Name: Chandni R Kukreja

Division: B
Roll no: 81
Topic: Practical Training – 1 (Journal)
K.C LAW COLLEGE

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 INDEX
Contents
1. Bar and Bench Relationships :.................................................................................... 3
 Bar Council of India..................................................................................................... 3
 Powers of Bar Council of India................................................................................... 4
2. Rights and Duties of Advocates :............................................................................. 10
Case:................................................................................................................................. 17
Harish Uppal V. Union of India.................................................................................... 17
 ANALYSIS OF THE JUDGEMENT........................................................................ 17
3. Advocacy skills for lawyers :..................................................................................... 19
4. Civil and Criminal Contempt.................................................................................... 24
5. Hikmat Ali v Ishwar Prasad Sharma........................................................................ 26
6. R.D. Saxena v Balram Prasad Sharma..................................................................... 35
 Reference:................................................................................................................ 44
 Webliography:......................................................................................................... 44

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 1. Bar and Bench Relationships :

Bar-Bench Relation in law refers to the cordial relationship between the Advocates
and the Judges. The Bar (Advocates) and Bench (Judges) play an important role in the
administration of justice. The judges administer the law with the assistance of the
lawyers. The lawyers are the officers of the court. They are expected to assist the
court in the administration of justice. As the officers of the court the lawyers are
required to maintain respectful attitude toward the court bearing in mind that the
dignity of the judicial office is essential for the survival of the society. Mutual respect
is necessary for the maintenance of the cordial relations between the Bench and bar.

The opinion of our Supreme Court in the context of Bench- Bar Relation has been
clearly laid down in P.D. Gupta v. Ram Murti and Others as follows: "A lawyer owes
a duty to be fair not only to his client but also to the court as well as to the opposite
party in the conduct of the case.

Administration of justice is a stream which has to be kept pure and clean. It has to be
kept unpolluted. Administration of justice is not something which concerns the Bench
only. It concerns the Bar as well. The Bar is the principal ground for recruiting judges.
Nobody should be able to raise a finger about the conduct of a lawyer. Actually
judges and lawyers are complementary to each other. The primary duty of the lawyer
is to inform the court as to the law and facts of the case and to aid the court to do
justice by arriving at the correct conclusions. Good and strong advocacy by the
counsel is necessary for the good administration of justice.

Consequently, the counsel must have freedom to present his case fully and properly
and should not be interrupted by the judges unless the interruption is necessary.”

 Bar Council of India

 Introduction :

The Bar Council of India is a statutory body established under Section 4 of Advocates
Act 1961 that regulates the legal practice and legal education in India. Its members
are elected from amongst the lawyers in India and as such represents the Indian bar. It

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was created by Parliament under the Advocates Act, 1961. In March 1953, the 'All
India Bar Committee', headed by S. R. Das, submitted a report which proposed the
creation of a bar council for each state and an all-India bar council as an apex body. It
was suggested that the all India bar council should regulate the legal profession and
set the standard of legal education. The Law Commission of India was assigned the
job of assembling a report on judicial administration reforms. In 1961, the Advocates
Act was introduced to implement the recommendations made by the 'All India Bar
Committee' and 'Law Commission'. In 1963, C. K. Daphtary became the Chairman
and S. K. Ghose became the Vice Chairman. It prescribes standards of professional
conduct, etiquettes and exercises disciplinary jurisdiction over the bar. It also sets
standards for legal education and grants recognition to Universities whose degree in
law will serve as a qualification for students to enroll themselves as advocates upon
graducation.

 Powers of Bar Council of India

A) Admission as advocates:

Section 20 of the Advocates Act provides that every advocate who was entitled as of
right to practise in the Supreme Court immediately before the appointed day and
whose name is not entered in any State roll may, within the prescribed time, express
his intention in the prescribed form to the Bar Council of India for the entry of his
name in the roll of a State Bar Council and on receipt thereof the Bar Council of India
shall direct that the name of such advocate shall, without payment of any fee, be
entered in the role of that State Bar Council and the State Bar Council concerned shall
comply with such direction. The entry in the State Roll made in the compliance with
such direction shall be made in the order of seniority determined in accordance with
the provisions of Section 17(3).Where an advocate omits or fails to express his
intention within the prescribed time, his name shall be entered in the roll of the State
Bar Council of Delhi.Section 19 of the Advocates Act makes it clear that every State
Bar Council shall send to the Bar Council of India an authenticated copy of the roll of
advocates prepared by it for the first time under this Act and shall, thereafter,
communicate to the Bar Council of India all alternations in and addition to, any such
roll, as soon as the same have been made.Section 18 of the Advocates Act makes
provision in respect of the transfer of name from one State roll to another. It provides

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that any person whose name is entered as an advocate· on the roll of any State Bar
Council may make an application in the prescribed form to the Bar Council of India
for the transfer of his name from the roll of that State Bar Council to the roll of any
other State Bar Council and on receipt of any such application, the Bar Council of
India shall direct that the name such person shall, without the payment of any fee, be
removed from the roll of the first-mentioned State Bar Council and entered in the roll
of the other State Bar Council and the State Bar Councils concerned shall comply
with such direction: Provided that where any such application for transfer is made by
a person against whom any disciplinary proceeding is pending or where for any other
reason it appears to the Bar Council of India that the application for transfer has not
been made bona fide and that the transfer should not be made, the Bar Council of
India may, after giving the person making the application an opportunity of making a
representation in this behalf, reject the application. It has been made clear that where
on an application made by an advocate under this section, his name is transferred
from the roll of one State Bar Council to that of another, he shall retain the same
seniority in the latter roll to which he was entitled in the former roll.

B) Appointment of Committee and Staff-members :

Section 9 of the Advocates Act empowers a Bar Council to appoint disciplinary committees,
It shall constitute one or more disciplinary committees each which shall consist of three
persons of whom two shall be persons elected by the Council from amongst its member
and the other shall be person co-opted by the Council from amongst advocates who
possess the qualifications specified in the proviso to sub-section (2) of Section 3 of the and
who are not members of the Council and the senior most advocates amongst the members
of a disciplinary committee shall be the Chairman thereof. Section 9-A of the Advocates
Act empowers a Bar Council to appoint or more legal aid committees. Each committee
shall convert of such number of members not exceeding nine but not less than five as may
be prescribed. The qualifications, the method of selection and the term of office the
members of such committee shall be such as may be prescribed. Section 10(1) makes
provisions in respect of constitution of Standing Committees by a State Bar Council.
Besides, Section 10(2) of the Advocates Act requires the Bar Council of India to constitute
the following committees:-

(1) an executive committee consisting of nine members elected by the

Council from amongst its members;

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(2) a legal education committee consisting of ten members, of whom five shall be persons
elected by the Council from amongst its members and five shall be persons co-opted by the
Council who are not members thereof. Section 11 of the Advocates Act, requires every Bar
Council to appoint a secretary. It also empowers the Bar Council to appoint an accountant and
such member of other persons on its staff as it may deem necessary. The secretary and the
accountant shall possess such qualifications as may be prescribed.

