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CONSTITUENT OF

SYMBIOSIS INTERNATIONAL (DEEMED UNIVERSITY)

Reaccredited by NAAC with ‘A’ Grade

Symbiosis Campus, Opp. Pune International Airport,

Symbiosis Road, Viman Nagar, Pune 411 014.

PROFESSIONAL ETHICS AND PROFESSIONAL ACCOUNTING SYSTEM

CLINICAL COURSE- III- JOURNAL

II YEAR LL.B. (3 Years Course)

Academic Year: 2019-2020

SEMESTER – IV

Name of Student: Anmol Xess

Roll No: 016

Batch: 2018-2021 Programme: LL.B.

PRN No: 18010122016 Mobile No.: 8763491619

E-mail ID: [email protected]

 INDEX

Sr. No. Contents Page No.

1. Case Analysis 02 - 23

2. Accounts Problems (Journal entries and Ledger Accounts) 24 - 26

3. Written Submission 27 - 55
3.1. Critical Analysis of the Advocates Act, 1961.
3.2. Critical Analysis of the Contempt of Courts Act, 1971.

4. Accounts Problems (Journal entries and Theory Questions) 56 - 64

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 Case Analysis Index

Sr. No. Case Name/Account problems Page No. Marks

Obtained
1. In Re: Arundhati Roy [AIR 2002 SC 1357: (2002) 3 03
SCC 343]
2. A. S. Mohd. Rafi v. State of Tamil Nadu [AIR 2011 05
SC 308]
3. R.K. Anand v. Registrar, Delhi High Court [(2009) 8 07
SCC 106]
4. Mahipal Singh Rana v. State of UP [AIR 2016 SC 10
3302]
5. Re: Rameshwar Prasad Goyal [AIR 2014 SC 850] 12
6. Pandurang Dattaraya Khandekar v. Bar Council of 14
Maharashtra, Bombay [AIR 1984 SC 110]
7. Sanjay Kumar v. State of Bihar [(2014) 9 SCC 203] 16
8. Tushar D. Bhatt v. State of Gujarat [(2009) 11 SCC 18
678]
9. Ramon Services Pvt. Ltd. v. Subhash Kapoor [AIR 19
2001 SC 207]
10. In Re: Vinay Chandra Mishra [AIR 1995 SC 2348] 21

2
 Case Analysis

1. In Re: Arundhati Roy [AIR 2002 SC 1357: (2002) 3 SCC 343]

Facts: This case concerns a Suo-moto contempt petition (that is, a petition initiated by the Court
on its own motion) against the Respondent, Arundhati Roy, a Booker-prize winning author.
During the course of a writ petition by grassroots-movement Narmada Bachao Andolan, the
Court addressed issues of environmental damage and displacement of marginalized communities
due to the development of a reservoir dam on the river Narmada. Following a Supreme Court
order that allowed for the height of the dam to be increased, the Respondent wrote an article
criticizing this decision. Subsequently, protests were staged in front of the gates of the Supreme
Court by Narmada Bachao Andolan and the Respondent. This led to contempt proceedings based
on a complaint lodged with the police. During the proceedings, all Respondents denied the
allegations concerning specific slogans and banners and the proceedings were dropped. On the
basis of the above averments, Suo moto contempt proceedings were initiated against the
Respondent for imputing motives to the Court. In her reply affidavit to the contempt notice, the
author reiterated her stance and stressed her continuous dissent against the decision of the
Supreme Court. She further noted that she believed this to be a matter of her right to express her
opinions as a citizen as well as a writer.

Issues: 1. Whether it would be permissible to initiate contempt proceedings for scandalizing the
court where the contents of an affidavit cause no contempt to any Judge personally but the action
tried to cast an injury to the public by creating a wrong impression in the mind of the people
regarding integrity, ability and fairness of the judiciary?

2. Extent to which and circumstances in which fair criticism of Judge, court or its
functioning would be permissible under Article 19(1) (a) and (2)?

3. Whether freedom of press is guaranteed separately from and is the same as freedom of
expression under Article 19(1)?

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 4. How should the court deal with a case when a contemnor does not show any
repentance or remorse but persistently and consistently tried to justify the prima facie
contemptuous action and to frustrate the contempt proceedings?

Rules: The Contempt of Courts Act, 1971, Section 2(c) in the Contempt of Courts Act, 1971,
The Indian Penal Code, 1860, Section 14 in the Contempt of Courts Act, 1971, Article 19(1)(a)
in The Constitution of India 1949.

Analysis: The Court firstly stated that freedoms of speech and expression guaranteed by the
Constitution are subject to reasonable restrictions imposed by law, one of these being the
Contempt of Courts Act which, amongst other objectives, is directed at maintaining the dignity
and the integrity of the courts and the judiciary. It dismissed as irrelevant the Respondent’s
argument that the issue of whether truth could be pleaded as a defense to contempt proceedings
had to be determined. The Court went on to say that the affidavit as a whole was not being
considered for contempt but that part which made allegations questioning the integrity of the
Court. It stated that the purpose of contempt proceedings was not to preserve an individual
judge’s reputation but to maintain public confidence in the judicial system. Judicial criticism
must not be based on a gross misstatement and must not be directed at lowering the reputation of
the judiciary. The Court considered that the Respondent’s statement was not based on any
understanding of the law or the judicial system. It said that her statements alleging the judiciary’s
willingness to issue notice on “an absurd, despicable, entirely unsubstantiated petition” whilst
exhibiting a lack of willingness to entertain a case concerning “national security and corruption
in the highest places” and its intention to silence criticism along with her lack of remorse, made
it difficult “to shrug off or to hold the [unsubstantiated] accusations made as comments of [an]
outspoken ordinary man”. Accordingly, the Court found the Respondent guilty of criminal
contempt and sentenced her to “symbolic” imprisonment of one day and imposed a fine of Rs.
2000 with the provision that if she failed to pay the fine, she would be imprisoned for three
months.

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Conclusion: The Supreme Court of India found the Respondent guilty of contempt for alleging
in an affidavit that the Supreme Court was muzzling dissent and criticism. The Court sentenced
her to one day’s ‘symbolic’ imprisonment and a fine of Rs. 2000. The Court reasoned that
freedom of speech and expression was not absolute but subject to restrictions prescribed by law,
one such law being the Contempt of Courts Act which aims, among other things, to maintain
confidence in and uphold the integrity of the judiciary. Further, the Court found that the
Respondent’s statements were not made in good faith and in the public interest and therefore
could not be considered fair judicial criticism.

2. A. S. Mohd. Rafi v. State of Tamil Nadu [AIR 2011 SC 308]

Facts: On 14.12.2006 at about 9.20 p.m. the second petitioner (Mohd. Rafi) had entered the town
bus stand to board a bus to reach his home. He and Miss Sathyabama, the fifth respondent
(Police Constable) collided by mistake and this resulted in a wordy altercation. According to the
second petitioner, he was abused and beaten up by the fifth respondent and about four constables
who had gathered there, pushed him down and kicked several times and dragged him to the
nearby All Women Police Station (AWPS) and to Police Station few feet away and beaten up
again, even after he had revealed his identity as an Advocate. The police also refused to take up
his complaint. Later the second petitioner was taken to the Government Hospital only at 1.45
A.M. the following day and as he was not given proper treatment and there was also an attempt
to falsely issue a Drunkenness Certificate (DC) as though he was drunk. The second petitioner
went to Kovai Medical Centre where he had earlier undertaken treatment and had undergone
surgery for his brain tumour. According to the second petitioner, as a result of this surgery, he
has lost his vision in his right eye as well as hearing by his left ear. He had also suffered facial
deformity due to paralysis. A CT scan was also taken, from which it was found that the second
petitioner had received multiple bruises and there was a tear in his left ear because of the assault.
It is also alleged that in order to suit their convenience, the police also registered a complaint
against the second petitioner, as allegedly given by Sathyabama, as if he had outraged her
modesty. The second petitioner has alleged that because of the assault, he has been put to severe
hardship, especially the artificial instrument implanted in the brain during the earlier surgery was

5
also affected. He suffers severe pain in the spinal region due to the attack and is unable to sit
continuously for more than 15 minutes. Even after discharge from the hospital, he was required
to take treatment continuously and could not attend to his work for nearly three months. More
than Rs.1 lakh has been spent for his medical treatment so far because of this incident. In these
circumstances, the second petitioner has claimed compensation for a sum of Rs. 10 lakhs.

Issues: 1. Whether it was not unprofessional to refuse to render legal assistance, went
unanswered by the representatives of the Bar?

2. Whether there is any moral or legal justification to involve their association when the
issue has nothing to do with the discharge of his professional duties?

3. Whether their actions reflect the dignity of the profession?

Rules: Article 22(1) in The Constitution of India 1949, Article 142 in The Constitution of India
1949

Analysis: Professional ethics requires that a lawyer cannot refuse a brief, provided a client is
willing to pay his fee, and the lawyer is not otherwise engaged. Hence, the action of any Bar
Association in passing such a resolution that none of its members will appear for a particular
accused, whether on the ground that he is a policeman or on the ground that he is a suspected
terrorist, rapist, mass murderer, etc. is against all norms of the Constitution, the Statute and
professional ethics. It is against the great traditions of the Bar which has always stood up for
defending persons accused for a crime. Such a resolution is, in fact, a disgrace to the legal
community. We declare that all such resolutions of Bar Associations in India are null and void
and the right-minded lawyers should ignore and defy such resolutions if they want democracy
and rule of law to be upheld in this country. It is the duty of a lawyer to defend no matter what
the consequences, and a lawyer who refuses to do so is not following the message of the Gita.

6
Conclusion: In the earlier impugned order it was stated that it is certainly open to the members
of the Bar to help and aid an advocate in distress in any manner. In this very case the helping
hand extended by the members of the Bar to Mr. Mohammed Rafi cannot be objected to. The
officer bearers can certainly take care of the situation and do all the needful. If the expectations
are not fulfilled, Bar can certainly take up the matter with higher authorities or complain to the
Committee which has been formed by the High Court to go into clashes between police and
advocates, even in cases where the clash relates to the performance of professional duty by the
advocates. But no right-thinking citizen will endorse the involvement of the association vis-a-vis
an advocate as an ordinary citizen and the issue has nothing to do with performance of his
professional duties, and the Association indulging in road block and boycott of courts etc.
Redressal for any grievance, must be only in accordance with law and this is what any lawyer
will advise his client, same applies when lawyers are aggrieved too. The State Government is
directed to pay to the second petitioner a compensation of Rs. 50,000/- for violation of his human
rights by the police officers and the State is at liberty to recover this amount from the erring
officials. But there was an appeal to this impugned order in 2011 in which stated that an advocate
is bound to accept any brief in the Courts or Tribunals or before any other authorities in or before
which he proposes to practice at a fee consistent with his standing at the Bar and the nature of the
case. Special circumstances may justify his refusal to accept a particular brief. The appeal is
disposed of accordingly with no costs.

3. R.K. Anand v. Registrar, Delhi High Court [(2009) 8 SCC 106]

Facts: On January 10, 1999 at about half past four in the morning a speeding vehicle crashed
through a police check-post on one of the Delhi roads and drove away leaving behind six people
dead or dying. As the speeding car hit the group of persons standing on the road some were
thrown away but two or three persons landed on the car's bonnet and rolled down to the ground
under it. The car, however, did not stop. It moved on dragging along the persons who were
caught in its underside. It halted only after the driver lost control and going down a distance of
200-300 feet hit the road divider. At this point the occupants came down from the car to inspect
the scene. They looked at the front and the rear of the car and would not have failed to notice the

7
persons caught under the car who were still crying for help and who perhaps might have been
saved if they were taken out even at that stage. But the anxiety of the car's occupants to leave the
accident site without delay seemed to override all other considerations. They got back into the
car, reversed it and drove on. The car went on dragging the unfortunate victims trapped under it
to certain and ghastly death and left behind at the accident site dismembered limbs and dead
bodies of men. The police investigation brought to light that the accident was caused by a black
BMW car which was being driven by Sanjeev Nanda. He was returning from a late-night party,
under the influence of liquor, along with some friend(s)

Issues: 1. Whether the conviction of the two appellants for committing criminal contempt of
court is justified and sustainable?

2. Whether the procedure adopted by the High Court in the contempt proceedings was
fair and reasonable, causing no prejudice to the two appellants?

