Section 35 of Advocate Act 1961 provides for punishment for professional misconduct or other misconduct. In exercise of powers under Section 35 of the Advocate Act, on receipt of a complaint against an advocate or suo moto, if the State Bar Council has reason to believe that any Advocate on its roll has been guilty of professional or other misconduct, disciplinary proceedings may be initiated against him. The Disciplinary Committee of the State Bar Council is empowered to inflict punishment including removal of his name from the rolls of the Bar Council and suspending him from practice for a period deemed fit by it, after giving advocate concerned and the Advocate-General of the state an opportunity of hearing. However, an appeal against the order of the Disciplinary Committee may be preferred to the bar Council of India under Section 37 and thereafter to the Supreme Court of India against the order of the Bar Council of India under the section 38 of Advocate Act, 1961.
The Advocate Act provides remedies against the order of punishment. An advocate aggrieved by the order of Disciplinary Committee can evoke the following remedies -
1) Review
2) Revision
3) Application for Stay
4) Appeal
1) Review :
It is provided in Section 44 of the Advocates Act,1961. By
virtue of this Section the Disciplinary Committee of Bar Council of its
own motion or otherwise review any order, within 60 days of the date of
order passed by it under this Chapter. However, no such order of Review
of the Disciplinary Committee of a State Bar Council shall have effect,
unless it has been approved by the Bar Council of India.
According
to Section 48-AA of the Bar Council of India or any of the its
Disciplinary Committee, may on its own motion or otherwise, review any
order, within 60 days of the date of that order, passed by it under the
Advocate Act 1961.
The procedure for making review application is given in
chapter II, Part VII of the rules of the Bar Council of India. It is in
the form of petition duly signed and supported by an affidavit
accompanied by prescribed fee and certified copy of the order,
complained of.
Rules For Review under Section 44 of the Act as follows
(1) An application for review under Section 44 of the Act
shall be in the form of a petition duly signed and supported by an
affidavit accompanied by the prescribed fee and filed within 60 days
from the date of the order sought to be reviewed.
(2) Every such application shall be accompanied by :
(a) certified copy of the order complained of.
(b) five additional copies of the application, affidavit and the order; and
(c) if there are more respondents than one, as many additional true copies as may be necessary.
(3)
Every such application shall set out the grounds on which the Review is
sought and shall further state whether any proceeding in respect
thereof was filled and is still pending or the result thereof as the
case may be.
(4) If a Disciplinary Committee of Bar
Council does not summarily reject the application under Section 44 of
the Act, or wishes to exercise its powers under Section 44 suo motu,
the secretary of a Bar Council shall issue as nearly as maybe in the
Form, notice to the parties and to the Advocate-General concerned or
the Additional Solicitor-General of India in the case of the Bar Council
of India.
(5) (1) If after the hearing referred to in
rule 4, the Disciplinary Committee of a State Bar Council does not
dismiss the application, and decides that the application for review
should be allowed, the copy of the order along with the relevant record
shall be sent to the bar council of India for approval.
(2)
If the Bar Council of India approves the order of the Bar Council, the
Disciplinary Committee of the State Bar Council shall communicate the
order to the parties, if the bar council of India does not approved it,
the Disciplinary Committee of the State Bar Council shall make its order
dismissing the application and inform the parties.
(6)
The decision of the Disciplinary Committee of the Bar Council of India
on an application for Review of its order shall be communicated to the
parties.
(7) In the proceedings under this chapter,
unless the disciplinary committee of the State Bar Council or the Bar
Council of India, as the case may be otherwise decides, the parties may
appear by the Advocate who shall file a Vakalatnama signed by the party.
2) Revision Section. 48-A (Amendment 1964 )
1)
The Bar Council of India may, at anytime call for the record of
proceeding under this Act which has been disposed of by the State Bar
Council or a Committee thereof, and from which no appeal lies, for the
purpose of satisfying itself as to the legality or propriety of such
disposal and may pass such orders in relation thereto as it may think
fit.
2) No order which prejudicially affects any person
shall be passed under this section without giving a reasonable
opportunity of being heard.
3) Application for Stay -
According to
Section 40(1) of the Advocate Act,1961, an Appeal made under Section 37
or Section 38 shall not operate as a stay of the order appealed against,
but the Disciplinary Committee of India and the Supreme Court as the
case may be, may for sufficient cause direct the stay of such order on
such terms and conditions as it may deem fit. Rule 29 of chapter I Part
VII of the Bar Council of India Rules provides that an application for
stay shall be accompanied by an affidavit and the fee prescribed by the
Bar Council of India.
4) Appeal -
A) Appeal to the Bar Council of India
B) Appeal to Supreme Court
A) Appeal to the Bar Council of India -
In
case the order of punishment has been passed by the Disciplinary
Committee of the State Bar Council, an Appeal may be preferred to the
Bar Council of India under Section. 37 of the Advocates Act,1961. It
provides that any person aggrieved by an order of the Disciplinary
Committee of a State Bar council made under Section 35, of the
Advocate-General of State may, within 60 days of the date of the
communication of the order to him, prefer an appeal to the Bar Council
of India. Under Section 37(2), every such Appeal shall be heard by the
Disciplinary Committee of the Bar Council of India which may pass such
order including an order varying the punishment awarded by the
Disciplinary Committee of the State Bar Council thereon as it deemed fit
;
Provided that no order of the Disciplinary Committee
of the State Bar Council shall be varied by the Disciplinary Committee
of the Bar Council of India so as to prejudicially affect the person
aggrieved without giving him a reasonable opportunity of being heard.
(See also... The functions of Bar Council of India )
B) Appeal to Supreme Court -
As per
section 38 of the Advocates Act,1961 any person aggrieved by an order
made by the Disciplinary Committee of the Bar Council of India under
Section 36 or Section 37 or the Attorney-General of India or the
Advocate-General of the State concerned, as the case may be, may, within
60 days of the date on which the order is communicated to him, prefer
an appeal to the Supreme Court and the Supreme Court may pass such order
including an order varying the punishment awarded by the disciplinary
committee of the Bar Council of India thereon as it deems fit :
Provided
that no order of the Disciplinary Committee of the bar Council of India
shall be varied by the Supreme Court so as to prejudicially affect the
person aggrieved without giving him a reasonable opportunity of being
heard .
The Bar Council of India has framed the rules as
to the procedure to be observed in case of Appeal. The Appeal memo in a
prescribed form to be accompanied with the certified copy of the order
appealed against signed by the appellant with a prescribed fee within
limitation period. Delay can be condoned if satisfactorily explained and
to be supported by an affidavit.
Thus, an appeal
against the order passed by the Disciplinary Committee may be preferred
to the Bar council of India and an appeal against the order of the Bar
council of India may be preferred to the Supreme Court.
Case law
O.N. Mohindro vs District Judge, Delhi , AIR 1971, SC 107
In this case it was held that the appeal to the Supreme Court is not a restricted Appeal. It is not an appeal on law alone but also on fact. Supreme Court must in all cases go into the matter to satisfied itself that justice has been done by the Disciplinary Committee Committees. The Supreme Court possesses under the constitution special power of review and futher may pass any order to do full and effective justice under section 38 Supreme Court has jurisdiction to pass in such appeals any order it deems fit
.
See also....
1) Punishments that can be given to an Advocate under the Advocates Act,1961 for professional misconduct
2) Disqualification and punishments for Professional Misconduct
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