C) Maintenance of account, etc:

According to Section 12 of the Advocates Act every Bar Council shall cause to be
maintained such books of account and other books in such form and in such manner
as may be prescribed. The account shall be audited by auditors duly qualified to act as
auditors of companies under the Companies Act, 1956 at such times and in such
manner as may be prescribed. Sub-section (3) of Section 12 makes it clear that as
soon as may be practicable at the end of each financial year but not later than the 31st
day of December of the year next following, a State Bar Council shall send a copy of
its account together with a copy of the report of the auditors there on to the Bar
Council of India and shall cause the same to be published in the official Gazette. Sub-
section (4) of Section 12 provides, as soon as may be practicable at the end of each
financial year but not later than the 31st day of December of the year next following,
the Bar Council of India shall send a copy of its accounts together with a copy of the
report of the auditors thereon to the Central Government

D) Rule-making power:

A Bar Council may make rules under the provisions of Section 15 of the Advocates
Act. Sub-section (2) of Section 15 of the Act provides that in particular land without
prejudice to the generality of the foregoing power, such rules may provide for:(a) the
election of members of the Bar Council by secret ballot including the conditions
subject to which persons can exercise the right to vote by postal ballot, the preparation
and revision of electoral rolls and the manner in which the results of election shall he
published;(b) the manner of election of the Chairman and the Vice-Chairman of the
Bar Council;

(c) The manner in which and the authority by which, doubts and disputes as to the
validity of an election to the Bar Council or to the office of the

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Chairman or Vice-Chairman shall be finally decided;

(d) The filling of casual vacancies in the Bar Council;

(e) The powers and duties of the Chairman and the Vice-Chairman of the Bar
Council;

(f) The constitution of 'one or more funds by a Bar Council for the purpose of giving
financial assistance or giving legal aid or advice referred to in Section 6(2) and
Section 7(1) of the Advocates Act;

(g) Organization of legal aid and advice to the poor, constitution and function of
committees and sub-committees for that purpose and description of proceedings in
connection with which legal aid or advice may be given;

(h) The summoning and holding of meetings of the Bar Council, the conduct of
business there at and the number of members necessary to constitute a quorum;

(i) The constitution and functions of any committee of the Bar Council and the terms
of office of members of any such Committees;

(j) The summoning and holding of meetings, the conduct of business of any such
committee and the number of members necessaryto constitute a quorum;

(k) The qualifications and the conditions, of service of the secretary, the accountant
and other employees of the Bar Council;

(l) The maintenance of books of accounts and other books by the Bar Council;

(m) The appointment of auditors and the audit of the accounts of the Bar Council;

(n) The management and investment of the funds of the Bar Council.

E) Power to punish for professional or other misconduct:

Section 36 of the Advocates Act empowers the Bar Council of India to punish an
advocate for professional or other misconduct. It provides that where on receipt of a
complaint or otherwise the Bar Council of India has reason to believe that any
advocate whose name is entered on any State roll has been guilty of professional or
other misconduct, it shall refer the case for disposal to its disciplinary committee. The
disciplinary committee of the Bar Council of India may, either on its own motion or

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on a report by any State Bar Council or an application made to it by any person
interested, withdraw for inquiry before itself any proceedings for disciplinary action
against any advocate pending before the disciplinary committee of any State Bar
Council and dispose of the same.

The disciplinary committee of the Bar Council of India, in disposing of any case of
professional or other misconduct of advocate shall observe, so far as may be, the
procedure laid down in Section 35 of the Act. In other words in disposing of such
case, it shall fix a date for its hearing, cause a notice thereof to be given to the
advocate concerned and Attorney-General of India, Thus after giving the advocate
concerned and the Attorney General of India an opportunity of being heard, it will
dispose of the case and may make any order which the disciplinary committee of a
State Bar Council can make under Section 35(3) of the Advocates Act. Thus, in
disposing of such case it may dismiss the plaint, reprimand the advocate, suspend the
advocate from practice for such period as it maydeem fit and remove the name of the
advocate the State roll of advocates. Sub-section (4) of Section 36 makes it that if any
proceedings are withdrawn for inquiry before the disciplinary committee of the Bar
Council of India, the State Bar Council concerned shall give effect to any such order.

The Body or Authority Empowered to Punish for Professional or

Other Misconduct:

State Bar Council And Its Disciplinary Committee:

Organization: Section 35 of the Advocates Act makes it clear that on receipt of a

complaint or otherwise a State Bar Council has reason to believe that any advocate on
its role has been guilty of professional or other misconduct, it shall refer the case for
its disposal to disciplinary committee - Section 35. It is one of the functions of the
State Bar Council to entertain and determine the cases of misconduct against the
advocate on its roll - Section 6(c). Section 9 of the Act requires the Bar Council to
constitute one or more disciplinary committees - Section 9(1). Each of such
committee is required to consist of three persons of whom two shall be persons
elected by the council from amongst its members and other shall be a person co-opted
by the council from amongst its member advocates who possess the qualifications
specified in the provisions to sub-section (2) of section 3 and who are not members of

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council and the senior most advocate amongst the members of the disciplinary
committee shall be the chairman thereof.

Procedure- Section 35 provides that after giving the advocate concerned and the
Advocate- General an opportunity of being heard, the disciplinary committee of a
State Bar Council may make any of the following orders-:

1. Dismiss the complaint or where the proceedings were initiated at the instance of
the State Bar Council, direct that the proceedings be filed;

2. Reprimand the advocate;

3. Suspend the advocate from practice for such period as it may deem fit;

4. Remove the name of the advocate from the State roll of advocates - Section 35(3)

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2. Rights and Duties of Advocates :

 Introduction:
An Advocate is a professional or an expert in the field of law. The law
governing Advocates is the Advocates Act, 1961 which was introduced by the
Ashok Kumar Sen, the then Law Minister of India. The Advocates Act, 1961
is a law passed by the Parliament and is controlled and implemented by the
Bar Council of India. The Bar Council of India is the chief administrative
body to manage the whole system and consistency of law in India.

In India, each State has its own Bar Council whose role is to register the
Advocates willing to practice within a particular State or region. The
registration of an Advocate with a State Bar Council does not limit him to
practice in that particular State or region and such an advocate is permitted to
show up in any court in India. Basically, the State Bar Councils have the role
of dividing the workload of the Bar Council of India. The State Bar Councils
deal with the local issues in smoother ways.

 Rights of an Advocate :
Following are the rights that an Advocate in India has;

 Right of Practice:
The expression ‘right to practice’ in terms of the legal profession refers to an
exclusive right given to advocates to practice law before courts and tribunals.
The right to practice is protected at two levels and they are as follows:

 General Protection: Article 19(1) (g) of the Indian Constitution

protects the right of individuals to the practice of their choice.
 Specific Protection: Section 30 of the Advocates Act, 1961 states that a
person enrolled with the State Bar Councils has the right to practice
before any court or tribunal in India which also includes the Supreme

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 Court. The Central Government made this section effective recently
through a notification.
 Section 30 of the Advocates act provides specific protections for the
right of an advocate to practice in any court or tribunal in India if his
name is registered in the Bar Council list.

Section 30 of the Advocates act 1961 came into force on June 15,
2011. The Government of India issued a Gazette notification on June
9, 2011, that section 30 of the Advocates act 1961 shall come into
force from the date of June 15, 2011

 Right to Pre-audience:

Under Section 23 of the Advocates Act an advocate has the right to be heard
first when he/she says something in the court of law. Advocates also have the
right to not be interrupted before the completion of his statement.

The advocate hierarchy system in India is as follow:

1. Attorney General
2. Solicitor General
3. Additional Solicitor General
4. Second additional solicitor General
5. Advocate general of the state
6. Senior advocates
7. Other advocates

This is the advocate hierarchy in India. As per the right to pre-audience, the
Attorney General will be the first advocate who can represent his case first in
the court of law before another advocate.

For example, an attorney general is representing his client in a case where a

fresh advocate is representing the opposing party in the case. In this situation,
the Attorney General will be heard first.

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This rule also gives a wider sense that an advocate has the right to represent
his client before the court of law and he has the right to speak before an
audience present in the courtroom.

 Right to freedom of speech and expression :

An advocate while arguing in litigation cannot be stopped from speaking

unless he violates the terms and rules of the court of law. Article 19 (1) (a) of
the constitution of India gives the right to freedom of speech and expression.
This fundamental right is available to all the citizens of India. Being an
advocate a person can also enjoy the right to speech and expression even in the
court of law.

 Exemption from arrest:

S. 135 CPC guarantees all the advocates that they shall not be arrested in civil
cases except in the cases of contempt of court and criminal offences, while
going to, attending for some matter or returning from such a tribunal or court.

 Going to the court

 Presiding his case in the court
 Returning from the court

These are the circumstances in which the police cannot arrest an advocate in a
civil matter.

 Right to enter in any court:

Under section 30 of the Act, all the advocates are entitled to practice in any
court or tribunal in India. Therefore, even if they are not registered in that
particular tribunal or court, they have the right to enter it. An advocate can
enter the court and sit on any of the seats to observe the proceedings whether
he has a case or not.

