National Law Institute University
Bhopal
Professional Ethics Project
Topic: Kumari Achal Saxena Vs sudhir yadav – A Case
Study
Submitted to: Made by:
Dr. P.K. Shukla Rakesh Malviya
Assistant Professor 2016B.A.LL.B.(Hons.)45
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Contents
BACKGROUND (How matter reached to the court) –.................................................................................5
Facts of the case –.......................................................................................................................................5
STATE BAR COUNCIL (DISCIPLINARY COMMITTEE )..................................................................................6
BAR COUNCIL OF INDIA (APPELLATE AUTHORITY).....................................................................................6
SUPREME COURT OF INDIA........................................................................................................................7
CONCRETE JUDGEMENT (JUDEGEMENT IN PERSONAM) –........................................................................8
RATIO DECIDENDI (Judgement in Rem)......................................................................................................8
Conclusion...................................................................................................................................................9
Suggestions...............................................................................................................................................10
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CASE CITATION- “Kumari Achal Saxena (D) & Ors. Vs. Sudhir Yadav CIVIL
APPEAL NO. 2792 OF 2010”
MATTER BEFORE - “Supreme Court of India”
JUDGES- A.M. Khanwilkar, Dipak Mishra & Mohan M. Shantanagoudar,
SIZE OF THE BENCH- Division bench
JUDGEMENT DATE- 02/03/2017
PARTIES-
Appellant –Kumari Achal Saxena & ors.
Respondent- Sudhir Yadav
COUNCELS –
Appellant: Pawan kumar Shukla, B.k. Sinha ,Mukesh verma ,P. K. Singh, Yash Pal
Dhingra & B.k. Sinha
Respondent: Braj Kishore Mishra
ORDER RELATED TO CASE- NONE
DOCTRINE INVOLVED-DOUBLE TAXATION AVOIDENCE
PRINCIPLE INVOLVED – FORCE OF ATTRACTION PRINCIPLE
THEORIES INVOKED -NONE
RELATED PROVISION AND STATUTES-
Provision of the constitution- none
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Rules- none
Notification- none
Regulations- “the Advocates acts, 1961”
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BACKGROUND (How matter reached to the court) –
In this case the appeal filed by the appellant in the supreme court of India to set aside the
decision of appellate authority i.e. Bar council of India(BCI).
The respondent is an advocate registered under the state bar council of Uttar Pradesh (SBC). The
appellant file complaint against the respondent to the State bar council. The state bar council
gave decision against the respondent.
The respondent took appeal to the appellate authority i.e. to the bar council of India. The
appellate authority reversed the State Bar Council’s decision.
In present case the appellant filed case in the Supreme Court of India to set aside the appellate
authority’s decision
Facts of the case –
Respondent was alleged that he took original certificates, sign & Photos of the appellant
1 as he had good terms with the family of the appellant 1 so he can register her name for
employment exchange
Respondent also got the photos together with the appellant 1
Respondent threatened the appellant and her father & blackmailing them. He also
demanded 1 lac rupees. The appellant denied to give , so he forged certificate &
mentioned appellant as his wife. Also, he made criminal case against the appellant u/s
467,471,420,468&506 of IPC. He filed criminal complaint against her father & one (R.
pandey) U/S 500 for criminal defamation. In connection with that Appellant 2 was
arrested, though later got bail.
It is also alleged that before Dowry prohibition officer, the respondent on behalf of
appellant 1 fraudulently filled application(13 may 1998) & due to non-attendance of
appellant 1 , the same has been dismissed
The respondent also blackmailed respondent 2
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STATE BAR COUNCIL (DISCIPLINARY COMMITTEE )
The appellant filled complaint to the SBC’ disciplinary committee about all this against
the respondent. The committee punished him U/S 35(3)(d) of the “Advocates act,1961”
and ordered to resign his name from the enrollment of advocates on 23 Dec 2006.
Respondent challenged the decision of committee before the BCI
BAR COUNCIL OF INDIA (APPELLATE AUTHORITY)
The appeal was allowed by the BCI’s Disciplinary committee. The decision of SBC’s
disciplinary committee was set aside by the BCI’s Disciplinary committee on 21 Jan 2010
Contention of respondent –
After 1 year time period lapse, the inquiry cannot be proceeded by the Disciplinary
Committee of SBC as mentioned under section 36B of the said act.
No fair & reasonable opportunity of being heard provided
Contention of Appellant
In accordance with sec 13 of the said act , irregularities committed by the SBC can be
waved off
Decision of Appellate authority
It was found that the Disciplinary committee of SBC made false order sheet & inquiry was
conducted by more than one person. The appellant contention rejected by the SBC’s committee.
Also, ignoring gross illegality in conducting the inquiry by the committee cannot be cured by sec
13 of the act.
It was noted that appellant filed written statement in order to withdraw the complaint , even
though the committee proceeded on an inquiry. No fair and reasonable opportunity of being
heard provided to the respondent. The respondent was not given opportunity of cross-
examination of witness.
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It was further noted that respondent filed transfer application against the committee on 11 July
2006 & no order was passed on the said application
The appellate authority found that there is gross illegality committed by the SBC’s disciplinary
committee therefore the authority ordered to set aside the decision of SBC dated on 23 Dec 2006
The decision of the appellate authority was challenged by the appellant in the SC of India on 1
Nov 2010
SUPREME COURT OF INDIA
The court heard both the parties argument and affirmed the appellate authority’s decision
that the after lapse of 1 year period the SBC’s disciplinary committee cannot continue the
inquiry . The order of SBC was illegal
After the lapse of 1 year the matter should be transferred to the BCI as mentioned under
sec 36B
It is mandated by the sec36B that under sec 35 the complaint must be disposed
expeditiously & proceeding must be done & should finally concluded within 1 year by
the SBC. If SBC failed to do so then it must transfer matter to the BCI
In this case the Appellate authority was justified for allowing the appeal & for setting
aside the decision of SBC’s Disciplinary committee.
The court upheld the impugned decision of BCI
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BOOK CITED- None
ARTICLES CITED- None
FOREIGN JUDGEMENTS- None
OTHER LITERATURE CITED IN JUDGEMENT-None
CONCRETE JUDGEMENT (JUDEGEMENT IN PERSONAM) –
The appeal filed by the appellant allowed by the court. The court upheld appellate court decision
RATIO DECIDENDI (Judgement in Rem)
Under sec 36B of the “Advocate’s act 1961” the inquiry period is within 1 year by
the state bar council & after the lapse of the 1 year period, the matter shall be
transferred to the Bar council of India
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Conclusion
The case is about the sec 36 B of the “Advocates act 1961”.
The section 36B talks about disposal of disciplinary proceedings. The inquiry period for the
disciplinary matter received under sec 35 is 1 year from the date of receipt of complaint by the
state bar council .
If the period of 1 year left then the matter should be transferred to the Appellate authority i.e. Bar Council
of India.
In this case the Supreme Court of India affirmed the appellate authority’s decision that the disciplinary
committee of state bar council committed a gross illegality by not transferring the matter after lapse of 1
year period, not providing reasonable opportunity of being heard , not taking the with drawl of case
application by the complainant & not taking the respondents application to transfer the case .this illegality
cannot be cured.
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Suggestions
The following suggestion should be taken into consideration
The interpretation of the act must done liberally according to the object of the draft
makers.
Giving reasonable & fair opportunity of being heard is a principle of natural justice and
violation of that is will be grave injustice.
If the justice giving authority (here, disciplinary committee of SBC), itself violets the law
then how can you expect to follow law from the ordinary citizens.
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