15 April 2022 6:30 AM GMT
The Madras High Court has observed that in criminal proceedings, the legal heirs of the original complainant can apply for continuation of proceedings against the accused upon the death of the original complainant. The court further quashed the order passed by the disciplinary committee of Bar Council of Tamil Nadu and Puducherry which had held that the legal heirs cannot step into the...
The Madras High Court has observed that in criminal proceedings, the legal heirs of the original complainant can apply for continuation of proceedings against the accused upon the death of the original complainant.
The court further quashed the order passed by the disciplinary committee of Bar Council of Tamil Nadu and Puducherry which had held that the legal heirs cannot step into the shoes of the original complainant and cannot carry on disciplinary proceedings against the advocates.
The bench of Justice P.N Prakash and Justice AA Nakkiran opined that the Disciplinary Committee was swayed by the fact that the proceedings before it were quasi-criminal, and the view that legal heirs of the complainant cannot be substituted in place of the original complainant amounts to woeful ignorance of the settled position in criminal law.
One T.S Varadhammal owning 25 acres of property gave power of attorney to her son Jagannathan to manage the subject property. While so, one Nagaraj, projecting himself as the owner of the property and giving the property as collateral security obtained a loan of Rs. 4 lacks from one Rajendran through a loan agreement. The agreement also contained an arbitration clause.
On a contrived premise that a dispute has arisen between the said Nagaraj and Rajendran, an alleged collusive arbitration proceeding was initiated in conspiracy with some advocates and a fictitious award was passed on 31.10.2014 in the said arbitration proceeding, viz., AR.O.P. No.36 of 2014 in respect of the subject property. The said fake award directed Nagaraj to execute a sale deed in respect of the subject property in favour of Rajendran.
On getting information about this, Jagannathan approached the police and lodged complaints. He also lodged complaints before the Bar Council of Tamil Nadu and Puducherry against the three advocates – Rajaram, Ravi and Muthusamy who connived with Nagaraj and Rajendran. The Bar Council suspended the practice of these advocates pending disciplinary proceedings.
While so, Jagannathan filed a writ petition seeking to constitute an independent committee for conducting the enquiries. During the pending of this writ, Ravi and Muthusamy filed applications in the disciplinary proceedings to revoke the order of suspension. Apprehending that the council may revoke suspension, Jagannathan filed another writ to restrain the council.
Considering the seriousness of the allegations against the advocates, the Division Bench passed an order staying the applications filed by the advocates and directing the bar council to continue with the disciplinary proceedings.
While so, Jagannathan passed away and his widow and two children filed applications before the Bar Council for substituting them in the name of Jagannathan and for continuing disciplinary proceedings. These applications were however dismissed by the Bar Council holding that the legal heirs cannot step into the shoes of Jagannathan and as a result the disciplinary proceedings were closed and the advocates resumed practice. It was against this order of dismissal that the present writ was filed.
The court considered it best not to delve into the merits of the complaints made against the advocates and limited itself to decide the legal validity of the order passed by the Bar Council.
The court held that the Disciplinary Committee failed to consider Part VII of the Bar Council of India Rules, which sets out the procedure to be followed by the Disciplinary Committee while enquiring into a complaint of misconduct.
Rule 11 of Chapter I in Part VII of the Bar Council of India Rules reads as follows:
"11 (1) If in any enquiry pending before the Disciplinary Committee, the complainant dies and there is no representative who is willing to conduct the case on his behalf, the Disciplinary Committee may, having regard to the allegations made in the complaint and the evidence available, make a suitable order either to proceed with the enquiry or to drop it.(2) (a) In the case of an enquiry against only one advocate, on his death the Disciplinary Committee shall record the fact of such death and drop the proceedings. (b) Where the enquiry is against more than one advocate, on the death of one of them, the Disciplinary Committee may continue the enquiry against the other advocate unless it decides otherwise."
A bare reading of the section makes it clear that the Disciplinary Committee has powers to continue with the proceedings even when the complainant dies and there are no legal representatives willing to conduct the case. The court therefore opined that –
"The logical sequitur is that where the legal heirs have come forward to prosecute the complaint in place of the deceased, the Disciplinary Committee is not powerless to order substitution and, at any rate, cannot reject their request on the specious ground of abatement."
The enquiry is dropped only when the enquiry is against an advocate and who has died. The reason for this is that the punishments prescribed under Section 35(3)(b) (c) and (d) of the Advocates Act, 1961, cannot be inflicted if the Advocate is dead.
The court also drew attention to the decision of Supreme Court in Rashida Kamaluddin Syed v. Shaikh Saheblal Mardan (2007) where under similar circumstances the court had held that it was open to the sons of the deceased complainant to apply for continuation of the proceedings under the accused persons and by granting such prayer no illegality has been committed by the courts.
Power of High Court to grant the prayer
It was also argued by one of the advocates that the appropriate remedy for the petitioner was to file an appeal under Section 37 of the Advocates Act before the Bar Council Of India and not a writ petition before the High Court. To this, the court relied on the Apex Court decision in Magadh Sugar and Energy Limited v. State of Bihar and others(2021) wherein it was held that if the order or proceedings under challenge is wholly sans jurisdiction, the High Court is not powerless to issue an appropriate writ.
In the present case, the court was satisfied that the Disciplinary Committee had acted sans jurisdiction by ignoring Rules 11(1) and 11(2)(a) of the Bar Council of India Rules and deemed it appropriate to correct the error by issuance of writ as prayed for.
Mr A Ilayaperumal represented the petitioners while the Bar Council was represented by Mr. C.K Chandrasekar. Mr PV Ravi was represented by Mr Arun Anbumani and Mr PK Muthusamy was represented by Mr. N Manokaran.
Case Title: K.J Sumathy and Ors v. The Chairman, Bar Council of Tamil Nadu and Puducherry and Ors.
Case No: W.P No 20601 of 2021 and W.P No 20606 of 2021