Full Judgment Text
ITEM NO.48 COURT NO.10 SECTION IIIA
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No. 7133/2013
BAR COUNCIL OF ANDHRA PRADESH Appellant(s)
VERSUS
B.NARAYAN SWAMY & ANR. Respondent(s)
(With application for ex-parte stay and office report)
Date : 15/09/2014 This appeal was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE FAKKIR MOHAMED IBRAHIM KALIFULLA
HON'BLE MR. JUSTICE SHIVA KIRTI SINGH
For Appellant(s) Mr. P. Vishwanatha Shetty, Sr. Adv.
Mr. B. Ramana Murthy, A.O.R.
Mr. Sumanth Nookala, Adv.
For Respondent(s) Mr. Annam D. N. Rao, A.O.R.
For RR 1 Ms. Neelam Jain, Adv.
Mr. Sudipto Sircar, Adv.
Ms. Vaishali R., Adv.
For RR 2 Mr. Ardhendumauli Kumar Prasad, A.O.R.
UPON hearing counsel the Court made the following
O R D E R
For the reasons recorded in the signed
reportable order, the appeal stands allowed,
impugned order is set aside, the order of the
Signature Not Verified
Digitally signed by
Kalyani Gupta
Date: 2014.09.20
12:03:05 IST
Reason:
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appellant dated 5 December, 2009 stands restored
Civil Appeal No. 7133 of 2013
with the above modification as regards punishment
imposed.
[KALYANI GUPTA]
[SHARDA KAPOOR]
COURT MASTER
COURT MASTER
[SIGNED REPORTABLE ORDER IS PLACED ON THE FILE.]
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7133 OF 2013
BAR COUNCIL OF ANDHRA PRADESH ….. APPELLANT
VERSUS
B. NARAYAN SWAMY & ANR. ….. RESPONDENTS
O R D E R
FAKKIR MOHAMED IBRAHIM KALIFULLA J.
1. Delay condoned.
1.1 Bar Council of Andhra Pradesh is the appellant.
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Challenge is to the order dated 17 March, 2012 passed by s
the Disciplinary Committee of the Bar Council of India in
D.C. Appeal No. 31 of 2010 in and by which the Bar Council of
India set aside the order of punishment of the appellant
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dated 5 December, 2009, imposed on respondent No.1 herein
who is a practising Advocate in the State of Andhra Pradesh
for certain alleged misconduct.
2. The appellant passed its order against the
Civil Appeal No. 7133 of 2013
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respondent No. 1 on 5 December, 2009 in Complaint Case No.
34 of 2008 holding that the first respondent committed the
misconduct of violating the terms and conditions of his
appointment as Notary in attesting the documents and misused
his position as a Notary and failed to follow the provisions
of the Notaries Act and the Indian Stamp Act. Reliance was
placed upon Exhibits C3 to C6 and D1 to D2 in support of its
conclusion about the guilt of respondent No. 1. As a matter
of fact, the above documents C1 to C2, photocopy of which are
placed before us discloses that respondent No. 1 had attested
blank stamp papers of the value of Rs. 10/- and Rs.20/- of
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three different dates namely, 8 March, 2007, 16 August,
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2007 and 27 October, 2007 by affixing the seal of Notary
and as an Advocate. The above documents were stated to have
been forwarded to the appellant by the Registrar General of
the High Court based on a complaint made by one, Ramchandra
Rao, a graduate and a private employee in Hyderabad who
brought to the notice of the High Court about the
professional misconduct of respondent No. 1 herein.
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3. In its detailed order dated 5 December, 2009 the
appellant held that the conduct of the first respondent
in having abused his position as a Notary by attesting
blank stamp papers and by affixing signature along with
the rubber stamp impression were in violation of the
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Civil Appeal No. 7133 of 2013
provisions of the Notaries Act in particular Section 35
of the Advocates Act. Though respondent No. 1 contended
that his role as a Notary is different from his status as
an Advocate, the said stand of respondent No. 1 was
rightly rejected by the appellant.
4. Unfortunately, by the impugned order, the Bar
Council of India without appreciating the legal position
under the Notaries Act as well as the Advocates Act, in a
superficial manner, proceeded to hold that violation of
the provisions of the Stamp Act and Notaries Act will have
no impact on the conduct of respondent No. 1 vis-a-vis
his status as an Advocate. What was omitted to be noted
by the Bar Council of India was that the very recognition
of the respondent No. 1 as a Notary under the provisions
of the Notaries Act was by virtue of his status as an
Advocate. The status of a person as an Advocate was sine
qua non to be recognized as a Notary. Section 2(c)
defines ‘legal professional’ to mean an advocate entered
in any roll under the provisions of the Advocates Act,
1961. Under Section 3 of the said Act, the Central and
the State Governments for the whole or any part of India
or for the whole or any part of the State respectively is
empowered to appoint a Notary, any legal professional or
other persons who possess such qualification as may be
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Civil Appeal No. 7133 of 2013
prescribed. In such circumstances, when the first
respondent by virtue of his status as an Advocate was
appointed as a Notary, certainly he cannot be heard to
state that his role as a Notary should be delinked from
his status as an Advocate and that for whatever violation
he committed in his capacity as a Notary no action can be
taken against him by the appellant, namely, the Bar
Council of Andhra Pradesh. Therefore, we are not in a
position to sustain the reasoning of the Bar Council of
India in setting aside the order of punishment imposed by
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the appellant in its order dated 5 December, 2009
debarring the first respondent from practising as an
Advocate.