 Right to meet accused in Jail:

When an advocate takes any case in which the accused is in jail, the
right to meet the accused person comes into force. As per law, a person is

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innocent until proven guilty. So it becomes important for an advocate to
understand the case properly by meeting his client even in the jail to discuss
all the related facts and evidence of the case which will help an advocate to
fight the case in the court of law.

An advocate can meet the accused even in jail however the meeting in
jail will be limited. It is the right of an advocate to meet his client even every
day.

 Right to secure the privacy of the communication :

It is an exclusive right of an advocate given by section 129 of the Indian

Evidence Act 1872. According to this section, the advocate has the right to
secure the privacy of the communication with his client. The advocate is not
liable to tell anybody about the discussion done between him and his client
related to the case. Section 129 of the Indian evidence Act 1872 also provides
that no person can threaten an advocate to disclose the communication done
between him and his client.

 Right of fee:

Under Rule 11 of Chapter 2 of part VI of Bar Council of India Rules, an

advocate has a right to take fees. This right is exercised according to his
standing at the bar.

 Right to refuse for a case :

It is the right of an advocate that he can refuse to take the case which is
dealing with illegal things.

 Right with respect to Vakalatnama:

When a Vakalatnama gets signed in the name of the advocate, he gets entitled
to exclusively represent his client in that particular case an advocate also has
the rights to file a memorandum of appearance for an accused that he is no the
lawyer for and also assist the Public Prosecutor during a case.

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Duties:

The Advocates Act 1961 also provides some necessary duties against the
advocate. The law provides the duties of an advocate towards his client and
towards the court. So let’s discuss them.

Duties of an advocate towards his client

Bound to accept the briefs

It is the duty of the advocate to know the brief of the case while he is dealing
with the case in the court or tribunal or any other legal authority. An advocate
must know about the nature of the case and on related and necessary facts of
the case.

Duty not to withdraw from the case

An advocate should not withdraw from giving his service to the client once he
has agreed to give him that service. An advocate can only withdraw his service
if he has a reasonable cause or he has given sufficient notice to his client. Also
when an advocate withdraws his service, he must refund a genuine part of the
fees.

Duty to handle the case without any fear

It is the duty of the advocate to deal with the case of his client without any fear
or without any pressure. He should deal with the case fearlessly and the
proceedings in the case should be fair.

Full disclosure to the client

It is the duty of an advocate to disclose all defects and connections with the
parties and any interest which may affect the judgement of the case.

Not suppress evidence or fact

An advocate who is appearing before the court of law in a criminal case

should not suppress any evidence which is important for the judgement. The
motive of the advocate should not lead to the conviction of an innocent person.

Not appear in a matter where he is a witness

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An advocate should not plead in a case where he is also a witness. If an
advocate sees any case related to him then he should not take that case for
pleading. The advocate should retire from that case and let other advocates
continue that case.

Loyalty in the case

The Advocate must not have any personal interest in the case. He must
represent his client in court without any personal gain.

Duty related to the confidential communication

If a client made any confidential communication with his advocate then it is

the duty of the advocate to maintain the confidentiality of that
communication between him and his client.

Work only on the instruction of the client

An advocate should take the instructions from his client for any authorized
person from his client only. The advocate should not take any instruction
from another person who is not in the favour of his client or not authorized by
his client.

The fee of the case should not charge on the success of the case

Sometimes the advocates take the percentage for some shares in the property
after winning the case which is a bad practice. The advocate should not
charge on the success of the case.

Not purchase the property rising from the case

The advocate should not purchase or bid on the property which is the matter
in a legal proceeding. However, there is no restriction where an advocate is
bidding or buying the property on the behalf of his client.

Misuse of confidential information

It is the duty of the advocate that he should not misuse the confidential
information which he gains from his client. An advocate should not blackmail
his client for the confidential information given to him by the client.

Not appear in the opposition of his client

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It is the duty of an advocate that he should not appear in a case where he has
given legal advice to a party and now he is opposing him in the case. In such
a case an advocate should quit the case or shift the case to another advocate.

Duties of an advocate against the court

Respect the court

It is the duty of an advocate against the court that he should respect the court
and judges in the court. He should not do any act which breaks the rules and
regulations of the court.

No private communication with the judge

An advocate should not communicate with a judge related to the case which
is still pending in the court because it is unethical to practice.

Refused to act in an illegal manner

An advocate should refuse to do any illegal work while representing his client
in court. He should also stop his client from doing any illegal act to win the
case. There should not be any illegal practice from the account of an
advocate towards the pleadings in the court

Appear in proper dress code

The advocate should appear in the proper dress while addressing the court in
a case. The bar council of India has defined the dress code for an advocate to
represent the case before the court of law.

Refuse to appear in the court where the judge in relation

An advocate should not fight the case in a court where the judge is in relation
with the advocate. The relationship can be anything whether it’s a blood
relationship or any other relation.

Not wear gowns or bands in public places

The advocate should only wear the gown while proceeding in the court. He
should not wear the gown and band in public places unless he is in the
ceremonial function by the Bar Council of India.

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 Conclusion

The Advocates Act 1961 has given many rights of an advocate and also some
duties related to his client and court while dealing with the case. The act also
protects the advocate from the arrest in a civil case so that justice should be
provided to his client while he is representing his client in the court
proceedings.

The rights of an advocate are to protect justice because advocates are the ones
who help the court to serve justice in civil and criminal cases. But if any
advocate misuses the powers given by the law, the act also specifies the
punishments for the same.

Case:
Harish Uppal V. Union of India

Court:

Supreme Court of India

Brief:

This is a landmark judgement in which the court has stated that lawyers have
no rights to strike or give a call for the boycott of court.

SUMMARY:

It was held that lawyers reserve no right to strike or give a call for boycott, not
even on a symbolic strike. They can protest, if required, must be only by
giving press articulations, TV interviews, completing of Court premises
standards and additionally notices, wearing black or white or any shading
armbands, peaceful protest outside and away from Court premises, going on
dharnas and so forth.

 ANALYSIS OF THE JUDGEMENT

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The Petitioner presented that strike as a method for collective bargaining was
perceived only in industrial disputes and lawyers who were officials of the
Court could not utilize strikes as a way to extort the Courts or the clients. They
further contended that the call for strike by lawyers was in actuality a call to
break the agreements which lawyers have with their clients. Then again, the
legal fraternity presented that lawyers retained the right to strike in uncommon
cases to get their interests imparted in the case of improper treatment being
given to them. The Supreme Court stated that lawyers reserve no right to go
on strike or give a call for the boycott of court, not even on a symbolic strike.
The protest, if any is required, must be made by giving press explanations, TV
interviews completing of the Court premises standards and additionally
notices, wearing dark or white or any shading arm groups, tranquil dissent
walks outside and away from Court premises, going on dharnas or relay facts
and so on. The Court on acknowledging the fact that even those lawyers
willing to go to the Court couldn't go to inferable from the strike or the boycott
asked the lawyers to intensely decline to submit to any call for strike or
boycott court. The Court also stated that no lawyer might be visited with any
adverse consequence by the Association or the Council and no threat or
coercion of any nature including that of expulsion are often held call at an
occasion of his refusal to attend to the strike or boycott. The Court also saw
that an Advocate is an official of the Court and appreciates uncommon status
in the public arena. They have commitments and obligations to guarantee
smooth working of the Court and they additionally owe an obligation to their
customer. Strikes are meddled with the organization of equity, disturb Court
procedures, and put the interest of their customers at risk. Thus the Court has
imposed a ban on strikes by lawyers.

 CONCLUSION

The Supreme Court of India concluded that the strike by an advocate is

considered unlawful and illicit. A strike might be allowed in the most
extraordinary of the uncommon situations where respectability, regard, and
working of the courts are at the stake. A silent disappointment can be showed
or a meeting to the press and media can be given, till the time it does not affect
the working of the court

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 3. Advocacy skills for lawyers :

 The Concept of Advocacy Skills

Advocacy skills can be referred to as the science of advocating, it is the capacity

to defend or build a point in a manner that impresses the Judge and ultimately
convinces the judge that your thinking and the conclusion are correct.

