This paper will comment on the significant decision of the Hon’ble Supreme Court in Vikas Deshpande v Bar Council of India,1 dismissing the appeal by an advocate who was banned from practicing and fined by the Bar Council of India for ‘gross professional misconduct’. The comment will take a look at the facts that constituted the misconduct and the possible reasons behind the Supreme Court’s decision. Case Comment Facts in Brief
In this case, an appeal was filed by Vikas Deshpande, advocate, hereinafter referred to as ‘the appellant’, under Section 38 of the Advocates Act, 1961 – for short ‘the Act’ – against the final order passed by the Disciplinary Committee of the Bar Council of India. By the impugned order the Bar Council of India permanently debarred the appellant from practising as an advocate for the commission of a grave professional misconduct and also imposed the cost of Rs. 25,000.
Ramrao Chandoba Jadhav, Vidyadhar Ramrao Jadhav, and Chandrakant Ramdeo Jadhav (all deceased), hereinafter referred to as ‘the complainants’, were prosecuted for committing murder of six persons on 16th December, 1990. As they were extremely poor, they asked the Court to appoint a lawyer to represent them free of cost as amicus curiae. Sessions Court after trial found the complainants guilty of the offence charged with and awarded them death penalty by an order dated 30th August, 1991. On the same date the appellant contacted the complainants in Yervada Central Prison where they were lodged.
Appellant took the copies of the judgment from the complainants and obtained their thumb impression and signatures on the Vakalatnama to prefer an appeal in the High Court of Bombay at Aurangabad Bench. Appellant told the complainants that he would not be charging any fee as he was doing this to make a name for himself. On 10th October, 1991 appellant visited the Yervada Central Prison again and obtained their signatures on some stamp papers. The deed was not read over to the complainants nor were the contents made known to them. Complainants signed and put their thumb impression on the documents in good faith.
In January, 1992 the High Court dismissed the appeal of the complainants and confirmed the death sentence and subsequently complainants were hanged to death. On 16th February, 1992, appellant met the complainants in Yervada Central Prison again and told them that he had sold their land on the basis of power of attorney executed in his favour by them authorising him to sell the land. That he had appropriated the money received by him towards his fees. Further the appellant asked the complainants to authorise him to prefer an appeal to the Supreme Court which they declined.
Thereafter the complainants filed a complaint with the Chairman, State Bar Council to the effect that the appellant who was practising as an advocate at Nanded, Maharashtra committed an act which amounted to professional misconduct within the meaning of Section 35 of the Advocates Act and for the said act disciplinary action be taken. They had requested for the appointment of an advocate as amicus curiae to defend them to leave their property for the surviving members of the family in case the complainants were sentenced to death.
They stated that they had never authorised the appellant to sell their land. That the appellant had played fraud on them and sold the property on the basis of the alleged power of attorney obtained by him through misrepresentation. Appreciating the seriousness of the complaint made by the complainants, State Bar Council took suo motu cognizance and issued notice to the appellant who filed his reply. He described himself to be an expert criminal lawyer as he had conducted many sessions trials and appeals.
It was pleaded by him that he had also engaged some other lawyers as well and he was trying his best to pay the fees of the said advocates by selling the land of the complainants. It was further stated that on the request of the complainants on 30th August, 1991 he accepted the vakalatnama on behalf of the complainants on an oral agreement that the complainants would pay Rs. 50,000 to the appellant for conducting the confirmation case and the appeal before the High Court, for which they authorised him to dispose of their land to recover and appropriate the money received.
That out of 16 acres of land owned by the complainants the appellant had sold only 6 acres and 30 gunthas of land to meet the expenses. Another fact which needs to be mentioned is that the government valuation of the land was 1,35,000 but the appellant had settled the final consideration at Rs. 75,000 out of which Rs. 30,000 was paid at the time of the agreement to sell and the remaining amount was to be paid before 1st March, 1992. Later on a sum of Rs. 17,000 was paid to the appellant. The remaining amount of Rs.
28,000 could not be obtained by the appellant as the power of attorney executed in his favour was cancelled by the complainants. The complaint was taken cognizance of and the matter was referred to the Disciplinary Committee of the State Bar Council. Vidhyadhar, complainant no. 2, was examined on oath. He, in his deposition, reiterated the what had been stated by him in his complaint. He specifically stated that he and his two other associated had not executed any power of attorney in favour of the appellant authorising him to sell their land and appropriate the sale consideration towards his fees.
That their signatures had been obtained on blank papers. That the power of attorney had been obtained by misrepresenting the facts in order to defraud them. This witness was cross-examined but nothing of substance could be brought out from his cross-examination. As the State Bar Council could not complete the proceedings within a period of one year, the complaint was transferred to the Bar Council of India under section 36B of the Act. The matter was entrusted for further action to the Disciplinary Committee of the Bar Council of India.
In spite of repeated notices sent to the appellant which were duly served on him (four times) the appellant did not put in appearance. The proceedings were continued ex-parte. The Disciplinary Committee of the Bar Council of India found the appellant guilty of soliciting brief from the complainants and obtaining their signatures and thumb impressions on certain documents on the basis of which power of attorney was executed in his favour authorising him to sell the land of the complainants.
