June 23, 2024
Home » “CONDUCT OF ADVOCATES”  OF THE ADVOCATES ACT, 1961: CHAPTER V
Spread the love

This article has been written by SWAPNIL DUTT VYAS Triple MBA in (Finance ,Marketing and Insurance ) from Top university of India  AICTE approve and Completed three year full time L.L.M (Master of Law )  in  (Business law/corporate law)

Introduction

Chapter V of the Advocates Act, 1961, outlines the essential “Conduct of Advocates,” setting the benchmark for ethical standards in the legal profession. Uphold these guidelines to maintain client trust, enhance your reputation, and contribute to a just legal system.

Section 35 Punishment of advocates for misconduct.―

State Bar Council  after receving the complaint has reason to believe that advocate is  guilty of professional or other  misconduct, it will refer the case to disciplinary committee for disposal .

 State Bar Council by  its own motion or on application  by any other person withdraw  proceeding  before  disciplinary committee and direct   any other disciplinary committee of that State Bar Council for inquiery  disciplinary committee of  State Bar Council  will fix a date for the hearing of the case and will give a notice  to the advocate  ,  Advocate-General of the State[1].

Disciplinary committee of a State Bar Council after giving  advocate  and Advocate-General an opportunity of being heard, will make any of  the  orders like ,dismiss the complaint  and direction for  proceedings to  be filed, Reprimand the advocate, suspend the advocate from practice ,remove the name of the advocate from the State roll of advocates,suspension of advocate , debarred from practising in any court or before any authority or person in India. In respect of appearance  Advocate-General  will appear before the disciplinary committee of the State Bar Council  in person or through any advocate Advocate-General  and Advocate-General of the State will , in relation to the Union territory of Delhi, mean the Additional  Solicitor General of India.

Section 36 Disciplinary powers of Bar Council of India.―

Bar Council of India  after receipt of complain  related to guilty of professional or mis conduct of advocate  whose name not entered on any state  roll   it will refer the case for disposal to its disciplinary committee.

-Disciplinary committee of the Bar Council of India with  own motion or   report by any State Bar Council or  application made  person interested  mae inquiry and  dispose the proceeding against the advocate .

– Disciplinary committee of the Bar Council of India for  disposing of any case  will observe  the procedure laid down in section 35 and  references to the Advocate-General  is like as  to the Attorney-General of India.

– State Bar Council concerned  will give effect to any such order which order make under section 35 subsection (3) by disciplinary committee of the Bar Council of India.

Section 36A Changes in constitution of disciplinary committees.―

Whenever in respect of any proceedings under section 35 or section 36, a disciplinary committee of the State Bar Council or a disciplinary committee  of the Bar Council of India stop to exercise jurisdiction in thos case other  disciplinary committee of the State Bar Council or the disciplinary committee of the Bar Council of India will continue the proceedings at the stage from that stage predecessor committee left or stop the proceeding .

Section 36B Disposal of disciplinary proceedings.―

(1) Disciplinary committee of a State Bar Council will conclude the case proceedins within one year after receving the complaint under section 35.

Bar council of India  after getting proceedings from state bar council will dispose of as per section 36 sub section (2) .s

where on the commencement of the Advocates  (Amendment) Act, 1973 (60 of 1973), disciplinary proceedings  against an advocate  is pending before the disciplinary committee of a State Bar Council, will dispose of within a period of six months from the date of such commencement or within a period of one year from the date of the receipt of the complaint  , the date of initiation of the proceedings at the instance of the State Bar Council, whichever is later, failing which such proceedings shall stand transferred to the Bar Council of India for disposal.

Section 37 Appeal to the Bar Council of India.―

(1) if  person dissatisfied  by an order of the disciplinary committee of a State Bar Council made  as mentioned under section 35 , the Advocate-General of the State, within sixty days of the date of the  order to him, can  appeal to the Bar Council of  India.

(2) appeal shall be heard by the disciplinary committee of the Bar Council of India can pass such order concern with varying   punishment award by state bar council of india or as  deems fit  ,after  providing  opportunity of  being heard to dissatisfied  person disciplinary committee of the Bar Council of India will  vary decision of  disciplinary committee of the State Bar Council .