3. Whether it was open to the High Court to prohibit the appellants from appearing before
the High Court and the courts sub-ordinate to it for a specified period as one of the punishments
for criminal contempt of court?

4. Whether in the facts and circumstances of the case the punishments awarded to the
appellants can be said to be adequate and commensurate to their misdeeds?

Rules: The Contempt of Courts Act, 1971, Section 34 in The Advocates Act, 1961, Article 145
in The Constitution of India 1949, Article 215 in The Constitution of India 1949

Analysis: Suo motu cognizance taken by High Court on basis of telecast alone. The court
examined the audio and video recordings of sting operation. The findings of High Court were
sustained. It had rightly punished them by prohibiting them from appearing for a period of four
months and holding that they had forfeited their right to be designated as Senior Advocates and
imposing fine. A motivated application for recusal needs to be dealt with sternly and viewed as
interference in due course of justice leading to penal consequences. Directions given to High
8
Courts not having framed rules under Section 34 of Advocates Act to frame rules within four
months. The Rules should indicate need for specific notice to be issued when punishment of
debarring an Advocate from practice be imposed. Telecast of sting operation exposing collusion
between defence counsel and prosecutor did not amount to contempt of court but the programme
was intended to prevent an attempt to interfere with or obstruct the due course of a pending
matter. It was in larger public interest and served an important public cause. Grave concerns and
dismay expressed on decline of ethical and professional standards amongst lawyers. Bar Council
of India and the Bar Councils of different States cannot escape their responsibility. High Court’s
powers of superintendence over subordinate judiciary and power of control should also be
exercised to protect them from external interference that may sometimes appear overpowering to
them and to support them to discharge their duties fearlessly. Criminal justice system should be
insulated from external influences aimed to subvert trials.

Conclusion: NDTV, a news channel telecast a programme on 30 May 2007 in which the IU
Khan, Special Public Prosecutor and R.K. Anand, the Senior Defence Counsel, were seen
negotiating sell out of a prosecution witness for a very high price. According to NDTV, the
programme was based on a clandestine sting operation. Delhi High Court suo motu initiated a
proceeding for criminal contempt and issued notice to R.K. Anand and IU Khan under Section
2(c) of the Contempt of Courts Act, 1971. During the pendency of the matter in the High Court,
R.K. Anand filed a petition requesting Justice Manmohan Sarin, the Presiding Judge to recuse
himself from the proceeding. He stated in the petition that he had a feeling that he was not likely
to get justice at the hands of Manmohan Sarin. He made the prayer that the main matter be
transferred to be heard by some other bench of which Justice Sarin was not a member. The High
Court held that the evidence and circumstances fully established that both IU Khan and R.K.
Anand were guilty of the charges framed against them. It accordingly convicted them for
criminal contempt of court and sentenced them by prohibiting them from appearing in the Delhi
High Court and the Courts subordinate to it for a period of four months from the date of the
judgment. The court also recommended to the full court to divest them of the honour of being
designated as Senior Advocates and also sentenced them to a fine of Rs. 2000/- each.’

9
 4. Mahipal Singh Rana v. State of UP [AIR 2016 SC 3302]

Facts: The present appeal is preferred under Section 19 of the Contempt of Court’s Act, 1971
against the judgment and order of 2005, December by the Allahabad High Court, whereby the
appellant was found guilty of criminal contempt for intimidating and threatening a Civil Judge
(Senior Division), and sentenced him to simple imprisonment of two months with a fine of Rs.
2000/- and in default of the payment of the fine, the appellant to undergo further imprisonment
of two weeks. In January 2006, this appeal was admitted by this court and that part of the
impugned judgment, which imposed the sentence, was stayed and the appellant was directed not
to enter the court premises. On 6 th March, 2013 restriction on entry of the appellant into the court
premises as per order was withdrawn. Thereby, the appellant was permitted to enter the court
premises at (Etah), U.P. The said restriction was however resorted later.

Issues: 1. Whether on conviction for criminal contempt, the appellant can be allowed to
practice?

Rules: Contempt of Court’s Act, 1971-S.2, 12, 15(2), 19, 20; Advocate’s Act, 1961- S.24A,
24A(1), 30, 34(1), 35, 38, 49; Architect’s Act, 1972; Chartered Accountant’s Act; Company
Secretaries Act 1980, Pharmacy Practice Regulations, 2015, Indian Medical Council
Regulations, 2002.

Analysis: The criminal history of the contemnor, the acceptance of facts in which his actions
were found contumacious and he was discharged on submitting apologies on two previous
occasions and the allegations against him in which he was found to continue with intimidating
the judicial officers compelled to issue interim orders restraining his entry of the contemnor in
the judgeship at Etah. The Bar Council of U.P. is fully aware of his activities but has chosen not
to take any action in the matter. In fact, the Bar Council hardly takes cognizance of such matters
at all. The Court did not interfere with the statutory powers of the Bar Council of UP to take

10
appropriate proceeding against the contemnor with regard to his right to practice, and did not
take away right of practice vested in him by virtue of his registration with the Bar Council. He
was not barred from practice but was only restrained to appear in the judgeship at Etah in the
cases he was engaged as an advocate. The repeated contumacious conduct, without any respect
to the court committed by him repetitively by intimidating the judicial officers, called for
maintaining peace in the premises of judgeship at Etah.

The right to practice, no doubt, is the genus of which the right to appear and conduct cases in the
court may be specie. But the right to appear and conduct cases in the court is a matter on which
the court must and does have major supervisory and controlling power. Hence courts cannot be
and are not divested of control and supervision of conduct in court merely because it may
involve a right of an advocate. A rule that can stipulate that a person who has committed
contempt of court or has behaved unprofessionally and in an unbecoming manner will not have
the right to continue to appear and plead and conduct cases in courts. The Bar Council cannot
overrule such a regulation concerning the orderly conduct of court proceedings. On the contrary,
it will be their duty to see that such a rule is strictly abided by.

Conclusion: Conviction of the appellant is justified and is upheld. The sentence of imprisonment
awarded to the appellant is set aside in view of his advanced age but sentence of fine and default
are upheld. Further directions that the appellant shall not be permitted to appear in district courts
Etah unless he purges himself of contempt is also upheld; Under Section 24A of the Advocate’s
Act, the enrollment of the appellant will stand suspended for two years from the date of this
order. As a disciplinary measure for proof misconduct, the license of the appellant will be
suspended for further five years. An advocate who is found guilty of contempt of court may also,
as already noticed, be guilty of professional misconduct in a given case but it is for the Bar
Council of the State or Bar Council of India to punish that advocate by either debarring him for
practice or suspending his license as may be warranted in the facts and circumstances of each
case.

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 5. Re: Rameshwar Prasad Goyal [AIR 2014 SC 850]

Facts: A civil appeal was dismissed in default vide order dated 8.3.2013 as none appeared to
press the appeal. An application for restoration of the said appeal was filed by Shri Rameshwar
Prasad Goyal, Advocate-on-Record (hereinafter referred to as AOR). The said application was
listed in the Court on 8.7.2013. The Court was of the view that the facts contained in the
application were not correct and the counsel appearing for the applicant was not able to clarify
the same. The Court passed over the matter and asked the counsel appearing therein to call the
AOR who would be able to explain the factual controversy. When the matter was taken up in the
second round, the Court was informed that Shri Rameshwar Prasad Goyal, AOR refused to come
to the Court. It was also pointed out that the said AOR has filed extremely large number of cases
in this Court but never appears in the Court. In view of the refusal of the AOR to come to the
Court, this Court had no other option but to dismiss the application. However, the Court issued a
show cause notice to the said AOR as to why his name should not be removed from the register
of AOR, as his conduct was ‘unbecoming’ of an AOR.

Issues: 1. Whether absence of AOR from his own cases amounts to “unbecoming” of an AOR

Rules: Relevant rules for the purpose of adjudicating upon the issue involved herein are
contained in Order IV of the Supreme Court Rules, 1966 which read as under:

“4. Any advocate not being a senior advocate may, on his fulfilling the conditions laid down in
rule 5, be registered in the Court as an advocate on record is read with Rule 6, Rule 8A and Rule
10

Analysis: The judge held that although, conduct of said AOR tantamount to interfering with
administration of justice, the AOR for the time being given one year's time to reform his conduct

12
and if no improvement is found, proceedings may be initiated against him again. The matter was
declared closed for the time being. It’s seen that an AoR is the source of lawful recognition
through whom the litigant is represented and therefore, he cannot deviate from the norms
prescribed under the rules. Lawyers must remember that they are equal partners with judges in
the administration of justice. If lawyers do not perform their function properly, it would be
destructive of democracy and the rule of law. The conduct of the AoR has been reprehensible
and not worth pardoning but even then, the Court has been merciful in considering the facts and
circumstances involved, and has warned him not to behave in future in such manner and to
appear in court in all the cases wherever he has entered appearance. This is not the first time that
such a case has come to the Court. It’s seen in the Judgement of In Re: Sanjiv Datta, Dy. Secy.,
Ministry of Information & Broadcasting, (1995) 3 SCC 619, this Court held that:

The casualness and indifference with which some members practice the profession are certainly
not calculated to achieve that purpose or to enhance the prestige either of the profession or of the
institution they are serving.”

Conclusion: It’s hence known that “Law is no trade, briefs no merchandise”. An advocate being
an officer of the court has a duty to ensure smooth functioning of the Court. He has to revive the
person in distress and cannot exploit the helplessness of innocent litigants. A willful and callous
disregard for the interests to the client may in a proper case be characterized as conduct
unbefitting an advocate. If the AOR does not discharge his responsibility in a responsible manner
because he does not appear whenever the matter is listed or does not take any interest in
conducting the case, it would amount to not playing any role whatsoever. In such a fact-situation,
lending signatures for consideration would amount to misconduct of his duty towards court. In
case the AOR is only lending his signatures without taking any responsibility for conduct of a
case, the very purpose of having the institution of AOR stands defeated.

13
 6. Pandurang Dattaraya Khandekar v. Bar Council of Maharashtra, Bombay, [AIR
1984 SC 110]

Facts: The complainants alleged various acts of professional misconduct against the appellant
and Agavane. According to them, the appellant and agavane sometimes impersonated as other
advocates for whom the briefs were meant and at times, they directly approached the clients and
adopted questionable methods charging exorbitant fees. The State Bar Council referred to four
specific charges relating to them, two of impersonation as A.D. Ghospurkar and N.L. Thatte and
depriving these gentlemen of the briefs meant for them. The State Bar Council held that these
two charges have not been substantiated and the Disciplinary Committee of the Bar Council of
India has not gone into them. Both the Disciplinary Committee of the Bar Council of India and
the State Bar Council however found the appellant and Agavane to be guilty of giving improper
legal advice and held the charge of professional misconduct proved, but having regard to the fact
that they were junior members of the bar, the Disciplinary Committee of the Bar Council of India
by its order dated April 23, 1976 held both the appellant and A.N. Agavane guilty of professional
misconduct and directed that the appellant be suspended for a period of four months from June 1,
1976 and Agavane for a period of two months there from.

Issues: 1. Is there a difference between the giving of improper legal advice and the giving of
wrong legal advice?

2. Can Courts adjourn matters because lawyers are on strike?

3. Can Court interfere with the concurrent finding of fact?

Rules: Section 38 of the Advocates Act, 1961, Section 36B of the Advocates Act, 1961

The test of what constitutes "grossly improper conduct in the discharge of professional duties"

14
Analysis: The Supreme Court held that it is the duty of all Courts to go on with matters on their
boards even in the absence of lawyers. In other words, Court must not be privy to strikes or calls
for boycotts. It was held that if a lawyer, holding a vakalatnama of a client, abstains from
attending Court due to a strike call, he shall be personally liable to pay costs which shall be in
addition to damages which he might have to pay his client for loss suffered by him. There is a
world of difference between the giving of improper legal advice and the giving of wrong legal
advice. Mere negligence unaccompanied by any moral delinquency on the part of a legal
practitioner in the exercise of his profession does not amount to professional misconduct. In re A
Vakil, ILR [1925] 49 Mad. 523. Coutts Trotter, C.J. followed the decision in re G. Mayor Cooke
[1889] 33 Sol. Jour. 397 and said that;

"Negligence by itself is not professional misconduct; into that offence there must enter the
element of moral delinquency"

The decision was followed by the Calcutta High Court in re An Advocate ILR [1935] 62 Cal.
158

The Court further stated that under Section 38 of the Advocate's Act 1961, this Court would not,
as a general rule, interfere with the concurrent finding of fact. by the Disciplinary Committee of
the Bar Council of India and the State Bar Council unless the finding is based on no evidence or
it proceeds on mere conjectures and surmises. Finding in such disciplinary proceedings must be
Sustained by a higher degree of proof than that required in civil suits, yet falling short of the
proof required to sustain a conviction in a criminal prosecution. There should be convincing
preponderance of evidence.

