, this provision was withdrawn in the finance Act 2010 with retrospective effect. This provision was a good deterrent for the buyer for desisting from transacting in immovable property at rates ....