Rules relating to the complaint and their disposal against Advocates in India

Bar Council of India has prescribed certain rules to deal with complaints against advocates and the procedure to be followed by the Disciplinary Committee. These rules are summarised hereunder:

Chapter I of Part VII of Bar Council of India Rules deals with the procedure which the Disciplinary Committee of State Bar Council and the Bar Council of India may adopt for disposing of complaints and enquiry under Sections 35, 36 and 36-B of the Advocates Act, 1961.

The provisions of Sections 35, 36 and 36-B having been already discussed; need not be explained again. According to sub-rule (1) of Rule 1, a complaint against an advocate shall be in the form of a petition and supported by an affidavit by the complainant. It, further provides that if the complaint is not in English, a translation thereof shall be filed alongwith the same. Every complaint shall be accompanied by the fees as prescribed in the rules framed under Section 49 (h) of the Act. Sub-rule (2) of Rule I provides that the Secretary of the Bar Council may require the complainant to pay the prescribed fees, if not paid, to remove any defects and call for such particulars or copies of the complaint or other documents as may be considered necessary. Sub-rule (3) of Rule I lays down that on a complaint being found to be in order, it shall be registered and placed before the Bar Council for such order as it may deem fit to pass. Sub- rule (4) of Rule 1 certifies that no matter taken up by a State Bar Council suo motu or arising on a complaint made under Section 35 of the Act, shall be dropped solely on the reason of its having been withdrawn settled or otherwise compromised, or that the complainant does not want to proceed with the enquiry.

Rule 2 of Part VII of Chapter-I lays down that before referring a complaint under Section 35 (1) of the Advocates Act, to one of its Disciplinary Committees to be specified by it, the Bar Council may require a complainant to furnish within a time to be fixed by it, further and better particulars and may also call for the comments from the advocates complained against.

Rule 3 provides that after a complaint has been referred to a Disciplinary Committee by the Bar Council, the Registrar shall expeditiously send a notice to the advocate concerned requiring him to show cause within a specified date of the complaint made against him and to submit the statement of defence, documents and affidavits in support of such defence, and further informing him that in case of his non-appearance on the date of hearing fixed, the matter shall be heard and determined in his absence.

Explanation to Rule 3 provides that appearance includes, unless otherwise directed, appearance by an advocate or through duly authorised representative. According to sub-rule (2) of Rule 3, if the Disciplinary Committee requires or permits, a complainant may file a replication within such time as may be fixed by the Committee.

Rule 4 lays down that the Chairman of the Disciplinary Committee shall fix the date, hour and place of enquiry which shall not ordinarily be later than thirty days from the receipt of the reference. The Registrar shall give notice of such date, hour and place to the complainant or other person aggrieved, the advocate concerned and the Attorney- General or the Additional Solicitor-General of India, or the Advocate- General, as the case may be, and shall also serve on them copies of the complaint and such other documents mentioned in Rule 24 of this Chapter as the Chairman of the Committee may direct at least ten days before the date fixed for the enquiry.

Rule 5 which describes how the service of the notice will be carried on, "provides that the notices referred to in this Chapter shall, subject to necessary modifications, be in Form Nos. E-I and E-2, be sent to the advocates appearing for the parties. Notice to a party not appearing by the advocate shall be sent to the address as furnished- in the complaint or on the grounds of appeal. The cost of the notices shall be borne by the complainant unless the Disciplinary Committee otherwise directs. However, the notices may be sent ordinarily through a messenger or by registered post acknowledgement due, and served on the advocate or the party concerned or his agent or other person as provided for in Order V of the Civil Procedure Code. Notices may also be sent for service through any Civil Court as provided for under Section 42 (3) of the Advocates Act.

According to this Rule, where the notice sent to any party cannot be served as aforesaid it may be served by fixing a copy thereof in some conspicuous place in the office of the Bar Council and also upon some conspicuous part of the house in which the party concerned is known to have last resided or had his office, or in such other manner as the committee thinks fit. Such service shall be deemed to be sufficient service. Payment of bills and the charges for summons to witnesses etc. shall be -in accordance with the rules under Section 49 (h) of the Advocates Act.