An Advocacy entails an art of persuasion or convincing power and it entails an art

of discovering and establishing the truth. When we say an art of persuasion we
generally mean try to satisfy the decision-maker that the version of your story is
true.

 Self-Advocacy Skill for lawyers and how to Successful Achieve

Them

1. Preparation skills

Preparation is a must thing when an advocate is dealing with a client, colleague or

court.

2. Client interview skills

This is the beginning of the lawyer-client relationship. The interview enables you to
extract from the client the relevant facts to be the basis of his issue.

3. Persuasive skills

This is the most important skill for an advocate .These skills differentiate one
advocate from another. Persuasive skills differentiate the legal profession with other
professions and it makes legal profession valuable

4. Legal drafting

Legal drafting entails the ability of an advocate to prepare all legal documents and
correspondences.

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5. Presentation skills

This is the interpersonal aspect of the advocate. Here a lawyer is live and physically
exposing himself before the court, client, opponent party or public.

 Preparation skills for lawyers

Preparation is a must thing when an advocate is dealing with a client, colleague, or

court. To successful archive preparation skills consider the following;

When it comes to the client have you be prepared from the beginning even before you
meet the client. This enables you to deal with your client by giving him the best
service as far as his/her interests are concerned. Here you are required to determine
the important interests of the client.

To give your best in preparation, make sure there is a conducive environment in your
office or a venue so as the client to feel comfortable when the interview takes place.

I advise you to make most of the preparation yourself instead of delegating such
activities to your secretaries who among them do not have advocacy skills.

Make sure you do extensive research to enable you to have ample knowledge on the
particular subject of law otherwise, you should not accept the retention.

When it comes to court matters, you must prepare yourself adequately for the case.
The preparation involves the updating of the proceeding of the last session with a
view of determining what is to be done in the coming session Make sure you know
the file. Where necessary tell the client what you expect from the coming session.
Organize everything that you will need before going to court including authorities,
evidence, and witnesses

 Client Interview Skills for lawyers

This is the beginning of the lawyer-client relationship. The interview enables you to
extract from the client the relevant facts to be the basis of his issue. Consider the
following to archive the best interviewing skills.

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1. Have a pen and paper/notebook. Note important facts while listening to your client.
Remember! Noting indicates attention.

2. When interviewing the client, give him/her enough time to explain the facts without
being interrupted.

3. You should be attentive in listening and always use familiar language with the
client.

4. When necessary, chip in with the view of better understand and maintaining the
chronological flow of the story.

5. Ask questions, seek clarifications when deems a doubt. It is through interview an

advocate establishes the client’s interests which will form the basis of the persuasion
of his case at the court of law.

6. Utilize this session to know another side of the story so as to assess the strengths
and weaknesses of the case.

7. At the end of the interview explains the future steps that you will undertake to
meets client needs.

8. Make a client your friend

9. Always be smart and in proper attire

10. Show the client that you know what you’re doing. Observe the ‘first impression is
the best impression’ rule for new clients.

 Legal Drafting Skills for lawyers

Legal drafting entails the ability of an advocate to prepare all legal documents and
correspondences. This is a must skill for a successful lawyer.

Most of the legal documents are normally drawn under the set rules and practices
whose contravention may negatively impact your career. To archive excellent
drafting skills you must consider the following

1. Observe all legal requirements of the documents you draft.

2. Use appropriate language

21
 3. Edit, edit edit
4. Make sure the hard copy looks neat
5. Determine you’re the audience, are you writing for a judge, attorney, or
client? Make sure you meet the demand of the audience
6. Use short sentence
7. Be clear and precise
8. Observe the chronological flow of facts

 Presentation skills for lawyers

This is the interpersonal aspect of the advocate. Here a lawyer is live and
physically exposing himself before the court, client, opponent party, or public.
To archive the best presentations skills you must consider the following

1. You must have the logical and chronological flow of his arguments with the
respect to organizing yourself in terms of arguments, material facts of the case,
the law applicable, and relevant authorities.
2. Be flexible
3. Speak audibly. Do not whisper.
4. Be clear and interesting. Use the real-life examples to give life to your
presentation
5. Avoid unnecessary argument which creates doubt and question validity or
truthfulness when addressing the court.
6. Adheres to the rules of professional conduct including treating the court
with candor, fairness, courtesy, honesty, and respect.

 Conclusion
The advocacies skills though need training commonly is attributed to personal
or human nature.
Most of the advocacy skills cannot be taught but acquired during the process
of advocating.
To archive, the highest level of skills needs time and continuous learning.

22
There is a wise expression that says that there is no better teacher that can
substitute experience.

23
4. Civil and Criminal Contempt.
 Civil contempt
 Introduction

When a person fails to follow an order of the court or judge, which would benefit the
opposing party, this is usually cited as civil contempt. Failure to pay child support or
to produce documents despite a court order are just a few examples of omissions that
may cause someone to be cited for civil contempt

 Criminal contempt
 Introduction

On the other hand, criminal contempt is an offense against the court or judge’s
authority and dignity. Insulting the judge, communicating with jurors, or disrupting
court proceedings are common examples of acts that may be cited for criminal
contempt.

 Similarities between criminal and civil contempt

Criminal and civil contempt also have similarities. Both types may arise in civil and
criminal proceedings. Both civil and criminal contempt cases may proceed
independently of the proceedings from which the contempt charge arose.

Contempt may also be direct or indirect. Direct contempt is committed in the presence
of the court or judge, or in close proximity to it, while indirect contempt is committed
outside the court.

One common misconception is the belief that criminal contempt involves the
imposition of a penalty, while civil contempt does not. However, both civil and
criminal contempt may involve the imposition of a fine, as well as some form of
detention or imprisonment.

 Criminal Contempt of Court Charges

Criminal contempt charges become separate charges from the underlying case. Unlike
civil contempt sanctions, criminal contempt charges may live on after resolution of
the underlying case.

24
One charged with criminal contempt generally gets the constitutional rights
guaranteed to criminal defendants, including the right to counsel, right to put on a
defense, and the right to a jury trial in certain cases. Charges of criminal contempt
must be proven beyond a reasonable doubt.

 Punishment for Civil Contempt of Court vs. Criminal Contempt of Court

Unlike criminal contempt sentences, which aim to punish the act of contempt, civil
contempt sanctions aim to either: (1) restore the rights of the party who was wronged
by the failure to satisfy the court's order; or (2) simply move an underlying
proceeding along. Civil contempt sanctions typically end when the party in contempt
complies with the court order, or when the underlying case is resolved.

Like those charged with criminal contempt, the court may order incarceration of
people held in civil contempt. However, unlike individuals charged with criminal
contempt, people held in civil contempt are generally not given the same
constitutional rights that are guaranteed to criminal contempt defendants.

25
5. Hikmat Ali v Ishwar Prasad Sharma

Hikmat Ali Khan vs Ishwar Prasad Arya & Ors on 28 January, 1997
Author: S Agrawal.
Bench: S.C. Agrawal, Sujata V. Manohar
PETITIONER:
HIKMAT ALI KHAN

Vs.

RESPONDENT:
ISHWAR PRASAD ARYA & ORS.

DATE OF JUDGMENT: 28/01/1997

BENCH:
S.C. AGRAWAL, SUJATA V. MANOHAR
J U D G M E N T S.C. AGRAWAL. J.