Conclusion: It is the solemn duty of the Bar Council of India and the State Bar Councils to
frame proper schemes for the training of the junior members of the bar, for entrusting of work to
them, and for their proper guidance so that eventually we have new generation of efficiently
trained lawyers. It is regrettable that even after more than two decades that the Advocates
Act was brought on the Statute Book, neither the Bar Council of India nor the State Bar Councils

15
have taken any positive steps towards ameliorating the conditions of the members of the bar,
particularly of the junior members. It is pertinent to note that there is a thin line between
misconduct, negligence which can only be brought to conclusion only via precedents.

7. Sanjay Kumar v. State of Bihar and Anr. [(2014) 9 SCC 203]

Facts: The Petitioner claimed to have been appointed by the private Respondent No. 2 in a fake
dental college as a Senior Lecturer for a period of one year and issued 12 postdated cheques for
payment of his salary out of which 9 cheques had bounced. The complainant-Petitioner sent legal
notice to the Respondent No. 2 but without giving them sufficient time to file a reply, filed a
complaint before the Magistrate The private Respondent challenged the said order by filing the
petition before the High Court which has been allowed. Aggrieved, the Petitioner approached the
Court making the averment in the petition that accused persons had been running a fake
institution and offered the appointment to the Petitioner on certain terms and in spite of working
therein, he was not paid the salary. Hence, this petition.

Issues: 1. Whether asking the Court to ignore pleadings is allowed?

2. Whether it is justified for an Advocate on Record to remain absent without intimating

the court about it?

Rules: Section 165 of the Indian Evidence Act, 1872, Sections 406, 420 Indian Penal Code,
Section 138 of NI Act, Section 482 of the Code of Criminal Procedure, 1973.

Analysis: In the instant case the counsel appearing in the Court for the Petitioner designated
himself merely as a proxy counsel without revealing his name. The Advocate-on-record had no
courtesy to send a slip mentioning the name of the counsel who has to appear in the Court. In Re:

16
Rameshwar Prasad Goyal (2014) 1 SCC 572, this Court had categorically held that in case the
AOR does not appear in the Court, his conduct may tantamount to criminal contempt of the
Court.

The Court had issued a notice earlier to the Petitioner, to show cause that in case it was a fake
institution, what was the reason or rationale for the Petitioner to join and continue to serve there
for one year. In reply to the said show cause notice, the Petitioner submitted that such pleadings
be ignored and may not be considered for the purpose of disposal of the instant petition. It is to
be noted that the pleadings should be trite to the knowledge of parties and in a case, person takes
such misleading pleading, he can be refused not only any kind of indulgence by the court but can
also be tried for perjury. Whether such a pleading is relevant or not is a matter to be decided by
the Court and under Section 165 of the Indian Evidence Act, 1872, Court has a right to ask the
party even relevant or irrelevant questions and the parties or their counsel cannot raise any
objection to any such question.

Conclusion: The petition was rightfully dismissed. In such a chaotic situation, any lawyer under
the label of "proxy counsel", a phrase not traceable under the Advocates Act, 1961 or under the
Supreme Court Rules, 1966 etc., cannot be allowed to abuse and misuse the process of the Court
under a false impression that he has a right to waste public time without any authority to appear
in the Court, either from the litigant or from the AOR, as in the instant case. The AOR, with
impunity was disdainful towards the order of this Court directing him to appear in the Court. He
had also not filed any appearance for the counsel who had appeared, nor the said counsel
disclosed his name. The Court takes serious note of the conduct of the AOR, Shri Manu Shanker
Mishra and warns him to behave in an appropriate manner befitting the conduct of an advocate
and an AOR otherwise this Court will not hesitate to take action against him. His conduct will be
under close watch of this Court.

17
 8. Tushar D. Bhatt v. State of Gujarat [(2009) 11 SCC 678]

Facts: The case is one of alleged wrongful dismissal of a government employee, Tushar D. Bhatt
for flouting orders of transfer and non-compliance with directives issued by a superior officer
along with disciplinary issues. Pursuant to the same the petitioner moved the Gujarat High Court.

Issues: 1. Is the punishment of dismissal from Service disproportionate to the guilt found to be
proved?

2. Is the scope of judicial review against actions taken by the Disciplinary Authority,
limited?

3. Is the transfer of the appellant mala fide?

Rules: Rule 6 Gujarat Civil Services (Discipline and Appeal) Rules, 1971.

Precedents used: Gujarat Electricity Board and Anr v. Atmaram Sungomal Poshani
(MANU/SC/0200/1989) – “… If he fails to proceed on transfer in compliance to the transfer
order, he would expose himself to disciplinary action under the relevant Rules as has happened
in the instant case. The respondent lost his service as he refused to comply with the order of his
transfer from one place to the other”

Mithilesh Singh v. Union of India and Ors. (MANU/SC/0160/2003) – “Absence from duty
without proper intimation is indicated to be a grave offence warranting removal from service.”

Analysis: According to the Court, absenteeism and use of intemperate language which is a
matter of gross indiscipline is not a minor offence and thereafter being lenient about it would
amount to injustice in the interest of the institution. The Appellant did not challenge the guilt
proved by the Inquiry Officer in the Report submitted, and thus, a proven guilt cannot be
surpassed as a minor offence. The Court held that if the Appellant can escape with minor

18
penalty, then it will certainly form a bad precedent and in a given case, some other unscrupulous
Government employee would resort to arm twisting of his superior for extorting a decision in his
favor. Thus, as per Rule 6 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971, the
offence committed in the case would warrant to the punishment of a dismissal from service as
decided by the Disciplinary Authority. Thereafter, a decision by the Disciplinary Authority is
limited. Only when an order of punishment is found to be so perverse that no reasonable person
can pass such order, or the punishment imposed is shockingly disproportionate to the guilt
established or there is violation of any fundamental rights or the principles of natural justice, can
there be unlimited judicial review. But, in the present case no such facts have been warranted and
thus the scope of judicial review by the Court, is limited. Also, according to the Court, “…
transfer is an incidence of service and transfers are made according to administrative
exigencies.” The Court observed in the present case that the Transfer of the Appellant has only
been made twice in his 18 years tenure and this cannot be termed as mala fide. Thus, the
allegations made by the appellant was devoid of any merit and was dismissed.

Conclusion: The case was presented twice in front of the same High Court, and both the
judgements were against the appellant and so was the judgement of the Hon’ble Supreme Court.
The case can be cited as a strong precedent for future employees that flout orders of transfers,
remain absent from duty for a considerably long time without notice and indulge in a practice
that is highly deplorable.

9. Ramon Services Pvt. Ltd. Vs. Subhash Kapoor [AIR 2001 SC 207]

Facts: The appellant-company was in occupation of a building as tenant at Barakhamba Road,

New Delhi. A suit was filed against the appellant for eviction from the building and other
consequential reliefs which was resisted by the appellant by raising various contentions. Issues in
the suit were framed by the court and the case was posted for trial. None of the advocates,
belonging to the firm of lawyers which was engaged by the appellant appeared in the court on
the day due to the strike. As nobody for the appellant was present, the court set the defendant ex
19
parte and evidence of the plaintiff was recorded. Once the appellant came to know regarding the
same, he applied under Order IX, Rule 7 of CPC however the application was dismissed and the
suit was decreed. The High Court then decreed on the same grounds of the trial court. This Civil
Appeal is filed in the Supreme Court against the order of the High Court.

Issue: Whether suit decreed ex parte by the trial court in consequence of the non-appearance of
the counsel on the fixed day for hearing, on the premise of the strike is valid reason for non-
appearance.

Rule: Civil Procedure Code, 1908 - Order IX Rule 7 and 16 of ex parte decree passed.

Analysis: The case deals with the rights of the litigants with respect to attorney client
relationship with respect to certain event such as a strike called by the Advocates Association.
The Supreme court placed reliance upon the case of Mahabir Prasad Singh v. Jacks Aviation
(1998) RLR SC 644 that, “It is a settled law that strike or boycott by the advocates is no ground
for adjournment.” It’s the solemn duty of every lawyer to attend court especially when there is
no bonafide, reasonable ground given for such a non – appearance in court. An advocate has no
right to stall the court proceedings on the ground that advocates have decided to strike or to
boycott the courts. Boycott of the court by the advocate is unquestionably illegal, the lawyer has
an option to boldly ignore any such boycott call. It was rightly held by the court that in the event
of such non-appearance, it’s the advocate that would be answerable for the consequence suffered
by the party, if the non-appearance was solely on the ground of a strike call.

Conclusion: Its hence seen that the learned single judge rightly stated that persons belonging to
the legal profession are concededly the elite of the society. Strikes by the professionals including
the advocates cannot be equated with strikes undertaken by the industrial workers in accordance
with the statutory provisions. Abstaining from the courts by the advocates, by and large, does not

20
only affect the persons belonging to the legal profession but also hampers the process of
obtaining justice especially by the helpless litigants. Legal profession is essentially a service-
oriented profession. The relationship between the lawyer and his client is one of trust and
confidence. With the strike by the lawyers, the process of court intended to secure justice is
obstructed which is unwarranted under the provisions of the Advocates Act and hence the litigant
who suffers entirely has the remedy to sue the advocates for damages.

10. In Re: Vinay Chandra Mishra [AIR 1995 SC 2348]

Facts: Allegations of contempt committed in the face of a High Court were made against a
Senior Counsel. He was asked by the Bench regarding the provision under which the impugned
order had been passed. He started shouting at the bench. He said would get the Judge transferred
or impeached and threatened by saying that he had “turned up many judges”. He created a scene
in the Court. He lost his temper and, according to the Judge, “except to abuse him of mother and
sister” the contemnor had insulted him like anything. The contemnor was also President of the
Bar and Chairman of the Bar Council of India. The matter was referred by the Acting Chief
Justice to the Supreme Court. The Supreme Court took suo motu cognizance and issued a show
cause notice to the contemnor. In his counter and additional counter, a different version of the
incident was put up by the contemnor. He alleged that in fact it was the judge who had
committed contempt of his own court. He filed application for initiating proceedings against the
Judge.

Issues: 1. Whether Supreme Court can take cognizance of contempt of a High Court and initiate
suo motu proceedings against a contemnor?

2. Whether a contemnor has a right to examine the Judge or Judges before whom
contempt was committed?
3. Whether it is necessary to summon the Judge for examination to verify the allegations
against the contemnor when the version of the contemnor is different?

21
 4. Whether a junior member of the Bench is barred in any way by any convention or
otherwise, from putting questions to the Bar?

Rule: Section 35 and Section 38 of the Advocates Act, 1961, Contempt of Courts Act, 1971,
Article 129 and Article 142 of the Constitution of India.

Analysis: The Court in In Re: Vinay Mishra misconstrued Article 129 read with 142 and robbed
the Bar to of all powers to try and punish those for professional misconduct. It even assumed
jurisdiction when Section 38 of the Advocates Act, 1961 explicitly provides only appellate
jurisdiction to the Apex Court. The Court punished Shri Mishra by suspending him thus the
petition arose in the 1998 case, Supreme Court Bar Association v. Union of India. The Court
overruled the Mishra case and recognized the Bar Council's power to try and punish all those
guilty of professional misconduct. The Supreme Court is vested with the right to punish those
guilty of contempt of Court under Article 129 read with Article 142 of the Constitution of India.
The power to punish contemnors is also vested with the High Court’s under Article 215 of the
Constitution and the Contempt of Courts Act, 1971 also governs the punishments given by the
High Court. This act in no way controls the jurisdiction of the Apex Court. Contempt
proceedings are not brought about to restore the pride of the Judge in who's Court or against
whose order there was contempt.