5. In this context, we also wish to refer to the
Three Judge Bench decision of this Court reported in
Noratanmal Chouraria v. M.R. Murli and Another (2004) 5
SCC 689 wherein while examining as to what would
constitute 'misconduct' as an Advocate under the
provisions of the Advocates Act, 1961, this Court has held
as under in paragraphs 7 and 8:-
“7. Misconduct has not been defined in
the Advocates Act, 1961. Misconduct, inter
alia, envisages breach of discipline,
althougb it would not be possible to lay
down exhaustively as to what would
constitute conduct and indiscipline, which,
however, is wide enough to include wrongful
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Civil Appeal No. 7133 of 2013
omission or commission whether done or
omitted to be done intentionally or
unintentionally. It means, “improper
behavious, intentional wrongdoing or
deliberate violation of a rule or standard
of behaviour”.
8. Misconduct is said to be a
transgression of some established and
definite rule of action, where no
discretion is left except what necessity
may demand; it is a violation of definite
law.”
6. In such circumstances, we are convinced that the
conduct of the first respondent in having provided scope
for misusing the blank stamp papers with his attestation
by affixing his signature as well as rubber stamp
impressions is a very serious conduct definitely
attracting the provisions of the Advocates Act, 1961 for
taking appropriate proceedings against him for misconduct
and also for passing appropriate orders of punishment.
7. Mr. A.D.N. Rao, learned counsel appearing for
respondent No. 1 contended that the issuance of blank
stamp papers by the first respondent was not deliberate
but the same were kept in his table drawer which was
stealthily removed by some one and launched a complaint
against him. When the attestation of a Notary in a
document is recognized in law for various statutory
requirements, we see no justifiable ground for the
respondent No. 1 to state that as a matter of course he
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Civil Appeal No. 7133 of 2013
was keeping signed blank stamp papers in his custody that
too in his table drawer without proper safeguards. We,
therefore, do not find any substance in such a stand taken
on behalf of respondent No.1 which was rightly rejected by
the appellant – Bar Council of Andhra Pradesh.
8. The learned counsel, however, brought to our
notice that after the initial order of punishment
debarring the first respondent once and for all from
practising as an Advocate was passed by the appellant Bar
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Council of Andhra Pradesh on 5 December, 2009, the first
respondent filed his appeal by way of D.C. Appeal No.31 of
2010 before the Bar Council of India and the Bar Council
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of India issued an order of stay of the order dated 5
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December, 2009 only on 9 January 2011. Learned counsel,
therefore, pointed out that the respondent No. 1 had to
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necessarily suspend his practice as from 5 December,
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2009 till 9 January, 2011 and that by virtue of the order
of punishment passed by the appellant Bar Council of
Andhra Pradesh, the Certificate of Notary was also
cancelled and that he no longer continues to be a Notary
Public. Learned counsel, therefore, contended that the
period of one year and one month during which time the
first respondent was disabled from practising as an
Advocate itself was sufficient punishment undergone by
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Civil Appeal No. 7133 of 2013
him.
9. We heard Mr. P Vishwanatha Shetty, learned senior
counsel appearing for the Bar Council of Andhra Pradesh on
the said question and the learned senior counsel
vehemently submitted that the profession of an Advocate is
a noble profession and respondent No. 1 having proved
himself to be unworthy of the said status, the order dated
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5 December, 2009 passed by the appellant should be
restored and he should be debarred from practising as an
Advocate so that it would act as a deterrent for others
also not to indulge in any such malpractice. We find
force in the said submission of the learned senior
counsel. However, in this context we wish to be guided by
the decision of this Court reported in Narain Pandey v.
Pannalal Pandey (2013) 11 SCC 435 wherein this Court in
paragraphs 13 and 15 to 20 has highlighted that such
punishment should be commensurate with the degree of
professional misconduct and that imposition of any such
punishment should achieve twin objectives of deterrence
and correction.
10. When we apply the said principle we find that in
the case on hand there is no specific allegation of any
misconduct as against the respondent No. 1 such as any of
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Civil Appeal No. 7133 of 2013
his dealing with any of his clients with reference to any
particular litigation or any such similar activity
connected with his profession as an Advocate. The
allegation was that he was in the habit of issuing blank
attested stamp papers and thereby enabling the
unscrupulous elements to misuse such stamp papers for
creating false documents. Considering the nature of
misconduct alleged and found proved against respondent No.
1, namely that he was found in possession of blank
attested stamp papers with the signature affixed along
with the rubber stamp impression, we are convinced that
even while affirming the finding of misconduct found
proved against respondent No.1 as per the order of the
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appellant-Bar Council dated 5 December, 2009, the
punishment can be modified and restricted to a period of
one year and three months. It will be relevant to note
that his Notary Certificate has already been cancelled
and, therefore, there will be no scope for reviving his
functions as a Notary. We also make it clear that having
regard to his past misconduct in his Notary activities, he
shall never be recognised as a Notary in future. Since
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the appellant admittedly did not practise between 5
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December, 2009 and 9 January, 2011 by virtue of the
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order of the appellant dated 5 December, 2009, he shall
suffer further two more months suspension of his practice
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Civil Appeal No. 7133 of 2013
which shall be carried out in the months of October and
November, 2014.
11. With the above direction, this appeal stands
allowed, impugned order is set aside, the order of the
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appellant dated 5 December, 2009 stands restored with
the above modification as regards punishment imposed.
…...................................J
[FAKKIR MOHAMED IBRAHIM KALIFULLA]
…...................................J
[SHIVA KIRTI SINGH]
NEW DELHI
SEPTEMBER 15, 2014.
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