Ishwar Prasad Arya, respondent No.1, was registered as an advocate with the
Bar Council of Uttar Pradesh and was practicing at Badaun. An incident took
place on May 18, 1971 during lunch interval at about 1.55 p.m. in which
respondent No.1 assaulted his opponent Radhey Shyam in the court room of
Munsif/Magistrate, Bisauli at Badaun with a knife. A pistol shot is also said to
have been fired by him at the time of incident. After investigation he was
prosecuted for offences under Section 307 of the Indian Penal Code and
section 25 of the Arms Act. The Ist Temporary Civil and Sessions Judge, by
his judgment dated July 3, 1972, convicted him of the said offence and
sentenced him to undergo rigorous imprisonment for three years for the
offence under Section 307 I.P.C. and for a period of nine months for offence
under Section 25 of the Arms Act. The conviction and sentence for the offence
under Section 307 I.P.C. were maintained by the High Court by its judgment
dated September 10, 1975 in Criminal Appeal No. 1873 of 1972 but he was

26
given the benefit of doubt regarding offence under Section 25 of Arms Act
and the conviction and sentence for the said offence were set aside. Before he
could be arrested to undergo the punishment of rigorous imprisonment for
three years for offence under Section 307 I.P.C., a copy of letter No. Pr.
VI/Chh. Pa XXIII - 2016-75-76 dated April 28, 1976 purporting to have been
sent by Shri L.R. Singh, Deputy Secretary, Ministry of Home, U.P., Lucknow,
addressed to the District Magistrate, Badaun bearing endorsement No.
1513(II)-75-76 was received in the Court of the IIIrd Additional District and
Session Judge, Badaun, who was responsible for executing the order of the
court of the Ist Temporary Civil & Sessions Judge on its abolition. In the said
letter it was stated that the Governor has been pleased to suspend the
conviction of Ishwar Prasad Arya under Article 161 of the Constitution with
immediate effect and until further orders he should remain free. After
receiving the copy of the said letter dated April 28, 1979, stayed the
proceedings in the case and despite repeated inquiries by the court from the
State Government about the suspension of the sentences the execution of the
sentence awarded to respondent remained suspended till September 27, 1977,
when on receipt of a crash radiogram message from the Home Ministry,
Lucknow, it was found that the letter dated April 28,1976 was fraudulent and
thereupon a warrant for the arrest of respondent no.1 was issued by the court
on September 28, 1977 and he was arrested the same day and was sent to
Badaun Jail to undergo the imprisonment. On December 9, 1977 Shri G.S.
Sharma, IIIrd Additional District & Session Judge, Badaun, sent a complaint
containing these facts to the Chairman, Bar council of U.P., for taking action
against respondent No. 1 under section 35 of the Advocates Act ,
1961(hereinafter referred to as the Act'). On the basis of the said complaint
disciplinary proceedings (D.C. Case No. 70 of 1981) were initiated against
respondent No. 1 by the Bar Council of U.P. By order dated January 30, 1982
the Disciplinary committee of the Bar Council of U.P. found respondent No.1
guilty of gross professional misconduct by taking the benefit himself of a
forged and fabricated document which had been prepared at his behest. The
Disciplinary Committee of the Bar council of U.P. directed that respondent
No. 1 be debarred from practicing as an advocate for a period of two years
from the date of the service of the order. Respondent No.1 filed an appeal

27
(D.C. Appeal No. 4 of 1982) in the Bar Council of India against the order
dated January 30, 1982 passed by the Disciplinary Committee of the Bar
Council of U.P. The said appeal was allowed by the Disciplinary Committee
of the Bar Council of India by order dated June 8, 1984 and the order of the
Disciplinary Committee of the Bar Council of U.P dated January 30, 1982 was
set aside on the view that there was no material on the basis of which it could
reasonably be held that respondent No. 1 had prepared the document which
was subsequently found forged.

The appellant, Hikmat Ali Khan, had also submitted a complaint against
respondent No.1 to the Secretary, Bar Council of U.P., where in it was stated
that by order dated July 3, 1972 passed by the Temporary Civil & Session
Judge, Badaun the respondent had been convicted and sentenced to three years
rigorous imprisonment under Section 307 I.P.C. and his appeal had been
dismissed by the High Court by judgment dated September 10, 1975 and even
after the dismissal of his appeal respondent No. 1 he remained out of jail till
September 27, 1978 on the basis of a forged and fraudulent document
purported to have been sent by the Deputy Secretary, Ministry of Home, U.P.,
Lucknow and that during the said period he continued to practice as an
Advocate. In the said complaint, it was also mentioned that the name of
respondent No.1 is noted as a bad character in register No. 8 of Police Station,
Wazirgang, District Badaun and further that a number of criminal case have
been registered against him. It was prayed that a fresh inquiry may be made in
the matter and in case the facts are proved against respondent No. 1 his
registration as an advocate may be cancelled since he is a blot to the names of
all the advocates. On the basis of the said complaint of the appellant
proceedings (D.C. Case No. 40 of 1983) were initiated against respondent
No.1 by the Bar Council of U.P. IN the said proceedings, respondent No. 1
appeared and filed his written statement, but thereafter he did not appear and
participate in the proceedings. The Disciplinary Committee of Bar Council of
U.P proceeded ex parte against him. By order dated March 25, 1984 the
Disciplinary Committee found that respondent No. 1 was convicted and
sentenced under Section 307 I.P.C and under Section 25 of the Arm Act and
that his names of the bad character are entered. The Disciplinary Committee

28
held that it is unbecoming of an advocate to earn such a bad reputation in the
society and that respondent No. 1 was liable to be punished. The Disciplinary
Committee of the Bar Council of U.P. directed that respondent No. 1 be
debarred from practising as an advocate for a period of three years.
Respondent No. 1 filed an appeal (D.C. Appeal No. 17 of 1984) against the
said order passed by the Disciplinary Committee of the Bar Council of U.P.
The appellant also filed an appeal (D.C. Appeal No. 17A of 1984) against the
said order. Respondent No. 1, in his appeal, prayed that the punishment
imposed by the Disciplinary Committee of the Bar Council of U.P. be set
aside; the appellant, in his appeal, on the other hand, wanted the said
punishment to be enhanced and his name to be removed from the roll of
advocates. Both the appeals were disposed of by the Disciplinary Committee
of the Bar Council of the India by order dated September 8, 1985. It was
observed that the matter has already been considered by the Disciplinary
Committee of the Bar Council of India in its order dated June 8, 1984 in D.C.
Appeal No. 4 of 1982 whereby the order of the Bar Council of U.P. dated
January 30, 1982 suspending respondent No. 1 from practice for three years
had been set aside. The Disciplinary Committee of the Bar Council of India
held that there was no choice left with it but to accept the appeal in view of the
order dated June 8, 1984 passed by the Disciplinary Committee of the Bar
Council of U.P. dated March 25, 1984 in D.C. Case No. 40 of 1983 was set
aside. The Disciplinary Committee of the Bar Council of India held that there
was no choice left with it but to accept the appeal in view of the order dated
June 8, 1984 passed by the Disciplinary Committee of the Bar Council of U.P.
dated March 25, 1984 in D.C. Case No. 40 of 1983 was set aside.
Consequently, the appeal filed by the appellant was dismissed. Feeling
aggrieved by the said order dated September 8, 1985 passed by the
Disciplinary Committee of the Bar Council of India allowing D.C. Appeal No.
17 of 1984 filed by respondent No. 1 and dismissing D.C Appeal No. 17A of
1984 filed by him, the appellant has filed this appeal. The Disciplinary
Committee of the Bar Council of India held that there was no choice left with
it but to accept the appeal in view of the order dated June 8, 1984 passed by
the Disciplinary Committee of the Bar Council of U.P. dated March 25, 1984
in D.C. Case No. 40 of 1983 was set aside. Consequently, the appeal filed by

29
the appellant was dismissed. Feeling aggrieved by the said order dated
September 8, 1985 passed by the Disciplinary Committee of the Bar Council
of India allowing D.C. Appeal No. 17 of 1984 filed by respondent No. 1 and
dismissing D.C Appeal No. 17A of 1984 filed by him, the appellant has filed
this appeal.