Conclusion: It is well settled that contempt proceedings are brought about to protect the majesty
of law and uphold the judiciary's position, the central pillar in Indian democracy, among the
public and give them reason to keep their faith in the administration of justice. In the Mishra case
the Court instead of protecting the image of the Judiciary, the upholder of the law, knowingly or
un-knowingly, tried to restore the pride of the Judge by suspending the advocate Mishra who
might have been influenced by his high position in the Bar, and felt that appropriate punishment
might not be meted out to him. Association case the court took a very objective view and taking
the help of law and construing it in the right way came to the conclusion that the power to punish
for any professional misconduct rests with the Bar, whereas to punish for contempt only it has

22
jurisdiction for itself and subordinate courts. No statute can take contempt jurisdiction away from
the Supreme as well as the High Court.

23
 Accounts Problems (Journal Entries and Ledger Accounts)

QUESTION 1

IN THE BOOK OF KC ENTERPRISES

JOURNAL

DATE PARTICULARS L.F DEBIT CREDIT

No.
Machine a/c……………………Dr 50,000
01.04.201 ICICI Bank a/c ………………...Dr 1,00,000
9 To Owner’s a/c 1,50,000
[Being cash and machinery introduced by the
Owner into the business]
02.04.201 ICICI Bank a/c………………….Dr 50,000
9 To ICICI Bank a/c 50,000
[Being cash deposited into bank]
Purchases a/c…………………. Dr 20,000
03.04.201 To Mr. Supplier a/c 20,000
9 [Being goods purchased from Mr. Supplier]
04.04.201 Salary a/c…………………….. Dr 12,000
9 To Aman a/c 5,000
To Naman a/c 7,000
[Being Salary accrued to Aman and Naman]
Aman a/c………… Dr 15,000
05.04.201 Naman a/c…………….. Dr 5,000 20,000
9 To ICICI Bank a/c
[Being Salary paid to Aman and Naman]
06.04.201 Rent a/c……………………………...Dr 10,000
9 To SBI Credit Card a/c 10,000
[Being Rent paid from SBI credit card]
ICICI Bank a/c …………………………Dr 1,00,000
07.04.201 To HDFC Finance a/c 1,00,000
9 [Being money borrowed from HDFC finance into
ICICI Bank]
08.04.201 Purchases a/c………………………...Dr 50,000
9 To Supplier Zee a/c 50,000
[Being goods Purchased from Supplier Zee]
Customer 1 a/c …………………….. Dr 67,500
09.04.201 To Sales a/c 67,500
9 [Being goods sold to Customer 1]
10,04,201 Cash a/c…………………. Dr 60,000
9 Discount Allowed a/c………….Dr 7,500
To Customer 1 a/c 67,500
[Being customer 1 paid cash in full settlement]

24
QUESTION 2

IN THE BOOKS OF KC & CO. (ADVOCATES), PUNE:

Debit Aman Account Credit

Date Particulars Amount Date Particulars Amount
01.04.19 To Professional Fees 1,50,000
a/c

TOTAL 1,50,000 TOTAL 1,50,000

Debit Professional Fees Account Credit

Date Particulars Amount Date Particulars Amount
01.04.19 By Aman a/c 1,50,000
06.04.19 By Mr. Kamal a/c 10,000

TOTAL 1,60,000 TOTAL 1,60,000

Debit Mr. A Account Credit

Date Particulars Amount Date Particulars Amount
02.04.1 To Salaries a/c 5,000
9

TOTAL 5,000 TOTAL 5,000

Debit Mr. B Account Credit

Date Particulars Amount Date Particulars Amount
02.04.1 To Salaries a/c 7,000
9

TOTAL 7,000 TOTAL 7,000

Debit Salaries Account Credit

Date Particulars Amount Date Particulars Amount
02.04.19 By Mr. A 5,000
02.04.19 By Mr. B 7,000

25
 TOTAL 12,000 TOTAL 12,000

Debit Rent Account Credit

Date Particulars Amount Date Particulars Amount
03.04.1 To Mr. Landlord a/c 10,000
9

TOTAL 10,000 TOTAL 10,000

Debit Mr. Landlord Account Credit

Date Particulars Amount Date Particulars Amount
03.04.19 By Rent a/c 10,000

TOTAL 10,000 TOTAL 10,000

Debit ICICI Bank Account Credit

Date Particulars Amount Date Particulars Amount
04.04.1 To Interest Received 1,500
9 a/c
05.04.1 To Cash a/c 10,000
9

TOTAL 11,500 TOTAL 11,500

Debit Interest Received Account Credit

Date Particulars Amount Date Particulars Amount
04.04.19 By ICICI Bank a/c 1,500

TOTAL 1,500 TOTAL 1,500

Debit Cash Account Credit

Date Particulars Amount Date Particulars Amount
01.04.1 To Balance b/d 15,000
9
05.04.19 By ICICI Bank a/c 10,000

TOTAL 15,000 TOTAL 15,000

Debit Mr. Kamal Account Credit

Date Particulars Amount Date Particulars Amount
06.04.1 To Professional Fees 10,000
9 a/c

26
 TOTAL 10,000 TOTAL 10,000

Written Submission

1. Critical Analysis of the Advocates Act, 1961.

Introduction

Legal practice laws in India are governed by the Advocates Act 1961; an act passed by the
Indian Parliament which provides for laws relating to legal practitioners in India and to provide
for the constitution of the Bar Council of India (BCI) and state bar councils. Under the powers
granted in the Act, the BCI has made rules known as BCI rules which lay down rules for
practice, legal education and professional ethics. Advocates Act 1961 replaced the earlier Indian
Bar Councils Act, 1926.

The Bar Council of India is a statutory body that regulates and represents the Indian bar. It was
created by Parliament under the Advocates Act, 1961. It prescribes standards of professional
conduct, etiquette 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 graduation.

Bar Council of India has been empowered under section 49 of the Advocates Act to make rules.
In exercise of those powers Bar Council of India made rules which were published in the official
gazette on 6 September 1975.

 Parts I, II and III deal with establishment of Bar Council of India, state bar councils,
lawyers and their roles.
 Part IV deals with rules of legal education being rules on standards of legal education and
recognition of degrees in law for the purpose of enrolment as advocate and inspection of
Universities for recognizing its degree in law.
 Parts V, VI, VII, VIII and IX deal with other aspects including the professional ethics.

27
The Advocate Acts defines the legal provisions relating to the legal practitioners and also
provides the provisions for the constitution of the Bar Councils and an All-India Bar. So
basically, the said Act provides the procedure for registration in state-level bar councils and what
kind of qualifications a person may require for registration to practice in a field of law. The
supreme body is the Bar Council of India, which is the nodal agency that provides strict rules and
regulations for registration. It also provides what kind of standard should be maintained by a law
institution.

History and the Law Commission Reports

The Bar was not satisfied with passing of the Bar Council's Act, 1926. The Act had not covered
the pleaders, mukhtars and Revenue agents practising in the mofussil courts and revenue offices
and consequently did not set up a unified Indian Bar. Further the powers conferred on the Bar
Councils constituted under the Act were limited and the Bar Councils were neither autonomous
nor had any substantial authority. Therefore, several non- official members' bills had been
introduced to amend the law relating to the legal profession and had lapsed and nothing concrete
emerged. With the coming into force of the Constitution in 1950 and the establishment of a
Supreme Court for India the need for an all-India Bar was stressed by the legal fraternity. In this
situation, the Union government set up a committee known as the All India Bar Committee under
the Chairmanship of justice S.R. Das of the Supreme Court. In 1953 the committee
recommended, inter alia, an All India Bar Council and the maintenance of a common roll of
advocates by the All India Bar Council. The committee had considered at length the questions of
the constitution and powers of the state Bar Councils and the All India Bar Council and made
detailed recommendations. It proceeded on the principle that the Bar should be autonomous in
matters relating to the profession. But the government did not take any steps in pursuance of the
committee's recommendations. Subsequently in 1955 the Law Commission, presided over by
Mr. M.C. Setalvad, then Attorney-General of India, in its fourteenth report on the Reform of
Judicial Administration endorsed the recommendations of the All India Bar Committee, as
regards the creation of a unified all India Bar as well as the establishment, composition and

28
functions of the state and All India Bar Councils. The Law Commission further recommended,
inter alia , that the requirement of a certain number of years' practice in the High Court for
enrolment as a Supreme Court advocate should be dispensed with, the advocates on the common
roll should have the right to practise in all the courts in India, the dual system should continue on
the original side of the Calcutta and Bombay High Courts and the Bar should be divided into
senior advocates and advocates.1

To implement the recommendations of the All India Bar Committee (fully endorsed by
fourteenth Report of the Law Commission in 1955), the Advocates Act, 1961 was enacted. The
Act extends to the whole of India, except the State of Jammu and Kashmir. The Act provides for
amending and consolidating the law relating to legal practitioners and to provide for the
constitution of State Bar Councils and an All India Bar Council (for the first time in India). The
Act took away the powers till then vested in the Courts, in the matter of admission of advocates
and the maintenance of the rolls, and their disciplinary conduct (subject to an ultimate appeal to
the Supreme Court). These powers now vest in the Bar Councils. Every Bar Council constituted
under the Act is a body corporate having a common seal, and may, by the name of which it is
known sue arid be sued.

 The main features of the Act

(1) Establishment of an All India Bar Council and a number of State Bar Councils – a federal
structure for legal profession. An advocate is initially enrolled with a State Bar Council and a
common roll of all the advocates in the country is maintained by All India Bar Council. An
advocate on common roll has a right to practice in any court of the country including the
Supreme Court.

(2) Integration of the bar into a single class of legal practitioners known as advocates.

(3) A uniform qualification for the admission as advocates viz, degree in law.

(4) Division of advocates into senior advocates and other advocates based on merit.

1
Law Commission of India: Report on the Reform of Judicial Administration,
556-586 (1958

29
(5) No advocate can get himself enrolled with more than one State Bar Council, though he can
get himself transferred from one State Bar Council to another.

 Section 4- Bar Council of India

Composition – The Bar Council of India consists of

(a) the Attorney-General of India ex-officio

(b) the Solicitor-General, ex-officio,

(c) one member elected by each State Bar Council from amongst its members.

There are elected Chairman and a Vice-Chairman of the Council, and, a Secretary and an
Accountant the Bar Council of India has been authorised to constitute one or more of the
following committees,

(1) Legal Aid Committee

(2) Disciplinary Committee

(3) Executive Committee

(4) Enrolment Committee

(5) Legal Education Committee,

Every Disciplinary Committee is to consist of three members, two persons to be elected from
amongst its members and one other to be co-opted from such members as have at least ten years’
practice. The senior-most advocate from amongst its members is to be chairman of the
committee. The Legal Education Committee consists of ten members of whom five persons
elected by the Council from amongst its members and the other five are those who are not
members of the Council.

30
The main source of income of the Bar Council of India is the contribution of forty per cent out of
the fee of Rupees two hundred fifty paid by each applicant for enrolment to the State Bar
Council.

 Section 7-Functions

Main functions of the Bar Council of India include,

(1) To prepare and maintain a common roll/roster of all the advocates in the country.

(2) To lay down standards of professional conduct and etiquette for advocates and rules
regarding enrolment, suspension, etc., of advocates.

(3) To safeguard the rights, privileges and interests of advocates.

(4) To exercise general supervision and control over State Bar Councils, to deal with and dispose
of any matter arising under Act, which may be referred to it by a State Bar Council.

(5) To promote and support law reforms.

(6) To promote legal education and to lay down standards of such education in consultation with
Universities and State Bar Councils.

(7) To recognize Universities whose degree will qualify a person to be enrolled as an advocate
and to recognize foreign law degrees,

(8) To conduct seminars and talks on legal matters and to publish legal journals.

(9) To organize legal aid to the poor.

(10) To manage and invest the funds of the Bar Council.

(11) To provide for the election of its members.

 Section 15- Powers

31
Apart from the powers already enumerated, the Bar Council of India (BCI) has been specifically
conferred special powers,

(1) Power to remove name from the rolls– The BCI is empowered, either on a reference made to
it or otherwise, if it is satisfied that any person has got his name entered in the roll of the
Advocates by misrepresentation, to remove such person from the roll after giving him an
opportunity of being heard. Besides, the name of advocate may be removed from the roll as
punishment for misconduct in disciplinary proceedings.

(2) Revision- Apart from the power vested in it to remove the name of an advocate in certain
cases, and the power vested in the disciplinary committee to hear and dispose of the disciplinary
matters whether by way of original hearing or on appeal, the BCI has the power at any time to
call for the record of any proceeding under the Act, which has been disposed of by a State Bar
Council or a Committee thereof, and from which no appeal lies, for satisfying itself as to the
legality or propriety of such a disposal and may pass such orders thereon as it deemed fit.

