SUPREME COURT OF INDIA 2011

RAJAN & OTHERS V. BAR COUNCIL OF INDIA

MEMORIAL FOR RESPONDENT

Table of Contents
1. List of ABBREVIATIONS-------------------------------------------Page 3 Page |1

2. Index of AUTHORITIES---------------------------------------------Page 5

Books and Journals----------------------------------------------------Page 5 Websites and URLs-----------------------------------------------------Page 6 List of Statutes----------------------------------------------------------Page 6 List of Cases--------------------------------------------------------------Page 7
3. Statement of Jurisdiction----------------------------------------------Page 8 4. Questions Presented----------------------------------------------------Page 9 5. Statements of Facts-----------------------------------------------------Page 10 6. Summary of Pleading--------------------------------------------------Page 14 7. Pleadings/Arguments Advanced-------------------------------------Page 16 8. Prayer---------------------------------------------------------------------Page 27

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LIST OF ABBREVIATIONS

AIR HC No. SC SCC V. Vol. Art. Ed. Para. i.e. ibid L.P.A A.A

All India Reporter High Court Number Supreme Court Supreme Court Cases Versus Volume Article Edition Paragraph id est(that means) ibidium Legal Practitioners Act Advocate Act
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C.S.O.D D.C Cr L J JT B.C.I D.S.B.C u/s Sec. I.P.C P.C.A,1988 WLR VIPs

Chief Secretary of Delhi District Court Criminal Law Journal Judgment Today Bar Council of India Delhi State Bar Concil Under Section Section Indain Penal Code Prevention Corruption Act,1988 Weekly Law Report Very Important Persons

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INDEX OF AUTHORITIES

BOOKS AND JOURNALS

1. Dr. Avtar Singh, The Principles of The Law OF Evidence, 17th Edition (2009), Central

Law Publishing
2. Prof. S,N Mishra, Indian Penal Code, 12th Edition(2004), Central Law Publishig 3. Sudipto Sarkar, V.R Manohar, law of Evidence, 17th Edititon(2010), lexis Nexis

Butterworths Wadhwa
4. Chief Justice M. Monir, The Law of Evidence, 18th Edition(2010) 5. K.I Vibhute, Criminal Law, 10th Edition(2008), Lexis Nexis Butterworths Wadhwa 6. Dr. S.P Gupta, Professinal Ethics, Accountacy for Lawyers & Bench-Bar Relations, 4th

Edition (2009) ,Central Law Publishing

7. K.D Gaur, The Indian Penal Code, 4th Edition(2004), Universal Law Publishing 8. J.J.R Upadhaya, Administrative Law, 6th Edition(2006), Universl Law Publishing 9. B.B Mitra, Codeof Criminal Procedure, 12th Edition(2003), Volume 1` Page |5

10. P Ramanatha Aiyer, Legal & Professional Ethics(Legal Ethics, Duties & Privileges of a

Lawyer), 2nd Reprint(2009), Lexis Nexis Butterworths Wadhwa 11. Judgement Today, 2011(8) 6 12. All India Repoter, Nov. 2008 Vol.95 Part 1139

Websites And URLs

1. 2. 3. 4. 5.

WWW.denition.US Legal.com WWW.indiankanoon.org WWW.buffalo.edu/law WWW.vakilno1.com WWW.ilatonline.org/ judgement_SupremeCourt.ptp

6. WWW.manupatra.com

Statutes
1. 2. 3. 4. Evidence Act, 1872 Advocate Act, 1961 Indian Penal Code, 1860 Criminal Procedure Code, 1973

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5. 6. 7.

Legal Practitioners Act, 1879 Prevention of Corruption Act, 1947 Prevention of Corruption Act, 1988

LIST OF CASES

1. In the case of K.V. Narsingha Rao 2. In the case of Re Tulsidas Amanmal 3. In the case of Re M, n Advocate 4. In the case of Re A Solicitor ex parte the Law Society

5. Chandra Shekhar Soni v. Bar Council of Rajasthan 6. 7. 8. 9. King Emperor v. Guru Prasad Nathulal v. State of Madhya Pradesh Sweet v. Parsley State of Gujarat v. D. Parade

10. In the case of Ebrahim M.C. Md 11. Jeremiah v. Vas 12. In Ram Ch v. R 13. Harbhajan v. S 14. Sangappa v. Shivamurthiswami Page |7

15. Narayan v.Radhagobinda 16. Nageshwarrao v. S

17. P.Pushpa Leela v. Bar Council of Andra Pradesh

18. In the case of Re Tulsidas Amarlal Karnanmi

STATEMENT OF JURISDICTION

To, The Supreme Court of India,

IT IS MOST RESPECTFULLY SHOWETH1. It is most respectfully submitted to the Honble Court that this court has jurisdiction to hear this appeal under Section 38 of The Advocates Act, 1961.

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Date:

( Counsel for Respondent )

QUESTIONS PRESENTED

1. Whether Rajan and Subhash are guilty of professional misconduct or not? 2. Whether Mens Rea is required to constitute the offence of professional misconduct or not? 3. Whether any newspaper report can be relied upon for filing a petition or not? 4. Whether the judgement awarded by The Delhi State Bar Council and confirmed by The Bar Council of India is sustainable or not?

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STATEMENT OF FACTS

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1.

Rajan one of the members of the Delhi Bar practicing at Patiala House was very disturbed by the daily reports of corruption in the judiciary.

2.

Rajan decided to expose the problem of corruption in the judiciary .

3.

To expose the said problem Rajan approached Subhash who was his friend practicing at Tis Hazari court.

4.

