Vuaysingh Rathore v. Murarilal & Ors.

KRISHNA IYl':R, J. The Appellant, a fledging in the legal pro-fession, has been punished by the Tribunal of the Bar Council for eating the forbidden fruit of dubious professional conduct by impro-perly certifying the solvency of a surety for an accused person, his client. Suspension from practice for one month is the punishment awarded by the trial tribunal and in appeal. Counsel for the appellant Shri Khanduja, has pleaded for an admonitory sentence by the Court ex-misericordium. Of course, the punitive pharmacopoeia of the Advo-cates Act, in Section 35, does permit reprimand provided the ends of public justice are met by this lenien'cy. After all, public professions which enjoy a monopoly of public audience have a statutorily enforced social. accountability for purity, probity and people-conscious service. In our Republic, Article 19(1) (g) vests a fundamental right to practise any profession only subject to reasonable restrictions in the interests of the general public (vide Art. 19(6). The law forbids the members of the legal or other like professions from converting themselves into a conspiracy against the laity and all regulations necessary for ensuring a people-oriented bar without exploitation potential are permissible, nay necessary. Rule 10, chapter 2· part six of the Rules of Bar Council of India for Professional Misconduct framed for disciplinary purposes is stated lo have been violated by the appellant for which dispensatory punishment has been meted out.

The factual setting gives an insight into the degree of deviance af the delinquent appellant. Punishment must be geared to a social goal, at once deterrent and· reformatory. In the present case, the appellant is charged with certifying the solvency of a surety in a bailable offence. Obviously, the accused, who was the client of the appellant, was entitled to be enlarged on bail because the offence for which he was in custody was admittedly bailable. Even so, it is _ a common phenomenon in our country that bail has too often be-

come a bogey and an instrument of unjust incarceration. There are

VIJAYSINGH v. MURARILAL (Krishrl.1 Iyer, J.) 207 some magistrares who are never satisfied about the solvency of sure-ties except when the praperty of the surety is within their jurisdic-tion and Revenue Officers have attested their worth. This harasses the poor and leads to corruption as pointed out by this Court in M oti Ram's case(1). It may, therefore, be quite on the cards that some sympathetic lawyer who appears for an indigent accused may com-miserate and enquire whether the. surety is solvent. If he is satis-fied, on sure basis, that the surety is sufficiently solvent, then he may salvage the freedom of the accused by certifying the solvency of which he has satisfied himself. It is also possible that the detainee is· a close re!Ution or close friend or a poor servant of his. In that capacity, not as a lawyer, he may know the surety and his solvency or may ofler himself as a surety. If a lawyer's father or mother is arrested and the Court orders release on bail, it is quite conceivable and perhaps legitimate, if the son appears for his parent and also stands surety. He violates the rule all the same. The degree of culpability in a lawyer violating Rule 10, chapter 2, part six depends on the total circumstances and the social milieu.

This Court has hel.d, taking cognizance of the harassment flowing from sureties being insisted upon before a person is enlarged or bail-ed out, that the Court has the jurisdiction to release on his own bond without the necessity o fa surety. The question, therefore, is whether the circumstances of the offence and offender are venal or venia1.

The Rule with which we are concerned is a wholesome one in the sense that lawyers should not misuse their role for making extra perquisites by standing surety for their clients or certifying the sol-vency of such sureties. That is a bolt on the bar, an exploitative stain on the profession. At the same time, the punishment is flexible ip the sense that where the situation cries for the help of the lawyer in favour of a client who is languishing in jail because his surety is ooing unreasonably rejected, we may not frown upon a lawyer who helps out the person, not by false pretences, but on the strength of factual certitude and proven inability to substantiate solvency. Jn the presenf C'ase, the circumstances are amelioratary and hardly warr-ant condign punishment.

The lawyer is young, the offence is not tainted with turpitude and the surety ivhose solvency be certified was found to be good. The most that may be justified is perhaps a public reprimand since .censure has a better deterrent value on the errant brethren in the

---·~-- (I) [1969] l SCR 335.

Moti R'.im & Ors. v. State of M.P.

profession in some situations than a suspension for a mouth from professional practice which may pass unnoticed in the crowd of law-yers and the delinquent himself may be plying his business except for appearance in Court. In suitable cases, of course, even severity of suspension or disbarment may be justified.

This Court should not -interfere ordinarily with a punishment imposed by the Disciplinary Tribunal except where strong circums-tances involving principle are present. Ini our vast country of illi-terate litigants and sophisticated litigation, the legal position must be so explained as to harmonise the interests of the indigents who are marched into Court and the professional probity of the Bar which is an extended instrument of justice.

We .hold that public admonition is an appropriate sentence in the present case and proceed to administer it in open court to the appel-lant ! We hereby reprimand him and direct that he shoall not violate the norms of professional conduct and shall uphold the purity and probity of the profession generally, and, in particular, as spelt out in the rules framed by the Bar Council of India. We condone his deviance this time and warn him that he shall not violate again.

The appeal is, to this extent, allowed and the sentence of repri-mand substituted for the sentence of suspension. -

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1922 of 1979. From the Judgment and Order dated 7-5-1979 of the Disciplinary Committee of the Bar Council of India in D.C. Appeal No. 19/78.

Appellant in Person and S. S. Khanduja for the Appellant.