(3) Directives- Section 48B empowers the BCI for the proper and efficient discharge of the
functions of a State Bar Council or any Committee thereof, to give such directions to the State
Bar Council or its Committee as may appear it to be necessary, and the latter has to comply with
the directions. Where a State Bar Council is unable to perform its functions for any reason
whatsoever, the BCI may give such directions to the ex-officio member thereof as may appear to
it to be necessary, and such directions shall have effect, notwithstanding anything contained in
the rules made by the State Bar Council.

(4) Rule-making power- Section 15 enumerates the powers of the State Bar Councils/BCI to
make rules relating to the Bar Councils. Section 28 gives power to the State Bar Councils to
make rules on some matters connected with the preparation of rolls, training and examination for
admission as advocates, form of application for enrolment, and conditions for enrolment. Any
rule made by State Bar Council shall have effect only if it has been approved by the BCI. Section
49 confers on the BCI a general power to make rules for discharging its functions under the Act.
Rules include rules the statement of the grounds in support of the refusal to the Bar Council of
India, and has to dispose of the application finally in conformity with such opinion.

32
 Section 24- Qualifications for Admission as an Advocate

The person has to be a citizen of India and has completed the age of 21 years, and has obtained a
degree in law (LL.B.) from any university in India or of any university outside India considered
equivalent to Indian degree, A person eligible to pursue the course in law (LL.B.- Three Year
Course) should be a graduate of a university or have other equivalent academic qualification.

The requirement of practical training is now abolished. A law graduate is required to pay an
enrolment fee of Rupees two hundred fifty 250 to the State Bar Council (in case of SC and STs,
fee is Rupees one hundred twenty-five).

With regard to a barrister also, the Bar Council of India has specified the same requirement as to
a degree in law. It may be noted that the Advocates Act, 1961 has done away with the distinction
between advocates and vakils. Now all members enrolled shall be called advocates. But among
advocates, there shall be Senior Advocates also. Those who were senior advocates as on
1.12.1961 shall be deemed to be senior advocates. Besides, power has been conferred under
Section 16 of the Act to the Supreme Court and the High Courts to designate any advocate as
senior advocate if in its opinion by virtue of his ability, experience (10 years’ practice) and
standing at the Bar, he is deserving of such distinction. Senior advocates are governed by the
rules of the Supreme Court applicable to them, and are also subject to the restrictions laid down
by the Bar Council of India in the interest of the legal profession.

 Section 24A- Disqualification for Enrolment

No person shall be admitted as an advocate .f he is convicted of an offence involving moral

turpitude, if he is convicted of an offence under the provisions of Unsociability (Offences) Act,
1955, Section 28 of the Advocates Act generally prohibit the enrolment of a person who, though
he may be otherwise qualified, is in full or part-time service or employment (except when he is a
law officer) or is engaged in any trade, business or occupation (except when he is a sleeping
partner). An advocate may edit legal books at a salary, coach pupils for legal examinations and
subject to the rules against full-time employment, engage in journalism, lecturing and teaching
subjects both legal and non-legal,

33
 Section 30- Right to Practice

Every advocate, whose name is entered in the State roll, shall be entitled as of right to practice
throughout the territories to which the Act extends-

(1) in all courts including the Supreme Court

(2) before any tribunal or person legally authorised to take evidence (Section 29). Under Section
33, advocates alone are entitled to practise in any court. However, this right to practice is subject
to rules framed by the High Court under Section 34.

Persons illegally practising in Courts or before other authorities when they are not entitled to
practise under the provisions of the Act are liable for punishment with imprisonment for a term
which may extend to six months.2

The expression ‘right to practice’, in the context of the legal profession basically refers to the
exclusive right of persons who are going to enrol themselves as an advocate to start the practice
of law before any courts and tribunals according to their choices. In the very landmark ruling,
Re. Lily Isabel Thomas (1964 CriLJ 724) the Supreme Court, the apex court of the country,
equated the “right to practice” with an “entitlement to practice.” And These rights enjoy
protection at two different levels which are as follows-

 General protection – Firstly, Article 19(1)(g) of the Indian Constitution protects the right
of an individual to choose professions according to their choice.
 Specific Protection – Secondly, Section 30 of the Advocates Act, 1961 confers on
candidates whose name is enrolled in the registers of Bar Council of the States, the right
to practice before any of the court or tribunal in India according to their state preferences
or choice including the Apex Court, i.e., Supreme Court.

2
https://www.legalbites.in/advocates-act-1961/

34
 SUPREME COURT JUDGMENTS
 O.N. Mohindroo v. BCI [AIR 1968 SC 888]
Supreme Court in India, in O.N. Mohindroo v. BCI [AIR 1968 SC 888] and Bar Council of
UP [AIR 1973 SC 231] the subject covered by the Advocates Act, 1961 is preferable to
Entries 77 and 78 in List I of Schedule VII of the Constitution of India. These two entries
deal, among others, with the subject: persons entitled to practice before the Supreme Court
(Entry 77) and persons entitled to practice before the High Court (Entry 78).3

 T.N. Raghupathy v. Karnataka High Court,

The Court while rejecting the petitions explained that as per the guidelines of the Apex
Court issued under Article 142 of the Constitution of India, the Permanent Committee is
required to make overall assessment on the basis of the points-based formula and such
overall assessment was to be placed before the Full Court and there was no dispute that the
interviews/interactions were made with an individual candidates from 22nd or 23rd October,
2018 to 3-10-2018. Therefore, there is nothing wrong if all of them were ready with their
individual overall assessment on the basis of the points-based format by 11-11-2018. Also,
they stated that three members of the Permanent Committee were highest constitutional
functionaries who had long experience of doing judicial and administrative work. The 4th
member being the Advocate General had also a very rich experience and standing in the
profession of law and even the 5th member was a distinguished Senior Advocate having
long experience at the Bar, thus there stands no reason to interfere with their decision
making process following which no directions can be issued to Union of India to frame the
Rules for designation of Senior Advocates. 4

 Noratanmal Chaurasia vs. M.R. Murli (2004) 5 SCC 689– The Supreme court has held
that misconduct has not been defined in the Advocates Act, 1966 but misconduct envisages
3
https://www.indianbarassociation.org/wp-content/uploads/2016/12/amendmemnts-in-the-Advocates-Act-7-12-
2016.pdf
4
https://www.scconline.com/blog/post/tag/advocates-act/

35
 breach of discipline, although it would not be possible to lay down exhaustively as to what
would constitute misconduct and indiscipline which however, is wide enough to include
wrongful omission or commission, whether done or omitted to be done intentionally or
unintentionally.

 Narain Pandey vs. Pannalal Pandey (2013) 11 SCC 435 – An advocate who is found
guilty of having filed vakalatnamas without authority and then filing false and fictitious
compromises on behalf of the client without any authority deserves punishment
proportionate to the degree of misconduct. Such punishment must meet two objectives-
deterrence and correction. The Court referred to the Preamble of the BCI Rules- Chapter II
while adjudging the misconduct.

 Shambhuram Yadav vs. Hanumandas Khatri AIR 2001 SC 2509- The lawyer suggested
that his client give bribe to the judge to get the suit decided in his favour. The Supreme
Court held the lawyer guilty of professional misconduct. (Violation of Rule 3 and 4 of BCI
Rules- – Chapter II)

 Bar Council of Andhra Pradesh vs. Kurapati Satyanarayana AIR 2003 SC 178–
Lawyer misappropriated his client’s money. BCI acquitted him on the ground that there was
no intention. Supreme Court held this decision of BCI to be “unfounded and perverse” and
lacking the serious thought which was required to be given to the disciplinary committee of
the BCI in the discharge of quasi-judicial functions while probing into such grave instances.
(Rule 23 and 25 of the BCI Rules- Chapter II)

 Harish Chandra Tiwari vs. Baiju 2002 (2) SCC 67- Misappropriation of client’s money is
a grave misconduct to be committed by a legal practitioner, and must be punished
accordingly under the Advocates Act. (Rule 23 and 25 of the BCI Rules- Chapter II)5

 Suggestions
 Section 2 (a) In clause (a) of sub-section (1)
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36
The following words shall be added: - “and it shall include a law firm registered by the State Bar
Council under this Act and a Lawyer registered outside India and also registered under the
provisions of this Act.”

After amendment clause (a) shall read as follows: - “(a)“Advocate” means an advocate entered in
any roll under the provisions of this Act and it shall include a law firm and it shall include a law
firm registered by the Bar Council of India under this Act and a Lawyer registered outside India
and also registered by the Bar Council of India under the provisions of this Act “(aa) “Law Firm”
means a legal entity formed and registered under the partnership Act, 1932 or under the Limited
Liability Partnership Act, 2008 or a private or public limited company incorporated under the
Companies Act, 2013/Companies Act, 1956 for carrying out practice in law with limited or
unlimited liability and it includes such other partnerships which are formed for carrying out
practice in law but are not registered under the aforesaid Acts;”

 The following clauses (o) to (t) shall be added after existing clause (n) in subsection (1) of
section 2: -
 “(o)” Roll of Law Firms‟ means a roll of such law firms as are registered by State Bar
Council;”
 “Legal Services” includes the rendering of any service in the conduct of any case or other
legal proceedings before any court, tribunal or any other authority and giving advice on any
legal matter;

 Section -7
 The following clause (hh) shall be added after the present clause (h)of subsection (1): - (hh) to
provide for an independent National Legal Education Board in order to meet the challenges in
very nature of law, legal institutions and law practice are in the midst of a paradigm shift and
to look after the Continuing Legal Education for advocates “in the Country;‟

 Section 9

37
 Sub-section (1) of section 9 of the Act shall be omitted and substituted by the following sub-
section (1): - (1)There would be an 7 member independent Board of Discipline comprising of
eminent jurists, retired judges, social activists, and other persons of eminence to, the working
& functioning of this Board shall be not influenced by Bar Council of India and all decision
as far as possible be taken by consensus.

 Section 22

There would be a National electronic Register of the Advocates enrolled by the State Bar
Council and each member must provide a self-declaration in every three years on the electronic
portal. Provided non submission of self-declaration would automatically place the name of the
Member in the Non-verified list for a period of 12 months. If the name is not revived within the
period of next 12 months, it shall be treated as suspended. A list of suspended Members shall be
displayed on the Official website.

 Section 24

In sub-section (1) of section 24 of the Act, clause (d) shall be added after the existing clause
(c): _ “(d) he has successfully completed the following programmes: i. has undergone a course
of training in law for a minimum period of three months from a Training Centre which is duly
recognized by the State Bar Council with the prior approval of the Bar Council of India; ii. has
passed All India Bar Examination under All India Bar Examination Rules, 2010 of Bar Council
of India; iii. has been an apprentice for a period of 9 months with an advocate and a law firm,
who had been on the Roll of advocates for a period of not less than ten (10) years.

 Section 33:

38
Advocates alone entitled to practice_ Except as otherwise provided in this Act and any rules
made thereunder or in any other law for the time being in force, no person shall be entitled to
practice in any Court or before any Authority or Tribunal or person legally authorized to take
evidence on oath unless he is an advocate enrolled with a State Bar Council under this Act.
However, practice by law firms and foreign lawyers recognized and registered by the Bar
Council of India shall remain confined to the extent provided for in such registration and subject
to the terms and conditions of his/its registration.

 Conclusion

Advocates Act, 1961 is the updated version of the Indian Bar Council Act, 1926, or we can say
that the said act, i.e., Advocates Act, 1961 is replaced the Indian Bar Councils Act. An act is
passed by the parliament of India with the objective or motive to providing the laws relating to
the legal practitioner. Under the power mentioned in the act, the bar council of India made
certain rules can be termed as Bar Council of India rules which provides what kind of rules are
there for practice or mandatory provisions for legal education and also emphasizing more on the
part of professional misconduct.

Along with that, if you find out the question regarding the rights and duties of an Advocate or
what are their duties towards clients or a court or judges or a what kind of duties a client has
towards an advocate or court is describe in a very proper manner, so for findings of such kind of
question you have to see the Advocates act, 1961.

