Bar Council Of India vs The State of Bihar

Heard Mr.Suraj Narayan Prasad Sinha and

Mr.Ramakant Sharma, learned senior counsel, appearing for

the petitioners as well as Mr.Umesh Kumar Singh, Advocate,

appearing in-person as respondent No.2.

The petitioner No.2, the Chairman of Bar

Council of India, the petitioner no.3, the Vice Chairman of

Bar Council of India and petitioner no.4, the Secretary of Bar

Council of India are accused in connection with Complaint

Case No.2312(C)/2016 brought before the learned Chief

Judicial Magistrate, Patna by respondent no.2 Umesh Kumar

Singh on the allegation that the petitioner nos. 2 to 4 have

committed offences under Sections 120(B), 467, 468, 471,

406, 420 / 34, 500 and 501 of the Indian Penal Code .

Vide order dated 14.02.2017, the learned

Judicial Magistrate 1st Class, Patna has taken cognizance in

the aforesaid complaint case against the petitioner Nos. 2 to 4

for the offences under Sections 420 and 468 of the Indian

Penal Code and has issued summons against them to face

trial.

The petitioners have challenged the

aforesaid order in this writ application on the ground that a

bare perusal of the allegations made in the complaint, even if

they are taken at their face value and accepted in their

entirety do not prima facie constitute any offence or make out

the case alleged against the petitioners. In other words, the

complaint does not disclose any case against the petitioners.

Another ground for challenge is that entire allegation is based

on the resolution of petitioner No.1, the Bar Council of India

which is a statutory body under Section 4 of the Advocates

Act 1961. The resolution was under rule making power

contained in Section 49 (ab) and under Section 49 (ah) of the

Advocates Act . Therefore, the liability goes against the

petitioner No.1 who is not an accused in this case and unless

there is specific provision laid down under the statute

making, accused Nos. 2 to 4 vicariously liable, they can not

be prosecuted in the light of ratio decided in S.K. Alagh Vs.

State of Uttar Pradesh & Ors (2008) 5 SCC 662.

According to complaint petition, the Bar

Council of India published Notification No.276/2014 in the

Gazette of India notifying "Certificate of Practice and Renewal

Rules, 2014" for that petitioner Nos.2 to 4 who were accused

Nos. 1 to 3 in the complaint petition hatched criminal

conspiracy for cheating the fellow members. As per the

provisions in Rules, 2014, Rs. 400/- was payable to the

Secretary of State Bar Council of India and Rs. 100/- was

payable in the name of Secretary, Bar Council of India in the

bank account of B.C.I. Practice Fund Account. Though,

Chapter-IV clearly prevents opening of any other separate

account save and except single account in the name of the

Bar Council of India.

Again the Chairman of the Bar Council of

India wrote a letter to Hon''ble the Chief Justice of Patna High

Court vide B.C.I. Letter No. 2187 dated 19.05.2016 regarding

the malpractice adopted by some of the staff members of the

Civil Courts as well as some non-advocates vide Annexure-2

to the complaint petition, which was alleged a defamatory and

against the reputation of the Civil Court staff as well as Civil

Court Advocates, in the society. The said letter was circulated

by the District Bar Association. The whole object behind the

exercise aforesaid by the accused persons was to hatch illegal

money.

Learned counsel for the petitioners

submits that the Bar Council of India is a statutory body

which is competent under Section 49 of the Advocates Act to

make rules to regulate the practice. The said rule has been

upheld by a Division Bench of this Court in

C.W.J.C.No.9976/2016 vide Annexure-3. Moreover, the

relevant provisions of 2014, Rules were modified to some

extent by reducing the quantum of chargeable fee and finally

2014 Rules was substituted by Certificate and Place of

Practice (Verification) Rules, 2015 Vide Annexure-2 which

came into effect on 13.01.2015 much before filing of the

complaint case on 25.07.2016. Rule 34 and 35 of 2015 Rules

read as follows:

Repeal of all Resolutions/Rules

passed /framed either by any State

Bar Council or by Bar Council of India.

Any Resolutions/Rules passed/framed

by any State Bar Council or by Bar Council

of India, which are inconsistent with these

Rules, shall stand repealed from the date

on which these Rules come into force.

The decision with regard to

Rs.500/- or Rs.200/- (as the case may be)

as paid by any Advocate as Practice fee as

provided under Bar Council of India

Certificate of Practice and Renewal Rules.

2014, prior to the date of commencement of

these Rules of 2015, shall be taken by the

concerned State Bar Council. Either after

deducting Rs.100/- as Process/Verification

fee the rest of Rs.400/- or Rs.100/- (as the

case may be) is to be refunded to the

Advocate or it may be utilized for the

insurance of the Advocate and his family

or for the benefit and welfare of concerned

Advocate. This decision is to be taken by

the concerned State Bar Council only after

obtaining option of concerned Advocate.

I find substance in the submission of the

learned counsel for the petitioners that except bald allegation,

there is no substantial material disclosed in the complaint

petition or in the statement of witnesses examined under

Section 202 Cr.P.C. to substantiate that the petitioner Nos.2

to 4 had created any forged document nor there is material to

substantiate that they individually or collectively cheating

anyone. The entire decision of bringing the new Rules in force

was of the Bar Council of India. The Constitution whereof is

mentioned in Section 4 of the Advocates Act and the

resolutions alleged to be taken by the petitioner Nos.2 to 4

were resolutions of the Bar Council of India. Those

resolutions might have been challenged by the aggrieved

party and it has been informed that the same is under

challenge but the resolutions of Bar Council of India cannot

be argued to be the act of petitioner Nos.2 to 4 either

individually or collectively to fasten them with any criminal

liability for the act committed by the statutory body.