Shri Subodh Markendaya, the learned counsel for the appellant, has urged that
in passing the order dated September 8, 1985 the Disciplinary Committee of
the Bar Council of India has failed to appreciate that in the earlier order dated
June 8, 1984 in D.C. Appeal No. 4 of 1982 the Disciplinary Committee of the
Bar Council of India had given the benefit of doubt to respondent No. 1 in
respect of fabrication of letter dated April 28, 1976 on the basis of which he
was able to avoid being arrested for a period of about 16 months from April
30, 1976 to September 28, 1977 for undergoing the sentence of rigorous
imprisonment imposed on him under section 307 I.P.C and that in the said
proceedings the Disciplinary Committee of the Bar Council of India had not
considered the conduct of respondent No. 1 involving his conviction for the
offence under Section 307 I.P.C and his being sentenced to rigorous
imprisonment for three years. According to Shri Markendaya, the said conduct
of respondent No.1 was the subject matter of the complaint filed by the
appellant for which conduct the Disciplinary Committee of the Bar Council of
U.P. had imposed the punishment of debarring him from practising as an
advocate for a period of three years. Shri Markendaya also urged that in his
complaint the appellant had also pointed out that the name of respondent No. 1
is entered in Register No. 8 maintained at Kotwali Badaun and the said
register contains the names of bad character and that this fact was also found
established by the Disciplinary Committee of the Bar Council of U.P. and it
was observed that it is unbecoming of an advocate to earn such a bad
reputation in the society. The submission of Shri Markendaya is that having
regard to the gravity of the mis-conduct of respondent No. in assaulting his
opponent in the court Room with a knife and his having been committed the
offence under Section 307 I.P.C and his being sentenced to undergo rigorous
imprisonment for three years in connection with the said incident, the
punishment of removal of the name of respondent No. 1 from the roll of

30
advocates should have been imposed on him and that the Disciplinary
Committee of the Bar Council of U.P. was in error in imposing the light
punishment of debarring respondent No. 1 from practising as an advocate for a
period of three years only and that this was a fit case in which the appeal filed
by the appellant should have been allowed by the Disciplinary Committee of
the Bar Council of India.

Respondent No. 1 is represented by Shri H.K. Puri. After arguing for some
time Shri Puri sought leave of the Court for being discharged as an advocate of
respondent No. 1 when he was asked to address the Court on the appeal
regarding enhancement of the punishment imposed on respondent No. 1. We,
however, did not grant leave sought by Shri Puri for being discharged as a
counsel for respondent No. 1.

The order dated March 25, 1984 passed by the Disciplinary Committee of the
Bar Council of U.P in D.C. Case No. 40 of 1983 arising out of the complaint
submitted by the appellant clearly holds that from material available on record
it is established that respondent No. 1 was convicted and sentenced for the
offence under Section 307 I.P.C. and under Section 25 of the Arms Act and
that his name is recorded in Register No. 8 maintained at Kotwali Badaun
which is a register in which the names of the bad characters are entered. It is
no doubt true that the conviction of respondent No. 1 for the offence under
Section 25 of the Arms Act was set aside by the High Court, on appeal, but his
conviction and sentence for the offence under Section 307 I.P.C. was
maintained by the High Court. The said conviction under Section 307 I.P.C.
was maintained by the High Court. The said conviction under Section 307
I.P.C related to an incident which took place in the court room wherein
respondent No. 1 had assaulted his opponent, Shri Radhey Shyam, with a
knife. The Disciplinary Committee of the Bar Council of India, while dealing
with the appeal of respondent No. 1 as well as the cross appeal of the appellant
which were filed against the said order of the Disciplinary Committee of the
Bar Council of U.P., failed to take not that the mis-conduct of respondent No.
1 which was the subject matter of the complaint in D.C. Case No. 4 of 1982
arising out of the complaint filed by Shri G.S. Sharma, IIIrd Additional
District and Sessions Judge, Badaun, was different from the mis-conduct

31
which had been found established on the basis of the complaint made by the
appellant. The complaint of Shri G.S. Sharma, which gave rise to D.C. Case
No. 70 of 1981 before the Disciplinary Committee of the Bar Council of U.P.,
related to fabrication of the copy of the letter No. Pr. VI/Chh. Pa XXIII-2016-
75- 76 dated April 28, 1976 from Shri L.R. Singh, Deputy Secretary, Ministry
of Home, U.P., Lucknow, to the District Magistrate, Badaun that was received
in the court of III rd Additional & Session Judge vide endorsement No.
1513(II)-75- 76 wherein it was stated that the Governor was pleased to
suspend the conviction of respondent No. 1 under Article 161 of the
Constitution with immediate effect and that until further order he should
remain free. In the said complaint of Shri G.S. Sharma, the Disciplinary
Committee of the Bar Council of U.P., by order dated January 30, 1982, found
respondent No. 1 guilty of gross professional mis-conduct by taking the
benefit himself of a forged and fabricated document which had been prepared
at his behest. The Disciplinary Committee of the Bar Council of India, in its
order dated June 8, 1984 in D.C Appeal No. 4 of 1982, felt that there was no
material from which it could reasonably be held that respondent No. 1 had
prepared the document which was subsequently found forged and that
respondent No. 1 could be given the benefit of doubt and therefore, the order
dated January 30, 1982 passed by the Disciplinary Committee of the Bar
Council of U.P. in D.C case no. 70 of 1981 was set aside. The said order of the
Disciplinary Committee of the Bar Council of India did not have any bearing
on the conduct of respondent No.1 which lead to his conviction for the offence
under Section 307 I.P.C and his being sentenced to rigorous imprisonment for
three years and his name being entered as a bad character in Register No. 8 of
Kotwali Badaun which was the subject matter of the complaint made by the
appellant and on the basis of which the Disciplinary Committee of the Bar
Council of U.P had passed the order dated March 25, 1984 in D.C Case No. 40
of 1983 debarring respondent No. 1 from practising as an advocate for a
period of three years. The Disciplinary Committee of the Bar Council of India
was, therefore, in error in setting aside the order dated March 25, 1984 passed
by the Disciplinary Committee of the Bar Council of U.P merely on the basis
of its order dated June 8, 1984 in D.C. Case No. 4 of 1982. The order of the
Disciplinary Committee of the Bar Council of India dated September 8, 1985

32
allowing D.C Appeal No. 17 of 1984 filed by respondent No. 1 cannot,
therefore, be sustained and has to be set aside. Having regard to the findings
recorded by the Disciplinary Committee of the Bar Council of U.P. regarding
the misconduct of respondent No. 1 that has been found established from the
record, we find no merit in D.C Appeal No. 17 of 1984 filed by respondent
No. 1 against order dated March 25, 1984 passed by the Disciplinary
Committee of the Bar Council of U.P and the said appeal is liable to be
dismissed.

We will now come to D.C. Appeal No. 17-A of 1984 filed by the appellant
which raises the question whether the punishment imposed by the Disciplinary
committee of the Bar council of U.P. in its dated March 25, 1984 is adequate
having regard to the gravity of the miscount of respondent No.1. The
Misconduct of respondent No. 1 that has been found established is that he had
assaulted his opponent Shri Radhey Shyam with a knife in the court room and
he has been convicted of the offence under section 307 I.P.C. and has been
sentenced to rigorous imprisonment for a period of three years. It has also
been found established that the name of respondent No.1 was contained in
register No. 8 maintained at Kotwali Badaun which is a register where in the
names of bad characters are entered. The acts of misconduct found established
are serious in nature. Under sub- section (30 of section 35 of the Act the
Disciplinary committee of the state Bar council is empowered to pass on order
imposing punishment on an advocate found guilty of professional or other
misconduct. Such punishment can reprimand clause (b)] suspension from
practice for a certain period [clause (c)] and removal of the name of the
advocate from the state roll of advocate [clause (d)] depending on the gravity
of the misconduct is such as to show that the advocate is unworthy of
remaining in the profession. In this context it may be pointed out that under
section 24(a) of the Act a person who is convicted of an offence involving
moral turpitude which would disqualify a person from being enrolled as an
advocate has to be considered serious Misconduct when found to have been
committed by a person who is enrolled as an advocate and it would call for the
imposition of the punishment of removal of the name of the advocate from the
roll of advocates. In The instant case respondent no.1 has been convicted of

33
the offence of attempting to commit murder punishment of removal of the
name of respondent No. 1 from the state roll of advocates and the Disciplinary
committee of the Bar council of U.P., in passing the punishment of debarring
respondent No.1 having regard to the facts of the case the proper punishment
will to be imposed on respondent No.1 under section 35 of the Act should
have been to direct the removal of his name from the state roll of advocates.
The appeal filled by the appellant therefore deserves to be allowed.