What has been enumerated above will show that the Advocates Act, 1961, has marked the
beginning of a new era in the history of the legal profession by vesting largely in the Bar
Councils the power and the jurisdiction which the courts till then exercised , by fulfilling the
aspirations of those who had been demanding an All India Bar and effecting a unification of the
Bar in India, by the creation of a single class of practitioners with power to practise in all the
courts and bound by rules made and a code of conduct laid down by their own bodies to which
the members could resort to for the protection of their rights, interests or privileges. The Act has
enabled representatives from the several states to come together to a common forum, and has
brought about integration.

39
A few matters have to be set right by legislation. Of these may be mentioned the existing
provision under section 49A vesting power in the central government to make rules in certain
cases. The government has not been in favour of dropping this provision. Agitations there have
been for putting an end to the dual system permitted in a sense to continue on the original side of
the West Bengal and the Bombay High Courts but with no result. It is satisfactory to note that
legal aid is to be included as a function of the Bar Councils.

It has integrated and constituted only one class as a legal practitioner that is the “Advocates”. No
doubt, various limitations have been put upon the Advocates under the Act but they are all in the
interest of the public.6

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 2. Critical Analysis of the Contempt of Courts Act, 1971.

Introduction:

The origin of the law of Contempt in India can be traced from the English law. In England
Superior Courts of record have form early times, exercised the power to commit for contempt
persons who scandalized the Court or the Judges. The right of the Indian High Courts to punish
for contempt, was in the first instance recognized by the Judicial Committee of the Privy Council
which observed that the offence of the contempt of court and the powers of the High Courts to
punish it are the same in such courts as in the Supreme Court in England. It also observed that
the three chartered contempt. Almost all the High Courts in India, apart from the chartered High
Courts have exercised the jurisdiction inherent in a court of record from the very nature of the
court itself. It has been judicially accepted throughout India that the jurisdiction was a special
one inherent in the very nature of the court.

The fist Indian stature on the law of contempt i.e., the Contempt of Courts Act was passed in
1926. It was enacted to define and limit the powers of certain courts in punishing contempt of
courts. When the Contempt of Courts Act, 1926 (XII of 1926) was in existence in British India,
various Indian States also had their corresponding enactment. These States were Hyderabad,
Madhya Bharat, Mysore, Pepsu, Rajasthan, Travancore-Cochin and Saurashtra. State enactments
of the Indian States and the Contempt of Courts Act, 1926 were replaced by the Contempt of
Courts Act, 1952 (32 of 1952).

An attempt was made in April, 1960 to introduce in the Lok Sabha a Bill to consolidate and
amend the law relating to Contempt of Courts. On an examination of the Bill, government
appears to have felt that the law relating to Contempt of Courts in uncertain, undefined and
unsatisfactory and that in the light of the constitutional changes which have taken place in the
country, it would be advisable to have the entire law on the subject scrutinized by a Special
Committee set up for the purpose. In pursuance to that decision a Committee was set up on 29th
July, 1961 and it submitted it report on 28th February, 1963 to define and limit the powers of
certain courts in punishing contempt of courts and to regulate their procedure in relation thereto.

41
Joint Select Committee of Parliament on Contempt of Courts went in detail and a new Bill, The
Contempt of Courts Bill, 1968 was prepared by the Joint Select Committee.

Objects and Reason:

It is generally felt that the existing law relating to contempt of Courts is somewhat uncertain
undefined and unsatisfactory. The jurisdiction to punish for contempt touches upon two
important fundamental rights of the citizens namely, the right to personal liberty and the right to
freedom of expression. It was, therefore, considered advisable to have the entire law on the
subject scrutinized by a special committee. In pursuance of this, a Committee was set up in 1961
under the Chairmanship of the late Shri H.N. Sanayal the then Additional Solicitor General. The
Committee made a comprehensive examination of the law and problems relating to contempt of
Court in the light of the position obtaining in our own country and various foreign countries. The
recommendations which the Committee made took note of the importance given to freedom of
speech in the Constitution and of the need for safeguarding the status and dignity of Courts and
interests of administration of justice.

The recommendations of the Committee have been generally accepted by Government after
considering the view expressed on those recommendations by the State Governments, Union
Territory Administrations, the Supreme Court, the High Courts and the Judicial Commissioners.
The Bill seeks to give effect to the accepted recommendations of the Sanyal Committee.

ACT 70 OF 1971

The Contempt of Courts Act, 1971 (70 of 1971) was passed by the Parliament in December 1971
and it came into force w.e.f. 24th December, 1971.

Amended Act

The Contempt of Courts (Amendment) Act, 1976 (45 of 1976)

42
What is Contempt of Court?

In common parlance, ‘contempt of court’ can be understood as an offence of lowering or defying

the authority of the court by disobeying its instructions. It’s worth noting, however, that the term
has been defined in the Act for the very first time in the history of the contempt law. Section 2(a)
of The Contempt of Court Act, 1971, defines the term to mean ‘civil contempt or criminal
contempt.’ The two although fundamentally different in character and essence can sometimes be
very hard to differentiate. While civil contempt is a wrong of private nature that injures the
interests of the party that is entitled to benefit from the order so disobeyed, criminal contempt is
a misdeed against the society at large where the contemnor by his words or actions undermines
the authority of the court and brings it disrepute.

Sections 2(b) and 2(c) of the Contempt Act seek to very meticulously define civil and criminal
contempt respectively. Whereas civil contempt is a ‘wilful disobedience to any judgment, decree,
direction, order, writ or other processes of a Court or wilful breach of an undertaking given to the
court’, ‘criminal contempt’ is ‘the publication (whether by words, spoken or written, or by signs,
or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever
which:

 Scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court,
or
 Prejudices, or interferes or tends to interfere with the due course of any judicial
proceeding, or
 Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of
justice in any other manner.’

The Calcutta High Court in Legal Remembrancer v. Motilal Ghose7 and the Allahabad High
Court in Vijay Pratap Singh v. Ajit Prasad 8 have both outlined the difference between the two
contempt. According to the latter, whereas the purpose of civil contempt is to make the
contemnor right the wrong done to a party by imposing sanctions, the idea behind criminal
contempt is to punish the contemnor who has, by virtue of his insolent tone or behaviour,
7
(1914) ILR 41 Cal 173
8
AIR 1966 All 305

43
dishonoured the court and therefore impeded the process of justice. More often than not,
however, there are cases of contempt that are neither typically in the nature of civil nor criminal.
For instance, when a contemnor while disobeying an order of the court conducts himself in a
rather impertinent, brazen manner, he brings upon himself the charges of fine or imprisonment as
well, apart from whatever sanctions the court chooses to impose. Such acts of contempt are
called Sui Generis.

Overview of the Act:

The Contempt of Courts Act, 1971 applies to the whole of India except to the State of Jammu
and Kashmir insofar as the offence is not in relation to the Supreme Court. The Act confers upon
certain courts power to punish individuals for contempt of themselves as also of subordinate
courts and also puts a limiting check on their said powers via elaborate provisions. The Act that
is comprised of a total of 24 sections, among other things, talks about the meaning of contempt,
definitions of civil and criminal contempt, what constitutes a contempt, defences available,
extraterritorial jurisdiction of the High Court, their power to punish contempt of subordinate
courts, and procedure after cognizance.

The statute of 1971 has recently been amended by the Contempt of Courts (Amendment) Act,
2006 to include the defence of truth under Section 13 of the original legislation. Section 13 that
already served to restrict the powers of the court in that they were not to hold anyone in contempt
unless it would substantially interfere with the due process of justice, the amendment further
states that the court must permit ‘justification by truth as a valid defence if it is satisfied that
it is in public interest and the request for invoking the said defence is bona fide.’ This was
certainly a step in the right direction that would not only balance the powers under the Act as
well as the two fundamental rights but also serve to check the untoward arbitrariness in the
judicial proceedings relating to contempt.

44
Legal Aspect- Essential ingredients and types:

For the concept of Contempt of Court, the Contempt of Court Act, 1971 was passed which dealt
with such a concept. Article 129 and 215 of the Constitution of India empowers the Supreme
Court and High Court respectively to punish people for their respective contempt. Section 10 of
The Contempt of Courts Act of 1971 defines the power of the High Court to punish contempt of
its subordinate courts. Power to punish for contempt of court under Articles 129 and 215 is not
subject to Article 19(1)(a).

Essentials:
The elements generally needed to establish a contempt are:
1. the making of a valid court order,
2. knowledge of the order by respondent,
3. ability of the respondent to render compliance, and
4. wilful disobedience of the order.

Types:
In India there are two distinct types of Contempt:

1. Civil Contempt: Under Section 2(b) of the Contempt of Courts Act of 1971, civil
contempt has been defined as wilful disobedience to any judgment, decree, direction,
order, writ or other process of a court or wilful breach of an undertaking given to a court.
2. Criminal Contempt: Under Section 2(c) of the Contempt of Courts Act of 1971, criminal
contempt has been defined as the publication (whether by words, spoken or written, or by
signs, or by visible representation, or otherwise) of any matter or the doing of any other
act whatsoever which:
(i) Scandalises or tends to scandalise, or lowers or tends to lower the authority of, any
court, or
(ii) Prejudices, or interferes or tends to interfere with the due course of any judicial
proceeding, or
(iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the
administration

45
 of justice in any other manner.
(a) 'High Court' means the high court for a state or a union territory and includes the
court of the judicial commissioner in any union territory.
Object

What is Third-Party contempt?

A third party to the proceeding may be guilty of contempt of court if they have a part to play in
the offence. In LED Builders Pty Ltd v Eagles Homes Pty Ltd 9, Lindgren J stated: "It is not
necessary to show that a person who has aided and abetted a contempt of court was served with
the order breached. It is necessary to show only that the person sought to be made liable knew of
the order."

Supreme Court decisions on Contempt of Court:

Ashok Paper Kamgar Union and Ors. vs Dharam Godha And Ors. 10 – In this case, the Supreme
Court examined the provision of Section 2(b) of the Contempt of Courts Act, 1971 that defines
the term civil contempt and held that the term ‘Wilful’ under Section 2(b) means an act or
omission which is done voluntarily and intentionally and with the specific intent to do something
the law forbids or with the specific intent to fail to do something the law requires to be done, that
is to say with bad purpose either to disobey or to disregard the law.

It signifies a deliberate action done with evil intent or with a bad motive or purpose. Therefore,
in order to constitute contempt, the order of the Court must be of such a nature which is capable
of execution by the person charged in normal circumstances. It should not require any extra
ordinary effort nor should be dependent, either wholly or in part, upon any act or omission of a
third party for its compliance. This has to be judged having regard to the facts and circumstances
of each case.
9
[1999] FCA 1213
10
AIR 2004 SC 105

46
Balasubramaniyam v. P. Janakaraju & Anr.11– In this case, the High Court of Karnataka
observed that the orders of Courts have to be obeyed unless and until they are set aside in
appeal/revision.

It was further observed that once litigants give an undertaking to a Court, they should comply
with it in all circumstances, the only exceptions being fraud or statutory bar. They cannot break
an undertaking with impunity and then attempt to justify it. The breach of solemn undertaking
given to a Court is a serious matter and will have to be dealt with seriously.

Bar Association vs. Union of India & Anr. 12– In this case, the Supreme Court dwelled into the
constitutional powers vested in it under Article 129 read with Article 142(2) of the Constitution
of India and the power of the High Court under Article 215 of the Constitution to punish for
contempt and held as follows:-

The Apex Court while examining this power remarked that no act of parliament can take away
the inherent jurisdiction of the Court of Record to punish for contempt and the Parliament’s
power of legislation on the subject cannot, therefore, be so exercised as to stultify the status and
dignity of the Supreme Court and/or the High Courts, though such a legislation may serve as a
guide for the determination of the nature of punishment which this court may impose in the case
of established contempt.

Rama Narang vs. Ramesh Narang and Anr.13– In this case, the respondent argued relating to
the maintainability of the contempt petition filed by the petitioner before Supreme Court by
taking a plea that the consent order recorded before the court did not contain an undertaking or
an injunction of the court and hence could not form the basis of any proceedings for contempt.

The Supreme Court in the aforesaid case held that the consent terms arrived at between the
parties before it, having been incorporated in the order passed by the court, any violation of the
said terms of the consent order and connected matters would tantamount to violation of the
Court’s order and therefore, be punishable under the first limb of Section 2(b) of the Contempt of
Courts Act, 1971.
11
2004 (5) Kar. LJ 338
12
(1998) 4 SCC 409
13
2006(11) SCC 114

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D.N. Taneja vs. Bhajan Lal 14 – In this case the Supreme Court stated that any person, who
moves the court for contempt, only brings to the notice of the court certain facts constituting
contempt of court. After furnishing the said information, he may assist the court but at the end of
the day, there are only two parties in such proceedings, the court and the contemnor.