Rule 6 of Chapter I of Part VII lays down that the parties can appear in person or by an advocate who should file a Vakalatnama giving the name of the Bar Council in which he is enrolled, his residential address, telephone number, if any, and his address for service of notices. A Senior Advocate is entitled to appear with another advocate who has filed a Vakalatnama. The Bar Councilor its Disciplinary Committee may at any stage of a proceeding appoint an Advocate to appear as amicus curiae. Such advocates may be paid such fee as the Councilor the Committee may decide. Excepting when the committee has otherwise directed, service on the Advocate shall be deemed to be sufficient service on the parties concerned, even if copies of the notices are in addition sent to the parties, whether the parties have or not been served. Unless otherwise indicated, where more than one advocate appears for the same party, it is sufficient to serve the notice on any of them.

According to Rule 7 of Chapter I of Part VII, if an enquiry on a complaint received, either the complainant or the respondent does not appear before the Disciplinary Committee inspite of service of notice, the Committee may proceed ex parte or direct fresh notice to be served. Any such order for proceeding ex parte may be set aside on sufficient cause. being shown, when an application is made' supported by an affidavit, within 60 days of the passing of the ex parte order. Explanation to Rule 7 lays down that the provisions of Section 5 of the Limitation Act, 1963, shall apply to this Rule.

Rule 8 of Chapter I of Part VII provides that the Disciplinary Committee shall hear the Attorney-General or the Solicitor- General of India or the Advocate-General, as the case may be, or their Advocate and parties of their Advocates, if they desired to be heard, and determine 'the matter on documents and affidavits unless it is of the opinion that it should be in the interest of justice to permit cross- examination of the deponents or to take oral evidence, in which case the procedure for the trial of civil suits, shall as far as possible be followed. However, the Disciplinary Committee may at any stage direct the parties or their advocates to furnish such further and better particulars as it considers necessary.

Rule 9 of Part I of Chapter VII lays down that evidence given before the Disciplinary Committee shall be recorded preferably' in English by any Member of the Committee or any other person authorised by the Committee. The evidence recorded shall be signed by the Chairman, or if the Chairman is not there when the evidence is recorded, by any Member of the Committee. However, whenever the record of a case decided by the State Bar Councilor its Disciplinary Committee in which evidence has been recorded in a language other than English, is required to be sent to the Bar Council of India or its Disciplinary Committee, a translation thereof, in English made by a person nominated by the Committee or Registrar certifying the same to be true copy shall also be sent.

Rule 10 of Part I of Chapter VII provides that every Diciplinary Committee shall make a record of its day-to-day proceedings. The Registrar of the Disciplinary Committee shall maintain a case diary setting out shortly in order of date, all relevant information concerning the date of filing, the date of hearing and dispatch and service of the notice on the parties or the Advocates or the Advocate-General or the Solicitor-General or the Advocate-General, as the case may be, of statements or petitions filed and or of the order thereon, and of other proceedings in the matter before the Committee.

According to Rule 11 of Part I of Chapter VII, if an enquiry pending before the Diciplinary Committee, the complainant dies and there is no representative who is willing to conduct the case on his behalf, the Disciplinary Committee may, having regard to the allegations made in the complaint and the evidence available, make a suitable order either to proceed with the enquiry or to drop it. In the case of enquiry against only an advocate, on his death the Disciplinary Committee shall record the fact of such death and drop the proceedings. Where the enquiry is against more than one advocate, on the death of one of them, the Disciplinary Committee may continue the enquiry against the other advocate unless it decides otherwise. No disciplinary enquiry shall be dropped solely by reason of its having been withdrawn, settled or compromised, or that the complainant does not want to proceed with the enquiry.

According to Rule 14 of Part I of Chapter VII, the finding of the majority of the members of the Disciplinary Committee shall be the finding of the Committee. The reasons given in support of the finding may be given in the form of a judgment, and in the case of a difference of opinion, any member dissenting, shall be entitled to record his dissent giving his reasons. It shall be competent for the Disciplinary Committee to award such costs as it thinks fit. The Registrar of the Disciplinary Committee shall send free of charge to each of the parties in the proceedings, a certified copy of the final order or judgment as set out in Rule 36 of this Chapter.

Courtesy:- Legal Point Foundation