For the reasons aforementioned the appeal id allowed the impugned order
dated September 8 1985 passed by the Disciplinary committee of the Bar
council of India in D.C. appeals nos. 17 and 17-A of 1984 passed by the
Disciplinary committee of the Bar council of U.P. in D.C. case No. 40 of 1983
is upheld with the modification that instead of his being debarred from
practising as an advocate for a period of three year the name of respondent no.
1 be removed from the state roll of advocates No. order as to costs.

34
6. R.D. Saxena v Balram Prasad Sharma

PETITIONER:
R.D. SAXENA

Vs.

RESPONDENT:
BALRAM PRASAD SHARMA

DATE OF JUDGMENT: 22/08/2000

BENCH:
K.T.Thomas
JUDGMENT:
THOMAS, J.

The main issue posed in this appeal has sequential importance for members of
the legal profession. The issue is this: Has the advocate a lien for his fees on
the litigation papers entrusted to him by his client? In this case the Bar Council
of India, without deciding the above crucial issue, has chosen to impose
punishment on a delinquent advocate debarring him from practicing for a
period of 18 months and a fine of Rs.1000/-. The advocate concerned was
further directed to return all the case bundles which he got from his client
respondent without any delay. This appeal is filed by the said advocate under
Section 38 of the Advocates Act, 1961.
As the question involved in this appeal has topical importance for the legal
profession we heard learned counsel at length. To appreciate the contentions
we would present the factual backdrop as under:
Appellant, now a septuagenarian, has been practicing as an advocate mostly in
the courts at Bhopal, after enrolling himself as a legal practitioner with the
State Bar Council of Madha Pradesh. According to him, he was appointed as
legal advisor to the Madhya Pradesh State Co- operative Bank Ltd. (Bank, for

35
short) in 1990 and the Bank continued to retain him in that capacity during the
succeeding years. He was also engaged by the said Bank to conduct cases in
which the Bank was a party. However, the said retainership did not last long.
On 17.7.1993 the Bank terminated the retainership of the appellant and
requested him to return all the case files relating to the Bank. Instead of
returning the files the appellant forwarded a consolidated bill to the Bank
showing an amount of Rs.97100/- as the balance payable by the Bank towards
the legal remuneration to which he is entitled. He informed the Bank that the
files would be returned only after setting his dues.
Correspondence went on between the appellant and the Bank regarding the
amount, if any, payable to the appellant as the balance due to him. Respondent
Bank disclaimed any liability outstanding from them to the appellant. The
dispute remained unresolved and the case bundles never passed from
appellants hands. As the cases were pending the Bank was anxious to have the
files for continuing the proceedings before the courts/tribunals concerned. At
the same time the Bank was not disposed to capitulate to the terms dictated by
the appellant which they regarded as grossly unreasonable. A complaint was
hence filed by the Managing Director of the Bank, before the State Bar
Council (Madhya Pradesh) on 3.2.1994. It was alleged in the complaint that
appellant is guilty of professional misconduct by not returning the files to his
client.
In the reply which the appellant submitted before the Bar Council he admitted
that the files were not returned but claimed that he has a right to retain such
files by exercising his right of lien and offered to return the files as soon as
payment is made to him.

The complaint was then forwarded to the Disciplinary Committee of the

District Bar Council. The State Bar Council failed to dispose of the complaint
even after the expiry of one year. So under Section 36-B of the Advocates Act
the proceedings stood transferred to the Bar Council of India. After holding
inquiry the Disciplinary Committee of the Bar Council of India reached the
conclusion that appellant is guilty of professional misconduct. The
Disciplinary Committee has stated the following in the impugned order:

36
On the basis of the complaint as well as the documents available on record we
are of the opinion that the Respondent is guilty of professional misconduct and
thereby he is liable for punishment. The complainant is a public institution. It
was the duty of the Respondent to return the briefs to the Bank and also to
appear before the committee to revert his allegations made in application dated
8.11.95. No such attempt was made by him.

In this appeal learned counsel for the appellant contended that the failure of
the Bar Council of India to consider the singular defence set up by the
appellant i.e. he has a lien over the files for his unpaid fees due to him, has
resulted in miscarriage of justice. The Bank contended that there was no fee
payable to the appellant and the amount shown by him was on account of
inflating the fees. Alternatively, the respondent contended that an advocate
cannot retain the files after the client terminated his engagement and that there
is no lien on such files. On the basis of the complaint as well as the documents
available on record we are of the opinion that the Respondent is guilty of
professional misconduct and thereby he is liable for punishment. The
complainant is a public institution. It was the duty of the Respondent to return
the briefs to the Bank and also to appear before the committee to revert his
allegations made in application dated 8.11.95. No such attempt was made by
him.

In this appeal learned counsel for the appellant contended that the failure of
the Bar Council of India to consider the singular defence set up by the
appellant i.e. he has a lien over the files for his unpaid fees due to him, has
resulted in miscarriage of justice. The Bank contended that there was no fee
payable to the appellant and the amount shown by him was on account of
inflating the fees. Alternatively, the respondent contended that an advocate
cannot retain the files after the client terminated his engagement and that there
is no lien on such files.
We would first examine whether an advocate has lien on the files entrusted to
him by the client. Learned counsel for the appellant endeavored to base his
contention on Section 171 of the Indian Contract Act which reads thus:

37
Bankers, factors, harbingers, attorneys of a High Court and policy- brokers
may, in the absence of a contract to the contrary, retain, as a security for a
general balance of account, any goods bailed to them; but no other persons
have a right to retain, as a security for such balance, goods bailed to them,
unless there is an express contract to that effect.
Files containing copies of the records (perhaps some original documents also)
cannot be equated with the goods referred to in the section. The advocate
keeping the files cannot amount to goods bailed. The word bailment is defined
in Section 148 of the Contract Act as the delivery of goods by one person to
another for some purpose, upon a contract that they shall be returned or
otherwise disposed of according to the directions of the person delivering
them, when the purpose is accomplished. In the case of litigation papers in the
hands of the advocate there is neither delivery of goods nor any contract that
they shall be returned or otherwise disposed of. That apart, the word goods
mentioned in Section 171 is to be understood in the sense in which that word
is defined in the Sale of Goods Act. It must be remembered that Chapter-VII
of the Contract Act, comprising sections 76 to 123, had been wholly replaced
by the Sales of Goods Act, 1930. The word goods is defined in Section 2(7) of
the Sales of Goods Act as every kind of movable property other than
actionable claims and money; and includes stock and shares, growing crops,
grass, and things attached, to or forming part of the land which are agreed to
be severed before sale or under the contract of sale.
Thus understood goods to fall within the purview of Section 171 of the
Contract Act should have marketability and the person to whom it is bailed
should be in a position to dispose it of in consideration of money. In other
words the goods referred to in Section 171 of the Contract Act are saleable
goods. There is no scope for converting the case files into money, nor can they
be sold to any third party. Hence, the reliance placed on Section 171 of the
Contract Act has no merit.

In England the solicitor had a right to retain any deed, paper or chattel which
has come into his possession during the course of his employment. It was the
position in common law and it later recognized as the solicitors right under
Solicitors Act, 1860. In Halsbury’s Laws of England, it is stated thus (vide

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paragraph 226 in volume 44): 226. Solicitor’s rights. At common law a
solicitor has two rights which are termed liens. The first is a right to retain
property already in his possession until he is paid costs due to him in his
professional capacity, and the second is a right to ask the court to direct that
personal property recovered under a judgment obtained by his exertions stand
as security for his costs of such recovery. In addition, a solicitor has by statute
a right to apply to the court for a charging order on property recovered or
preserved through his instrumentality in respect of his taxed costs of the suit,
matter or proceeding prosecuted or defended by him.
Before India attained independence different High Courts in India had adopted
different views regarding the question whether an advocate has a lien over the
litigation files kept with him. In P. Krishnamachariar vs. The Official
Assignee of Madras, (AIR 1932 Madras 256) a Division Bench held that an
advocate could not have such a lien unless there was an express agreement to
the contrary. The Division Bench has distinguished an earlier decision of the
Bombay High Court in Tyabji Dayabhai & Co. vs. Jetha Devji & Co. (AIR
1927 Bombay 542) wherein the English law relating to the solicitors lien was
followed. Subsequently, a Full Bench of the Madras High Court in 1943
followed the decision of the Division Bench. A Full Bench of the Patna High
Court in In re B.N. Advocate in the matter of Misc. Judl. Case No.18/33 (AIR
1933 Pat 571) held the view that an advocate could not claim a right to retain
the certified copy of the judgment obtained by him on the premise that an
appeal was to be filed against it. Of course the Bench said that if the client had
specifically instructed him to do so it is open to him to keep it.

