CLINICAL PAPER IV – PROFESSIONAL ETHICS & PROFESSIONAL ACCOUNTING

TITLE: CASE BRIEF ON

HIKMAT ALI KHAN V. ISHWAR PRASAD

SUBMITTED BY:

Kopal Yadav

BA.LL.B SEMS X

BATCH- 2015-20

REG.NO. 15040141082

Supervisor

Prof. Abhishek Srivastava

Alliance School of Law

Alliance University, Bangalore
Date of Submission
17th January 2020
 Hikmat Ali Khan v. Ishwar Prasad & Ors.
Citation : AIR 1997 SC 864

Bench: S.C. Agrawal, Sujata V. Manohar

Introduction-

Many a nation's advances have been made by the legal profession. The tremendous services offered
worldwide by the profession have made it a noble profession. While today the title is mocked by the
degradation by the profession of ethical practice, it is essential to make a considerable effort to regain
the meaning of the now ironic title. The Advocates Act 1961 and the Rules developed by the Bar
Council of India are currently making this effort. Those guidelines set out the lawyer's intended
expectations and duties. If such principles and responsibilities are violated, the lawyer has a
professional misconduct. These misconducts are punishable by the State Bar Council in compliance
with Section 35 of the Advocates Act and by the Bar Council of India in accordance with Article 36.

Relevance-

This case stipulates that where a State Bar Council is justified in believing that every defendant in its
position has been guilty of a crime or other fault, upon receipt of the complaint or otherwise, the case
shall be referred to his disciplinary committee for disposal1. Article 35 authorizes the disciplinary
committee to reprove the defender and remove the defense counsel from exercise for a time that it
finds necessary or deletes from State roll of advocates the name of the defense counsel. Nevertheless,
it may be better to appeal to the Indian Bar Council, and later to the Supreme Court against the orders
of the Indian Bar Council, against the order from the Disciplinary Committee. Article 35 of the
Advocates Act 1961 specifically states that a lawyer cannot be penalized for both his professional
and other wrongdoing2.

Facts-

Ishwar Prasad Arya has been a lawyer in Badaun in this case. He attacked his adversary, Radhey
Shyam in Munsif's Court Room with a knife during lunch interval. A gun shot at the time of the

1
See Generally, R. Ramachandran, “Professional Ethics: Changing Profession”, Changing Ethics (Lexis Nexis
Butterworth; New Dehli:2004)
2
Advocates Act 1961, Section 35
incidence was reported to have been fired. He was tried for crimes under the I.PC in accordance with
Section 307 after an investigation and the Arms Act, Section 25.

The Civil and Sessions Judge convicted him and sentenced him to undergo Rigorous imprisonment
for 3 years for the offence under Section 307 of the Indian Penal Code and for a period of nine months
for offence under Section 25 of the Arms Act. The conviction and sentence for the offence under
Section 307, I.PC., were maintained by the High Courts but he was given benefit of doubt regarding
offence under Section 25 of the Arms Act and the conviction and sentence for the said offence were
set aside. Before he could be arrested a copy of letter purporting to have been sent by Sri L.R. Singh,
Deputy Secretary, Ministry of Home, U.P addressed to the D.M., Badaun was received in the Court
of the III Additional District and Sessions Judge, Badaun who was responsible for executing the
order of the Court. In the said letter it was stated that the governor has been pleased to suspend the
conviction of Arya under Article 161 of the Constitution within immediate effect until further order
he should remain free. On receiving the copy said letter the proceedings for his arrest were stayed.
Thereafter it was found that the letter was fraudulent and thereupon a warrant for the arrest was issued
and he was arrested and sent to Badaun Jail to undergo the imprisonment. The III Additional District
and Sessions Judge, Badaun sent a complaint containing these facts to the Chairman, Bar Council of
U.P, for taking action against the advocate under Section 35 of the Advocates Act.

Disciplinary Proceedings

Disciplinary proceedings were initiated against the Respondent by the Bar Council of U.P. and he
was found guilty of gross professional misconduct by taking the benefit himself of a forged and
fabricated document which had been prepared at his behest. The Disciplinary Committee of the Bar
Council of U.P. directed the Respondent be debarred from practising as an advocate for a period of
two years from the date of the service of the order. The Respondent filed an appeal, the said appeal
was allowed by the Disciplinary Committee of the Bar Council of India by order dated June 8, 1984
and the order of the Disciplinary Committee of the Bar Council of U.P. dated January 30, 1982 was
set aside on the view that there was no material on the basis of which it could reasonably be held that
Respondent had prepared the document which was subsequently found forged.

The Disciplinary Committee of the Bar Council of U.P. found him guilty of gross professional
misconduct by taking the benefit himself of a forged and fabricated document which had been
prepared at his behest3. The said committee debarred him from practising as an advocate for a period

3
D.C. Saxena v. Chief Justice of India, AIR 1996 SC 2481
of two years from the date of the service of the order. The advocate tiled an appeal in the Bar Council
of India against the said order of the Disciplinary Committee of the Bar Council of U.P The
Disciplinary Committee of the Bar Council of India set aside the order of the Disciplinary Committee
of the Bar Council of U.P. On the ground that there was no material on the basis of which it could
reasonably be held that the advocate had prepared the document which was subsequently found
forged.