Wilful disobedience to any judgment, decree, direction, order, writ or other process of
Court:
The term “wilful‟ as per the New Oxford illustrated Dictionary (1980 ed.) means “asserting or
disposed to assert one’s own will against instruction, persuasion etc., obstinately self-willed;
deliberate, intentional showing perversity or self–will.”

If the person alleged to have committed contempt is able to show the court the sufficient reason
to conclude that it is impossible to obey the order, the court will not justify in punishing the
alleged contemnor. “Wilful” means an act or omission which is done voluntarily and
intentionally and with the specific intent to do something the law forbids or with the specific
intent to fail to do something the law requires to be done, that is to say with bad purpose either to
disobey or to disregard the law. It signifies a deliberate action done with evil intent or with a bad
motive or purpose. Therefore, in order to constitute contempt, the order of the court must be of
such a nature which is capable of execution by the person charged in normal circumstances. It
should not require any extraordinary effort nor should be dependent; either wholly or in part,
upon any act or omission of a third party for its compliance. This has to be judged having regard
to the facts and circumstances of each case. 15 Disobedience of order of the court in order to
amount to “civil contempt” under section 2 (b) of the Contempt of Courts Act, 1971 16 must be
“wilful” and proof of mere disobedience is not sufficient. Where there is no deliberate flouting of
the orders of the court but a mere misinterpretation of the executive instructions, it would not be
a case of civil contempt.17 A person is not to be punished for contempt of court for disobeying an

14
(1988) 3 SCC 26
15
Ashok Paper Kamagar Union vs. Dharam Godha; AIR 2004 SC 105 at P.114
16
Section 2 (b) of the Contempt of Courts Act,1971 defines ‘civil contempt’ as ‘wilful’ disobedience to any
judgment, decree, direction etc. in contradiction to the definition of ‘criminal contempt’ which does not contain the
word ‘wilful’
17
Pandya Asim, The Contempt of Courts Act,1971 (Law and Procedure) (1st ed., 2003) at Pp.121-123

48
order of court except when the disobedience is established beyond reasonable doubt, the standard
18
of proof being similar, even if not the same, as in a criminal proceeding. However, in a case
Supreme Court convicted the contemnor on the basis of evidence which was only of
“preponderant probabilities”, which is not in conjunctions of the earlier stand taken by the court.
A civil contempt under section 2 (b) of the Act, must be made out only when, the order which is
alleged to be wilfully disobeyed must be couched in a clear and unambiguous language. It must
not be capable of different reasonable interpretations. In case it is not couched in clear and
unambiguous language or it is capable of more than one reasonable interpretation, in that event
no civil contempt would be made out. Similarly, if the direction contained in an order is not clear
and specific and is subject to or dependent upon determination of some other facts which are left
undetermined by the order and remained to be determined, the violation of such direction cannot
give rise to a proceeding for civil contempt.19

Critical Analysis and Limitations:

The warhorse of the Indian constitution and an eminent lawyer, Mr. Fali Nariman, who recently
came to the rescue of Justice Markandey Katju in his contempt case has rightly remarked in his
speech that “the offence of scandalising the court is a mercurial jurisdiction in which there
are no rules and no constraints.” It would not be wrong to say that there is an element of
uncertainty in the current legislation where it talks about how all acts, words, signs and visible
representations that scandalise or prejudice or interfere with the process of justice are punishable
offences. The Act nowhere sheds a touch of light on what might constitute “scandalising the
court” however. What might have meant to scandalise the court in the year 1971 might not mean
the same thing in 2017.

It is not necessary that scandalising or prejudicing any court or interference must have been
completed. Even though the process might have just commenced or in other words tending to
scandalise or to prejudice or to interfere or to obstruct administration of justice is also criminal

18
Rajendra Sail vs. Madhya Pradesh High Court Bar Association, 2005 (4) SCALE 295
19
Supra note 4

49
contempt. The scope of the act which constitutes criminal contempt is very wide. 20The definition
of the term contempt in section 2 (c) makes it clear that contempt may be committed either by
publication (whether by words, spoken or written, or signs) or by the doing of any other act
which leads to any of the consequences contemplated in sub-clauses (i),(ii) and (iii) of sub-
section (c) of section 2. Hence even though a letter may have been delivered in private capacity
to a magistrate, it may still lead to the consequences which are regarded as the essence of
criminal contempt. Its tendency to scandalise or lower the authority or interfere with the due
course of any judicial proceeding is the crucial test. Reactions to such letters or representations
are bound to vary with individuals. Nevertheless, it is not unlikely that a magistrate or a judge
may feel greatly scared or demoralised by such serious allegations and this may interfere with
the fearless and conscientious discharge of his duties. It is, therefore, a salutary principle
enshrined in the law of contempt of court that no person should be allowed to do any act which
has the effect of leading to any such consequences. In such circumstances the absence of
publication is immaterial.21 Further, it is not necessary for the contempt that the act must have
been done either in the face of the court or just in front of it. The word spoken or otherwise, or
published, or acts done might be outside the court but the same must be intended to scandalise or
prejudice or likely to interfere with or obstruct the fair administration of justice and are
punishable as criminal contempt of the court. 22 The principle of contempt by scandalising the
court extends to attack made on a judge in his administrative or other capacities. The Supreme
Court pointed out analysing section 2 (c) that is noteworthy, that in the categorisation of
contempt in the three sub-clauses (i) to (iii), only category (ii) refers to judicial proceeding.
Scandalising of court in its administrative capacity will also be covered by sub-clauses (i) and
(iii). The phrase “administration of justice” in sub-clause (iii) is far wider in scope than “course
of any judicial proceeding”. The last word “in any other manner” of sub-clause (iii) further
extend its ambit and give it a residuary character. Although sub-clauses (i) to (iii) describe three
distinct species of „criminal contempt‟ they are not always mutually exclusive. Interference or
tendency to interfere with any judicial proceeding or administration of justice is a common

20
Tekchand J., The Law of Contempt of Court and of Legislature (4th ed., 1997), The University Book Agency,
Allahabad, P.114
21
State vs. V.N. Dikshit 1973 AWR 80: 1973 AII L J 180
22
Halsbury Law of England (4thed.) Vol. 9, Para 7

50
element of sub-clauses (ii) and (iii). This element is not required to be established for a criminal
contempt of the kind falling under subclause (i). 23

Innocent publication and distribution of matter.

S.3 deals with this defense. If a criminal contempt is initiated against a person on the ground that
he is responsible for publication or for distribution of publication which prejudices or interferes
with the pending proceedings, the contemnor may take the following steps:
(a) he may plead under S. 3(1) that at the time of publication, he had no reasonable ground for
believing that the proceeding was pending.
(b) he may plead under S.3(2) that at the time of publication, no such proceeding was pending.
(c) he may plead under S.3(3) that at the time of distribution of publication, he had no reasonable
ground for believing that the matter (published or distributed by him) contained or was likely to
contain any material which interfered or obstructed the pending proceeding or administration of
justice.

Fair and accurate report of judicial proceedings

S.4 of the Act provides that a person should not be held guilty of Contempt of Court for
publishing a fair and accurate report of any judicial proceedings or any stage thereof. S. 7 of the
Act provides Exception to the general principle that justice should be administered in public. Sub
sections (1) and (2) of S.7 provide that a person shall not be guilty of Contempt of Court for
publishing the text or for publishing fair and accurate summary of the whole or any part of the
order made by the court in camera (in Chamber) unless the court has expressly prohibited the
publication of the proceedings on the grounds of:
a) Public Policy
b) Public Order
c) Security of the State
d) Information relating to a secret process, discovery or invention, or, in exercise of the power
vested in it.
Fair criticism of judicial act
23
Rachapudi Subba Rao vs. Advocate General, A.P., (1981) 2 SCC 577 at P. 583; also, Baradakanta Mishra vs.
Registrar of Orissa High Court AIR 1974 SC 710 ; G.N.Verma vs. Hargovind Dayal AIR 1975 AII 52 ; in appeal
Hargovind Dayal Srivastava vs. G.N.Verma AIR 1977 SC 1334 ; Registrar of Orissa High Court vs. Shri
Baradakanta Mishra AIR 1973 Ori 244 (FB) ; State vs. Janardan Prasad Singh 1986 PLJR 469

51
S.5 provides that a person shall not be guilty of criminal contempt for publishing any fair
comment on the merits of any case which has been finally decided. A defense can be taken that
the statement complained of (in respect of publication of which criminal contempt has been
initiated) must be in respect of a case which has been finally decided and not in respect of
pending proceedings. Moreover, the statement should come from the mouth of a knowledgeable
person in the field of law and not from a litigating party which has lost the case. In short, fair
criticism means that criticism which while criticizing the act of a Judge does not impute any
ulterior motive to him. In case of Arundhati Roy, the Supreme Court has held that judicial
criticism cannot be invoked under the garb of Freedom of Speech and Expression under Article
19(1)(a) of the Constitution of India.

Bonafide complain against the presiding officer of a subordinate court.

Section 6 provides that a person shall not be guilty of contempt of court in respect of any
statement made by him by way of complaint in good faith concerning the presiding officer of any
sub-ordinate court to the High Court or to the Court to which he is sub-ordinate. The protection
of this section will be available only when it is proved that the complaint was made in good faith.

In ascertaining the 'good faith' the intention and the purpose sought to be achieved by complaint
will be taken into consideration and it would be ensured that the same was not made with ulterior
motive.

No substantial interference with due course of justice.

By the Contempt of Courts (Amendment) Act, 2006, a new Section 13 has been substituted in
place of existing S.13. This new S. 13 provides that “notwithstanding anything contained in any
law for the time being in force, no Court should impose a sentence for Contempt of Court unless
it is satisfied that the Contempt is of such a nature that it substantially interferes or tends to
interfere with the due course of justice.”

52
Justification by truth.
The amended Section 13(2) provides that the Court may permit justification by truth as a valid
defence in any proceeding for criminal contempt if it is satisfied that it is in public interest. Thus,
truth is now a defence if it is in the public interest and bonafide.

The statement complained of is open to different interpretations.

If the words complained of are open to two different interpretations and one of them indicates
contempt while the other does not, the contemnor cannot be punished for non-compliance of one
interpretation. But, in order to succeed in this defense, it is necessary to prove that the order was
complied with in respect of one interpretation. If the order is not complied with at all, it cannot
be proved that there was a reasonable doubt as to the interpretation of the order. On the other
hand, it will be presumed that a doubt is deliberately sought to be created so as to avoid the
compliance of the order.

Defamation of the judge personally.

If the publication or other act is merely a defamatory attack on the judge and is not intended to
interfere with the administration of justice, it will not be taken as contempt of court.

The publication or other Act amounts to Contempt of Court only when it has nexus with the
functioning of a judge. The statement complained of may amount to Contempt of Court only
when it is made against a judge in his judicial capacity in the exercise of his judicial functions.
However, in such a situation a judge is not remediless and he has the same remedies available
which are available to a common man. Any personal attack upon the judge unconnected with the
office he holds, is dealt with under the ordinary rules of Libel and Slander.

The Limitation period for actions of contempt has been discussed under Section 20 of the
Contempt of Courts Act of 1971 and is a period of one year from the date on which the contempt
is alleged to have been committed.

53
Conclusion:

While freedom of speech and expression and right to personal liberty are important, no less
important is the faith of the people in the judicial institution of the country. Sine qua non of a
healthy, civilised society, saddled with the exacting task of disbursing justice, the Judiciary of
India must be greeted with proper and equitable standards of reverence. The three main purposes
as rightly laid down by the House of Lords in Attorney General v. Times Newspapers Ltd. are ‘to
enable the parties to litigation and the witnesses to come before the court without outside
interference; to enable the courts to try cases without such interference; and to ensure that
authority and administration of law are maintained.’ It is therefore imperative to preserve the last
bastion of the Rule of Law in the country and uphold its dignity.

Whereas Articles 19(1)(a) and 21 continue to put a question mark on the face of the entire
legislation, it is important to note that, while there may be a shade of precariousness in the
current legislation that needs to be plugged, the statute by way of Sections 13 and 16 puts a
dampening check on the discretionary powers of the court. Section 16 levels the playing field by
bringing judges and magistrates on an equal footing with the ordinary individuals as far as
contempt is concerned. Section 13 allows for the defence of truth in the contempt proceedings
while also prohibiting the judges from charging anyone except when there is a palpable and
substantial obstruction of justice.