After independence the position would have continued until the enactment of
the Advocates Act 1961 which has repealed a host of enactments including
Indian Bar Council Act. When the new Bar Council of India came into
existence it framed Rules called the Bar Council of India Rules as empowered
by the Advocates Act. Such Rules contain provision specifically prohibiting
an advocate from adjusting the fees payable to him by a client against his own
personal liability to the client. As a rule an Advocate shall not do anything
whereby he abuses or takes advantage of the confidence reposed in him by his
client, (vide Rule 24)

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In this context a reference can be made to Rules 28 and 29 which are extracted
below:

28. After the termination of the proceeding, the Advocate shall be at liberty to
appropriate towards the settled fee due to him, any sum remaining unexpended
out of the amount paid or sent to him for expenses, or any amount that has
come into his hands in that proceeding.

29. Where the fee has been left unsettled, the Advocate shall be entitled to
deduct, out of any moneys of the client remaining in his hands, at the
termination of the proceeding for which he had been engaged, the fee payable
under the rules of the Court, in force for the time being, or by then settled and
the balance, if any, shall be refunded to the client.

Thus, even after providing a right for an advocate to deduct the fees out of any
money of the client remaining in his hand at the termination of the proceeding
for which the advocate was engaged, it is important to notice that no lien is
provided on the litigation files kept with him. In the conditions prevailing in
India with lots of illiterate people among the litigant public it may not be
advisable also to permit the counsel to retain the case bundle for the fees
claimed by him. Any such lien if permitted would become susceptible to great
abuses and exploitation.
There is yet another reason which dissuades us from giving approval to any
such lien. We are sure that nobody would dispute the proposition that the
cause in a court/tribunal is far more important for all concerned than the right
of the legal practitioner for his remuneration in respect of the services
rendered for espousing the cause on behalf of the litigant. If a need arises for
the litigant to change his counsel pendente lite, that which is more important
should have its even course flowed unimpeded. Retention of records for the
unpaid remuneration of the advocate would impede such course and the cause
pending judicial disposal would be badly impaired. If a medical practitioner is
allowed a legal right to withhold the papers relating to the treatment of his
patient which he thus far administered to him for securing the unpaid bill that
would lead to dangerous consequences for the uncured patient who is wanting

40
to change his doctor. Perhaps the said illustration may be an over-statement as
a necessary corollary for approving the lien claimed by the legal practitioner.
Yet the illustration is not too far-fetched. No professional can be given the
right to withhold the returnable records relating to the work done by him with
his clients matter on the strength of any claim for unpaid remuneration. The
alternative is that the professional concerned can resort to other legal remedies
for such unpaid remuneration.

A litigant must have the freedom to change his advocate when he feels that the
advocate engaged by him is not capable of espousing his cause efficiently or
that his conduct is prejudicial to the interest involved in the lis, or for any
other reason. For whatever reason, if a client does not want to continue the
engagement of a particular advocate it would be a professional requirement
consistent with the dignity of the profession that he should return the brief to
the client. It is time to hold that such obligation is not only a legal duty but a
moral imperative.

In civil cases, the appointment of an advocate by a party would be deemed to

be in force until it is determined with the leave of the court, (vide order 3, Rule
4(1) of the Code of Civil Procedure). In criminal cases, every person accused
of an offence has the right to consult and be defended by a legal practitioner of
his choice which is now made a fundamental right under Article 22(1) of the
Constitution. The said right is absolute in itself and it does not depend on other
laws. In this context reference can be made to the decision of this Court in
State of Madhya Pradesh vs. Shobharam and ors. (AIR 1966 SC 1910). The
words of his choice in Article 22(1) indicate that the right of the accused to
change an advocate whom he once engaged in the same case, cannot be
whittled down by that advocate by withholding the case bundle on the premise
that he has to get the fees for the services already rendered to the client.
If a party terminates the engagement of an advocate before the culmination of
the proceedings that party must have the entire file with him to engage another
advocate. But if the advocate who is changed midway adopts the stand that he
would not return the file until the fees claimed by him is paid, the situation
perhaps may turn to dangerous proportion. There may be cases when a party

41
has no resource to pay the huge amount claimed by the advocate as his
remuneration. A party in a litigation may have a version that he has already
paid the legitimate fee to the advocate. At any rate if the litigation is pending
the party has the right to get the papers from the advocate whom he has
changed so that the new counsel can be briefed by him effectively. In either
case it is impermissible for the erstwhile counsel to retain the case bundle on
the premise that fees is yet to be paid.
Even if there is no lien on the litigation papers of his client an advocate is not
without remedies to realize the fee which he is legitimately entitled to. But if
he has a duty to return the files to his client on being discharged the litigant
too has a right to have the files returned to him, more so when the remaining
part of the lis has to be fought in the court. This right of the litigant is to be
read as the corresponding counterpart of the professional duty of the advocate.

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.

Corpus Juris Secundum, contains the following passage at page 740 (vol.7):

Professional misconduct may consist in betraying the confidence of a client, in

attempting by any means to practise a fraud or impose on or deceive the court
or the adverse party or his counsel, and in fact in any conduct which tends to
bring reproach on the legal profession or to alienate the favorable opinion
which the public should entertain concerning it.

The expression professional misconduct was attempted to be defined by

Darling, J., in In re A Solicitor ex parte the Law Society [(1912) 1 KB 302] in
the following terms: 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 dishonorable by his professional brethren of good

42
repute and competency, then it is open to say that he is guilty of professional
misconduct.

In this context it is to be mentioned that the aforesaid definition secured

approval by the Privy Council in George Frier Grahame vs. Attorney-General,
Fiji, (1936 PC

224). We are also inclined to take that wide canvass for understanding the
import of the expression misconduct in the context in which it is referred to in
Section 35 of the Advocates Act.
We, therefore, that the refusal to return the files to the client when he
demanded the same amounted to misconduct under Section 35 of the Act.
Hence, the appellant in the present case is liable to punishment for such
misconduct.

However, regarding the quantum of punishment we are disposed to take into

account two broad aspects: (1) this court has not pronounced, so far, on the
question whether advocate has a lien on the files for his fees. (2) the appellant
would have bona fide believed, in the light of decisions of certain High
Courts, that he did have a lien. In such circumstances it is not necessary to
inflict a harsh punishment on the appellant. A reprimand would be sufficient
in the interest of justice on the special facts of this case.

We, therefore, alter the punishment to one of reprimanding the appellant.

However, we make it clear that if any advocate commits this type of
professional misconduct in future he would be liable to such quantum of
punishment as the Bar Council will determine and the lesser punishment
imposed now need not be counted as a precedent.

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  Reference:

Legal ethics by Kailash rai

 Webliography:

https://www.lawyersclubindia.com/amp/articles/rights-and-duties-of-an-advocate-
10009.as

https://www.lawyersclubindia.com/judiciary/ex-capt-harish-uppal-v-union-of-india-
whether-the-lawyers-have-a-right-to-strike-5134.asp

https://sherianajamii.com/2020/02/advocacy-skills.html

https://lawrina.com/blog/civil-contempt-vs-criminal-contempt/

https://indiankanoon.org/doc/1933600/

https://indiankanoon.org/doc/151656/

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