So far letter at Annexure-2 to the

complaint petition is concerned, petitioner No.2 has clearly

stated in para-2 thereof that the Council (B.C.I.) has got the

information that in most of the District/Taluka Courts, the

non-practicing advocates are adopting illegal device and are

putting their signature over some old Vakalatnamas filed by

other advocates and this corrupt practice is being adopted in

connivance with the concerned staff of the Civil Court. This

malpractice is frustrating the very object of the Rules. The

Rules have been allowed to be implemented strictly, by the

Hon''ble Supreme Court of India.

A bare perusal of the aforesaid letter

would reveal that the same contains no defamatory or

scandalous remark against the advocates or the Civil Court

staff. Only the fact of malpractice has been brought to the

notice of Hon''ble the Chief Justice of Patna High Court.

Moreover, the court below has not taken cognizance for

offences under Sections 500 and 501 of the Indian Penal

Code.

So far order of cognizance under Sections

420 and 468 of the Indian Penal Code against the petitioner

Nos.2 to 4 is concerned, the complaint petition does not

disclose that the petitioner Nos.2 to 4 have created any

document or forged any document nor there is material to

substantiate that they have cheated any one. Hence,

apparently, the complaint discloses no offence against

petitioner Nos.2 to 4. As such, the entire criminal prosecution

of the petitioner Nos. 2 to 4 is an abuse of the process of the

Court. Accordingly, fit to be quashed.

Incidentally, respondent No.2 requested

to this Court to call for a report from the Secretary, Bihar

State Bar Council as to whether any money has been

transferred to the Bar Council of India from the separate fund

maintained by the State Bar Council under Certificate and

Place of Practice (Verification) Rules, 2015. The report has

been received that no money has been transferred to the Bar

Council of India. In reply to the aforesaid report, written

petition is there on behalf of the respondent No.2 that the

statement of receipt and expenditure has not been supplied

by the Secretary. These are the academic matters because

this Court is not going to decide, the conduct of the Bihar

State Bar Council, in this writ application.

Learned respondent No.2 raised

preliminary objection against the maintainability of the writ

application on the ground that the alternative and efficacious

remedy is available to the petitioners under Section 482

Cr.P.C. before this Court. The power under Section 482

Cr.P.C. is very wide. Therefore, the petitioners should have

approached this Court under Section 482 Cr.P.C. and this

writ application is not maintainable. As normally, the

alternative remedy bars the extra ordinary writ jurisdiction of

the Court.

I do not find any substance in the

submission of the respondent No.2 in view of the judgment of

the Hon''ble Supreme Court in M/s Pepsi Foods Ltd. And

another v. Special Judicial Magistrate and others

reported in A.I.R. 1998 SC 128. Para-25 and 26 of the

judgments are being reproduced below:

" 25. In Nagendra Nath Bora v. Commr. Of

Hills Division, 1958 SCR 1240: (AIR 1958 SC

398 at p.413) this Court observed as under:

" It is thus, clear that the powers of

judicial interference under Art.227 of the

Constitution with orders of judicial or quasi-

judicial nature, are not greater than the

power under Art. 226 of the Constitution.

Under Art.226 the power of interference may

extend to quashing an impugned order on the

ground of a mistake apparent on the face of

the record. But under Art.227 of the

Constitution, the power of interference is

limited to seeing that the Tribunal functions

within the limits of its authority."

Nomenclature under which petition is

filed is not quite relevant and that does not

debar the Court from exercising its

jurisdiction which otherwise it possesses

unless there is special procedure prescribed

which procedure is mandatory. If in a case

like the present one the Court finds that the

appellants could not invoke its jurisdiction

under Art.226, the Court can certainly treat

the petition one under Art.227 or S. 482 of

the Code. It may not, however, be lost sight

of that provisions exist in the Code of

revision and appeal but sometime for

immediate relief S.482 of the Code or Art.227

may have to be resorted to for correcting

some grave errors that might be committed

by the subordinate Courts. The present

petition though filed in the High Court as one

under Arts. 226 and 227 could well be

treated under Art.227 of the Constitution".

The next contention of the learned

respondent no.2 is that the Bar Council of India is not an

accused in the complaint case. Hence, it has no locus standi

to file this writ application.

I do not find any merit in the submission

aforesaid because the Bar Council of India has every right to

come forward in protection of its office-bearers who are going

to be prosecuted for the act of decision taken/notification

issued by the Bar Council of India a statutory body.

Moreover, the complaint petition also reveals that the Rule

was issued by the Bar Council of India.

Learned respondent No.2 submits that

there is no provision for maintenance of separate bank

account whereas the Bihar State Bar Council is maintaining a

separate bank account under the head Certificate and Place

of Practice (Verification)Rules, 2015.

I find substance in reply to the aforesaid

contention that the separate fund is being maintained

because it is yet under dispute whether such fee is

chargeable or not, if the competent court holds that such fee

is not chargeable, the fund is to be refunded to the concerned

advocates. Furthermore, a proportion has been provided in

the rules which would go to the share of the District Bar

Association as well as in the welfare scheme of the advocates.

In view of the aforesaid discussion,

specially conclusion of this Court that no offence is prima

facie disclosed in the complaint petition against the

petitioners for which cognizance has been taken by the

learned court below as well as considering the fact that the

petitioner Nos.2 to 4 cannot be vicariously held liable for the

act of petitioner No.1 unless the statute specifically so

provides. Hence the criminal prosecution of the petitioner

Nos. 2 to 4 is an abuse of the process of the court.

Accordingly, the impugned order passed in Complaint Case

No. 2312(C)/2016 hereby stands quashed.

This writ application is allowed, however,

without any cost.