Section 38 Appeal to the Supreme Court.―

Any person dissatisfied   by an order made by the disciplinary committee of the Bar Council of India under section 36 or section 37 or the Attorney-General of India or the Advocate-General of the State concerned, as the case may be  within sixty days of the date can  appeal to the Supreme Court and the Supreme Court may pass such order  concern with  order varying the punishment awarded by the disciplinary committee of the Bar Council  of India or  as it deems fit, after  providing  opportunity of  being heard to dissatisfied  person  Supreme Court  of India will  vary decision of  disciplinary committee of the  Bar Council of India[2] .

Section 39 Application of sections 5 and 12 of Limitation Act, 1963.―

Sections 5 and 12 provision  of the Limitation Act, 1963 , will follow  to appeals under section 37 and section 38 of advocate act .

Section 40 Stay of order.―

Appeal,  under section 37 or section 38,  will  not consider  as a stay of  the order  for which against appeal made , The disciplinary committee of the Bar Council of India, The Supreme Court with  sufficient cause, direct the stay of  order  with  terms and conditions as it may deem fit.

(2) Where an application is made for stay of  order under section 37 or section 38, the disciplinary committee of the State Bar Council, or the  disciplinary committee of the Bar Council of India,  direct the stay of such order with  terms and conditions as it may deem fit.

Section 41 Alteration in roll of advocates.―

The advocate against whome order  is made   under this Chapter for reprimanding or  suspending an advocate, advocate there name should me stated in following  place .

–   in a State roll and advocate name will be struck off from state roll, advocate enrolment shall be recall to whome suspened or remove from practice and granted certificated under section 22 .

Section 42 Powers of disciplinary committee.―

Power of  disciplinary committee of a Bar Council same  as  civil court under the Code of Civil Procedure, 1908 (5 of 1908),like  summoning   and examing of any person ,production  and discovery of documents, evidence on affidavits, calling for  public record  copies from any office or court , for the examination of witnesses issuing commissions , other matter as prescribed.

-Disciplinary committee  will  have the right to require the attendance of  any presiding officer of a court except with the previous sanction of the High Court to which such  court is subordinate, officer of a revenue court except with the previous sanction of the State Government.

– All proceedings before a disciplinary committee of a Bar Council  will be  judicial  proceedings  related to  sections 193 and 228 of the Indian Penal Code (45 of 1860), disciplinary committee will be deemed to be a civil court for the purposes of sections 480, 482 and  Code of Criminal Procedure, 1898 for section of 485.

-Disciplinary committee will send to civil court , any summons or other process, for the attendance of a witness and for  the production of a document required by the committee or any commission which it desires to issue, and the civil court will  process  the summon and  commission to be issued,  enforce   process for  attendance or production before itself.

 In  the absence of the Chairman or  member of a disciplinary committee on a date of  hearing of a case  disciplinary committee will continue the proceedings on the date so fixed and no such proceedings and no order made by the disciplinary committee in  proceedings  will be invalid  by reason of the absence of the Chairman or member  on  any such date, after the presence of  Chairman and other members of the disciplinary committee   final order will be made under section (35) subsection (3).

(5) If  no final orders under  sub- section (3) of section 35 will  be made accordance with the opinion of the Chairman and the members of a disciplinary committee because of lack of  majority opinion shall be laid before the Chairman of the Bar Council concerned or if the Chairman of the Bar Council is acting as the Chairman or a member of the disciplinary committee, before the Vice-Chairman of the Bar Council, and the said Chairman or the Vice-Chairman of the Bar Council,  after such hearing as he thinks fit, shall deliver his opinion and the final order disciplinary committee will follow it  .

Section 42A Powers of Bar Council of India and other committees.― 

provisions of section 42 as  apply on disciplinary commitee of a Bar Council  ,will same applicable on the Bar Council of India, the enrolment committee, the election committee, the legal aid committee, or any other committee of a Bar Council .

Section 43 Cost of proceedings before a disciplinary committees.―

Disciplinary committee of a Bar Council will  make  order related  to  costs of any proceedings as deemd fit  and  such order will  be executable as  it is   disciplinary committee of the Bar Council of India of the Supreme Court and  the  disciplinary committee of a State Bar Council, of the High Court.

Section 44 Review of orders by disciplinary committee.―

Disciplinary committee of a Bar Council  review any order  within sixty days of the  order passed by it  and order of review of  disciplinary committee of  State Bar Council  will be effective after  approved by the Bar Council of India.

                                                                                                                                  


[1] V. Dakshinamoorthy vs The Commission Of Inquiry And Ors. on 29 August, 1979 madras high court

[2] Pandurang Dattatreya Khandekar vs The Bar Council Of Maharashtra, Bombay  SCI 1983


Spread the love