It was found that the appellant had failed to prove that the complainants had executed the power of attorney in his favour to sell the land. It was also held that the appellant had failed to prove that his fees at the relevant time to conduct the criminal appeal was settled at Rs. 50,000. That he has failed to prove that he was entitled to and justified in recovering the fees by selling the land belonging to the complainants. The Disciplinary Committee found the appellant guilty of gross professional
misconduct as defined under Section 35 of the Advocates Act and directed the State Bar Council of Maharashtra and Goa to remove the name of the appellant from the roll of the Bar Council of Maharashtra and Goa under section 35(3d) of the Act. Cost of Rs. 25,000 were imposed and made payable to the heirs of the complainants because by that time the complainants had already been put to death in execution of the sentence imposed on them. A lien was created on the property of the appellant for the recovery of costs. Decision of the Hon’ble Supreme Court
The judgement of the division bench of the Apex Court, consisting of justices VN Khare and A Bhan, was to dismiss the appeal without costs The judges saw no merit in the appeal for the following reasons: 1. There was no substance in the submission made by the appellant that he could not be proceeded ex-parte. It was evident to the judges from the perusal of the record that there were four acknowledgements on the record which showed that the appellant had been duly served four times and in spite of the notices having been served on the appellant he did not choose to appear before the Disciplinary Committee at any point of time.
The Disciplinary Committee had no other option but to hear the matter. 2. The Secretary of the State Bar Council, who was appointed as a prosecutor, also did not lead any evidence because in the meantime all the three complainants were hanged in execution of the sentence imposed on them. The only evidence which remained and which had come on the record is the statement of Vidhyadhar, complainant. Vidhyadhar’s testimony fully established the charge of professional misconduct against the appellant. 3. The Court agreed with the findings recorded in the impugned order.
The appellant failed to lead any evidence to displace the testimony of Vidhyadhar to the effect that the appellant had solicited a brief for himself from them and they had not executed any power of attorney in his favour for the purpose of the sale of their land. He had obtained signatures and thumb impressions of the complainants on some documents. Without informing complainants a power of attorney was got executed in favour of the appellant to sell of the land. 4. The power of attorney was obtained by the appellant on misrepresentation.
In pursuance of the alleged power of attorney in his favour the appellant sold the land of the complainants fraudulently. 5. It was also established that fees of the appellant had not been settled at Rs. 50,000. He was neither entitled nor justified in selling the land of the complainants on the basis of the alleged power of attorney for the recovery of his fees. Had the intention of the complainants been to sell the land then they would not have requested for appointment of an amicus curiae to defend them before the Sessions Court.
Thus, in the Hon’ble Apex Court’s opinion, the appellant took advantage of the situation that the complainants facing death sentence and obtained the power of attorney on misrepresentation in his favour and sold the property of the complainants. Further, the appellant fraudulently appropriated the sale proceeds for his gain. He has committed a grave professional misconduct. SUMMARISE WHAT HAVE TO SAY Professional Misconduct Black’s Law dictionary defines ‘misconduct’ as transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, an unlawful behaviour, improper or wrong behaviour etcetera.
2 Justice Darling defined professional misconduct in the following words, ‘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 The Advocates Act, 1981, also does not lay down the definition of misconduct. In a 2004 case, the Apex Court further clarified that it would be difficult to lay down exhaustively what would constitute misconduct and indiscipline. 3 However, that decision had not been passed at the time of deciding of the present case, and the judges had to rely on their discretion as best they could.
In order to do so, they relied on their common sense. An advocate ought not to act in an unlawful manner with respect to his or her client. Especially in criminal matters, the life and death of the accused might depend on the skill and will of the advocate. If the advocate decides to deliberately fight the case in a languid fashion, he can easily ensure that his clients die. In the present case, the advocate stood to gain much from the death of his clients, as they would be unable to deny the fact that they had agreed to let him sell their property and appropriate the proceeds as his fee.
Their legal heirs would be unable to oppose this fact and he would easily get the money they were entitled to. Under such suspicious circumstances, the advocate’s selling of the client’s property without their consent or knowledge certainly amounts to professional misconduct. DISCUSS PREVIOUS LEGAL ETHICS CASES DISCUSS EVIDENCE POSSIBLE REASONS FOR COURT’S DECISION – QUOTE FINAL PARA IN INDIRECT FORM Conclusion The Court was right in not reversing the decision of the Bar Council of India in the appeal. The relationship between an advocate and his client is of trust and therefore sacred.
Such acts of professional misconduct and the frequency with which such acts are coming to light distresses as well have to be curbed. Preservation of the mutual trust between the advocate and the client is a must otherwise the prevalent judicial system in the country would collapse and fail. Such acts do not only affect the lawyers found guilty of such acts but erode the confidence of the general public in the prevalent judicial system. It is more so, because today recruitment to the Bench is from the Bar starting from the subordinate judiciary to the higher judiciary.
You cannot find honest and hard working judges unless you find honest and hard working lawyers in their chambers. To quote the judges themselves, ‘Time has come when the Society in general, respective Bar Council of the States and the Judges should take note of the warning bells and take remedial steps and nip the evil or the curse, if we may say so, in the bud. ‘4 Thus, this case was a fitting reminder of the long reach of the law, from which even advocates are not exempt, regardless of what they might believe to the contrary.
Courtney from Study Moose
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