The appellant, Hikmat Ali Khan, had also submitted a complaint against the advocate to the Secretary,
Bar Council of U.P In the complaint, it was also mentioned that the name of the said advocate is noted
as a bad character in the Register of Police Station and a number of Criminal case have been registered
against him4. It was prayed that a fresh inquiry may be made in the matter and in case the facts are
proved against him, his registration as an advocate may be cancelled since he is blot to the names of
all the advocates. On the basis of this complaint, proceedings were initiated against him by the U.P
Bar Council. In the said proceedings, the advocate appeared and filed his written statement, but
thereafter he did not appear and participate in the proceedings. The Disciplinary Committee of U. P.
Bar Council proceeded ex parte against him. The Disciplinary Committee held that it is unbecoming
of an advocate to earn such a bad reputation ln the society and he was liable to be punished and
consequently, the committee directed that he should be debarred from practising as an advocate for a
period of three years.

The advocate filed an appeal against the said order passed by the Disciplinary Committee of U.P Bar
Council in the Bar Council of India. he Disciplinary Committee of the Bar Council of India observed
that the matter had already been considered by the Disciplinary Committee of the Bar Council of
India whereby the order of U.P Bar Council suspending him from practice for three years had been
set aside and consequently the appeal was allowed and the order of the Disciplinary Committee of
the U.P. Bar Council was set aside. Feeling aggrieved by the said order passed by the Disciplinary
Committee of Bar Council of India the appellant, Hikmat Ali Khan, filed appeal in the Supreme Court.

Issues-

In this case an advocate was found guilty of an offence of attempting to commit murder and convicted
for it. His name was removed from roll of advocates as he was unworthy of remaining in the legal
profession. Section 35 of the Advocates Act provides in respect of punishment for professional or
other misconduct5.

4
Sambhu Ram Yadav v. Hanuman Das Khatry, AIR 2001 SC 2509
5
Black’s Law Dictionary 237 (9th ed. 2009).
Judgement-

The Supreme Court stating that the acts of misconduct found established were serious in nature,
outlined the options available to the Bar Council under Sub-section (3) of Section 35 of the Act.
Under this section, the Disciplinary Committee of the State Bar Council is empowered to pass an
order imposing punishment on an advocate found guilty of professional or other misconduct. Such
punishment can be a reprimand, suspension from practice for a certain period and removal of the
name of the advocate from the State roll of advocates, depending on the gravity of the misconduct
found established.

The Supreme Court held that the Disciplinary Committee of the Bar Council of India in passing its
earlier order felt that there was no material from which it could reasonably be held that the advocate
had prepared the document which was subsequently found forged and that he could be given the
benefit of doubt and consequently the order of the Disciplinary Committee of U.P Bar Council was
set aside. The said order of the Disciplinary Committee of the Bar Council of India did not have any
bearing on the conduct of the advocate which led to his conviction for the offence under Section 307
of the Indian Penal Code and sentenced to rigorous imprisonment for three years and his name being
entered as a bad character in the register of the police station and on this basis the Disciplinary
Committee of the Bar Council of U.P. had passed the order debarring him from practice as an
advocate for a period of three years.

Consequently, the Supreme Court held that the Disciplinary Committee of the Bar Council of India
was in error in setting aside the order passed by the Disciplinary Committee of the U.P Bar Council
and thus the order of the Disciplinary Committee of the Bar Council of India setting the order of the
Disciplinary Committee or the U.P Bar Council was set aside by the Supreme Court. The Supreme
Court held that his conduct was such that his name should be removed from the State roll of advocates.
The Supreme Court, thus, ordered the removal of his name from the State roll of the advocates.

Reasoning-

The punishment of removal of the name from the roll of advocates is called for where the misconduct
is such as to show that the advocate is unworthy of remaining in the profession. The Supreme Court
at this point turned its attention to s.24A of the Act which deals with disqualification from enrolment.
The Court pointed out that under Section 24A of the Act a person who is convicted of an offence
involving moral turpitude is disqualified for being admitted as an advocate on the State roll of
advocates. Drawing a parallel to the case at hand, the Supreme Court laid down that the conduct
involving conviction of an offence involving moral turpitude which would disqualify a person from
being enrolled as an advocate has to be considered a serious misconduct when found to have been
committed by a person who is enrolled as an advocate and it would call for the imposition of the
punishment of removal of the name of the advocate from the roll of advocates.

Dealing with the facts at hand the Court stated that the Bar Council had failed to appreciate the gravity
of the offence committed by the Respondent and stated that the said misconduct called for the
imposition of the punishment of removal of the name of the Respondent from the State roll of
advocates. The Supreme Court, taking the matter into its own hands, decided finally that the appeal
should be allowed, and the Respondent's name should be struck from the State roll of advocates.