The summary and quick mode of meting out punishment to the contemnor, if he is guilty is very
efficacious in inspiring confidence in public as to the institution of justice, without such
protection courts would go down in public respect and maintenance of law and order will be in
jeopardy. Such need for procedure was approved for effective protection of institution of
justice.24 The tolerance in the society is supposed to go with the advancement of the time. Hence,
the standard of scurrilous abuse or scandalising the court should have to be change with the
tolerance in the society.25

References:

24
State of U.P. vs. Beg Raj Singh, 1983 Cr.L.J. 866 (All). This procedure of orevimanu was approved in Amrit
Bazar Patrika Case by Hon’ble Mukherjee J
25
Ref. Gordon Borrie and Nigel Lowe in their Treaties “Law of Contempt”

54
 The Concept and Definition of ‘Contempt of Court’
(https://shodhganga.inflibnet.ac.in/bitstream/10603/194003/7/07_chapter%202.pdf)
 All you need to know about contempt of court - Aishwarya Rastogi
(https://blog.ipleaders.in/contempt-of-court/amp/)
 The Concept of the Contempt of Court- Rituj Chopra
(http://www.legalserviceindia.com/article/l255-Contempt-of-Court.html)
 Important Judgments on Contempt Law in India in India- May 23, 2018
(https://www.vakilno1.com/supreme-court/important-judgments-on-contempt-law-in-
india-in-india.html)

Accounts Problems (Journal Entries and Theory Questions)

55
WRITTEN SUBMISSION
QUESTION 1

DATE PARTICULARS L.F DEBIT CREDIT

No.
Dena Banka/c………………….....Dr. 1,00,000
01.04.2018 To Capital a/c 1,00,000
[Being capital introduced into business]
02.04.2018 Purchases a/c……………………..Dr 20,000
To Supplier 1 a/c 20,000
[Being goods purchased on credit from
supplier 1]
Computer a/c…………………….Dr 25,000
03.04.2018 To House of Laptops a/c 25,000
[Being computer purchased from House of
Laptops]
04.04.2018 Customer 1 a/c…………………..Dr 45,500
To Sales a/c 45,500
[Being goods sold to customer 1 on credit]

Cash a/c…………………………. Dr 1,00,000

05.04.2018 To Mr. G a/c 1,00,000
[Being money borrowed from Mr. G]
06.04.2018 Credit Card a/c…………………..Dr 2,500
To Bank a/c 2,500
[Being Credit card processing fee paid]
Bank a/c………………………… Dr 25,500
07.04.2018 To Customer 1 a/c 25,500
[Being received cheque from Customer 1]
08.04.2018 Cash a/c…………………………..Dr 20,000
To Customer 1 a/c 20,000
[Being cash received from Customer 1]
Supplier 1 a/c…………………… Dr 20,000
09.04.2018 To Cash a/c 20,000
[Being Cash paid to Supplier 1]
10.04.2018 Cash a/c ………………………….Dr 2,50,000
To Capital a/c 2,500,000
[Being cash received from owner]
11.04.2018 Telephone Expenses a/c……… Dr 10,000
To Airtel a/c 10,000
[Being telephone expenses booked]
12.04.2018 Airtel a/c…...Dr 12,000
To Bank a/c 12,000
[Being telephone expenses paid]
13.04.2018 Audit Fees a/c……………………..Dr 1,50,000
To M/s K & Co a/c 1,50,000

56
 [Being audit fees paid]
14.04.2018 Mr. M a/c………………………….Dr 25,000
To Bank ac 25,000
[Being professional fee paid to Mr. M]
15.04.2018 ICICI Bank a/c…………………..Dr 50,000
To Cash a/c 50,000
[Being Cash deposited to ICICI Bank]
16.04.2018 Ms. D a/c……………… Dr 10,00,000
To Royalty a/c 10,00,000
[Royalty amount booked to be received from
Ms. D ]
16.04.2018 Bank a/c………………….. Dr 10,00,000
To Ms. D a/c 10,00,000
[Being royalty amount received from Ms. D]
17.04.2018 Legal fees a/c……….……..Dr 40,000
To M/s IPR Agency a/c 40,000
[Being legal fee of trademark paid to IPR
Agency]
18.04.2018 Rent a/c…………………………..Dr 1,000
To Bank a/c 1,000
[Being rent amount deposited to landlords a/c]
19.04.2018 Rent a/c………………………….Dr 500
To Rent Payable a/c 500
[Being rent amount booked ]
20.04.2018 Rent payable a/c…………………..Dr 10
To Cash 10
[being rent of April paid in cash]

57
Theory Questions

 Explain the rules for personal account, real account and nominal account along with
relevant examples, also explain what the benefits of maintaining books of accounts are.

These accounts constitute the part of accounting framework which is bound by the
accounting rules.
Accounting rules are statements that establishes guidance on how to record transactions.
As per accounting rules all the accounting transactions should be recorded in the books of
entity using double entry accounting method. Double entry accounting method means for
each transaction two (or more) accounts are involved, one account shall be debited and
the other account shall be credited with the same amount.

For example: If a person purchases an asset on credit for Rs. 10,000, then the accounting
shall be done by crediting cash and debiting asset account simultaneously with an amount
of Rs. 10,000.

Accounting rules works as a base for any accounting framework. Before applying
accounting principles, a person is required to know the basic accounting rules that in a
transaction which account should be debited and which account should be credited.

Accounting rules are used uniformly by all entities and thus using it results in consistent
and comparable financial reports.

There are rules of debit and credit to record transactions, one is traditional approach and
the other is modern approach, both the approaches have been defined as follows:

Golden Rules of Accounting (Traditional Approach):

Golden rules of accounting are the basic accounting rules on the basis of which
accounting entries are recorded.

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Personal Account:
The rule related to Personal account states ‘debit the receiver and credit the giver’. In
other words, if a person receives something, receiver’s account shall be debited and if a
person gives something, giver’s account shall be credited.

For example, if Mr. X receives cash of Rs. 10,000 from Mr. Y then in the books of Mr.
Y, Mr. X will be receiver so account of Mr. X will be debited with an amount of Rs.
10,000.

Real Account:
The rule related to real account states ‘debit what comes in, credit what goes out’. In
other words, if something comes into business, it shall be debited and if something goes
out of business, it shall be credited.

For example: An asset purchased for cash would be accounted as per rules of real account
wherein asset is what came into business, so asset account will be debited and cash is
something that got out of business, so cash account will be credited.

Nominal Account:
The rule related to nominal account states that ‘debit all expenses and losses, credit all
incomes and gains.’ In other words, if any expense or loss is incurred for the business,
expense or loss account shall be debited and if any income or gain is earned in business,
income account or gain/profit account shall be credited.

For example: If salaries are paid to employees then salary is an expense and hence salary
account shall be debited. Likewise, any rent received shall be credited to rent account as
it is an income.

59
Modern Rules of accounting (Classification of Accounts):

As per modern rules of accounting, transaction will be categorized into 6 heads or accounts and
any increase or decrease in such account will either be debited or credited in the manner shown
in the table given below:

Types of Account Account to be Account to be credited

debited

Assets account Increase Decrease

Liabilities account Decrease Increase

Capital account Decrease Increase

Revenue account Decrease Increase

Expenditure account Increase Decrease

Withdrawal account Increase Decrease

For example: Mr. X sold goods to B for Rs. 6,000 on credit. In such case, Mr. X will record two
accounts, one is B (Debtor Account which is an asset account) and the other is sales (which is a
revenue account). In this case since revenue has increased and asset account has also increased,
asset will be debited and sales will be credited. Entry will be:

B (Debtor) Account Dr.

To Sales Account
(Being goods sold to B on credit)

Hence, it can be concluded that accounting rule is basis of accounting. Once a transaction has
been done, it shows how that transaction should be recorded in the books.

60
Books of Accounts

All business establishments and taxpayers are required to keep a record of their day to day
business transactions in order to know the result of their operations. The said record is referred to
as “books of accounts”.
There are two main books of accounts, Journal and Ledger. Journal used to record the economic
transaction chronologically. Ledger used to classify economic activities according to nature.

The Income Tax Act has specified the books of accounts that are required to be maintained for
the purpose of Income Tax. These have been prescribed under section 44AA and Rule 6F.

Books of accounts/accounting records have to be maintained if the gross receipts are more than
Rs. 1,50,000 in 3 preceding years for an existing profession. This also applies to a newly set up
profession whose gross receipts are expected to be more than Rs. 1,50,000.

The accounting records to be kept have been prescribed in Rule 6F. The below professions are
required to maintain Books of accounts/accounting records:

 Legal
 Medical
 Engineering
 Architectural
 Accountancy
 Technical consultancy
 Interior decoration
 Authorized representative — A person who represents another person for a fee before a
tribunal or any authority constituted under any law. It does not include an employee of
the person so represented or a person who is carrying on the profession of accountancy.

61
  Film artist — This includes a producer, editor, actor, director, music director, art director,
dance director, cameraman, singer, lyricist, story writer, screenplay or dialogue writer
and costume designers.
 Company secretary

If you are a freelancer pursuing any of these listed professions and your gross receipts are more
than Rs. 1,50,000, these rules shall apply to you.
If the gross receipts of the Professions listed above are not more than Rs 1,50,000 in any one or
more of the preceding 3 years for an existing profession or for a newly set up profession whose
gross receipts are expected to be not more than Rs 1,50,000 – the professional is not required to
maintain books of accounts as per section 44AA. In such a situation, a professional has to
maintain books of accounts which would enable the AO to compute the taxable income of the
professional from them.

Specified books of account as per Rule 6F

 Cash book
 A record of day to day cash receipts and payments which shows cash balance at the end
of the day or at best at the end of each month and not later.
 A journal according to mercantile system of accounting
 A journal is a log of all day to day transactions. It is a record, in accounting terms, where
total credits equal total debits, when we follow the double entry system of accounting ie
each debit has a corresponding credit and vice versa.
 A ledger where all entries flow from the journal, has details of all accounts, this can be
used to prepare the financial statements.
 Photocopied of bills or receipts issued by you which are more than Rs 25
 Original bills of expenditure incurred by you which are more than Rs 50

Benefits of maintaining books of accounts are as follows:

1. It provides for presenting relevant, timely, and informative financial data

62
This financial data – provided buy an accurate bookkeeping system – gives managers the
information they need to make daily business operating decisions. Bookkeeping will let a
manager know how much cash is on hand at any given time. Therefore, a manager can monitor
this cash account and then decide if ample cash is available to make purchases. This could be
purchasing more inventory, or purchasing advertising in a local newspaper to promote the
business. A manager would not know what funds are available for use without the company’s
bookkeeping system telling him or her.

2. It provides for the management of cash

Bookkeeping enables a business to see how money is flowing in and out of its business. Each
business must pay suppliers for the goods it purchases, which are then resold to the end-
customer. Bookkeeping permits business managers to see how much funds outflow is taking
place to suppliers.

In addition, cash management, through bookkeeping, enables a business to see how much funds
are coming in from sales to customers. Bookkeeping helps keep all customer accounts organized
and up-to-date. Therefore, bookkeeping enables a business to see if they are spending too much
on inventory, while not reaping the cash inflow from sales that they should. Bookkeeping figures
give managers an alert that they must manage their cash flow better.

3. It provides for internal control

A good bookkeeping system is a safeguard against persistent internal theft. Bookkeeping

numbers will alert a business as to whether an employee is channeling company assets
elsewhere. For example, a dishonest employee may be channeling funds to his or herself, and
then trying to mask this activity through altering bookkeeping records. A forensic audit of
bookkeeping records (along with employee monitoring) can help detect this fraudulent activity.

63
The issue here is that there must be an accurate bookkeeping system in place that can be
investigated to trace the fraudulent activity.
It is worth it for a business to have a good bookkeeping program in place to monitor operating
performance. Bookkeeping also helps a business be organized as concerns payroll expenditures
and payroll taxes. Furthermore, a bookkeeping system is a way of keeping track of daily
operating expenses. A business, via its bookkeeping system, can see if it is spending too much on
electricity, heat, water, maintenance and repairs, and more. Bookkeeping figures will let a
business manager know where costs must be cut to ensure the business remains viable and
profitable.

64