Subhash told him that courts at Tis Hazari are also facing the same evil and stated that if one can afford to pay Rs 5000/- he can get arrest warrant against any body.

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11.

Rajan was suspended from practice for 4 years while Subhash was suspended for 2 years.

12.

Delhi State Bar Council could not complete the proceedings within the prescribed time by The Advocates Act, 1961 and accordingly the proceedings were transferred to the Bar Council Of India.

13.

B.C.I. held Subhash and Rajan guilty of professional misconduct.

14.

Both Subhash and Rajan preferred appeal before the Supreme Court of India against the said judgement awarded by B.C.I.

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SUMMARY OF PLEADINGS

1. Whether Rajan and Subhash are guilty of professional misconduct or not?

The term, misconduct is sufficiently wide expression. It is not necessary that it should involve moral turpitude. Any conduct which in any way renders a man unfit for the exercise of his profession or is likely to hamper or embarrass the administration of justice by superior court or any of the courts subordinate thereto, may be considered to be misconduct calling for disciplinary action. Therefore the appellants cannot defend themselves by taking the plea that their act did not involve moral turpitude and hence are guilty of professional misconduct.

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2. Whether Mens Rea is required to constitute the offence of professional misconduct or not? The necessity of mens rea has been dispensed with in respect of social or public welfare legislations. All these laws have been enacted for the larger good of the society. Insisting upon the existence of mens rea to punish persons for violation of these enactments, may frustrate the purpose of the Acts and the objects for which they have been enacted.15 Therefore a person cannot always escape his liability merely by saying that he did not have a guilty mind when he committed the act. The offence of Bribery has been clearly defined in many statutes and there is no other motive behind taking bribe other than personal gain or benefit.

3.Whether any newspaper report can be relied upon for filing a petition or not? The report of a speech even though not fully reported appearing in a newspaper can be relied upon especially when the maker of the speech has admitted that the reporters version does, more or less, tally with the views expressed by him in the meeting.

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4.Whether the judgment awarded by The Delhi State Bar Council and confirmed by The Bar Council of India is sustainable or not? It has always been the prerogative of the legislature to make laws, which includes obviously the power to define what constitutes a crime. It can decide what are the elements of a particular offence. In doing so, the legislature is well within its power to legislate that in respect of a particular offence, the existence of mens rea is not an essential requirement. Therefore, the appellants cannot escape liability by taking the plea that they did not have a guilty mind which is the requirement of mens rea.

PLEADINGS/ARGUMENTS ADVANCED

1. Whether Rajan and Subhash are guilty of professional misconduct or not?

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1.1 It is most humbly submitted to the Honble court that misconduct usually implies an act done

willfully with a wrong intention and as applied to professional people it includes unprofessional acts even though such acts are not inherently wrongful. Sec. 13 of Legal Practitioners Act, 1879,1 has classified misconduct of lawyers under six headings, namely:-

(a) Pleader who takes instructions in any case except from the party on whose behalf he is retained or some person who is recognized agent of such party, or some servant, relative or friend authorized by the party to give such instructions.

(b) Pleader who is guilty of fraudulent or grossly improper conduct in the discharge of his professional duty.

(c) Pleader who tenders or gives consent to the retention out of any fee paid or payable to him for his services of any gratification for procuring or having procured the employment in any legal business of himself or any other pleader.

(d) Pleader who directly or indirectly procures or attempts to procure the employment of

himself or such pleader, or mukhtar through by the intervention, of any person to whom any remuneration for obtaining such employment has been given by him, or agreed or promised to be so given.

(e) Pleader who accepts any employment in any legal business through a person who has been proclaimed as a tout under sec 36.

(f) Pleader who is guilty of any other reasonable cause.

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Since the appellants have committed a grossly improper conduct in the discharge of their professional duty by getting arrest warrants issued through bribing the judicial officers therefore they are guilty of the offence of professional misconduct.

___________________________ 1. Legal Practitioners Act,1879

In the case of K.V. Narsingha Rao,2 it has been held that professional misconduct means Conduct which would reasonably be regarded as disgraceful or dishonourable by solicitors of good repute and competency. Mere negligence, even of serious nature, will not suffice. Since the conduct of appellants is disgraceful and dishonourable as well therefore they are guilty of the offence of professional misconduct.
1.2

In the case of Re Tulsidas Amanmal,3 it has been held by Bombay H.C that the term, misconduct is sufficiently wide expression. It is not necessary that it should involve moral turpitude. Any conduct which in any way renders a man unfit for the exercise of his profession or is likely to hamper or embarrass the administration of justice by superior court or any of the courts subordinate thereto, may be considered to be misconduct calling for disciplinary action. Therefore the appellants cannot defend themselves by taking the plea that their act did not involve moral turpitude and hence are guilty of professional misconduct.
1.3

It is further submitted that in Re M, n Advocate,4 the S.C has held that when dealing with the cases of professional misconduct, the court is not concerned with the ordinary legal right, but with the special and rigid rules of professional conduct expected of and applied to a specially privileged class of persons who, because of their privileged status, are subject to certain disabilities which do not attach even to them in non professional character. He is bound to conduct himself in a manner befitting the high and honourable profession to whose privileges he has so long been admitted.
1.4

In our case the appellants were also expected to follow the rigid and special rules of professional conduct but they did not. Moreover they were subject to certain disabilities because of their privileged status which do not attach to them in non professional character. They were bound to conduct themselves in a manner befitting the high and honourable profession to whose privileges they have so long been admitted. Therefore they are guilty of professional misconduct.

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In Re A Solicitor ex parte the Law Society, 5 the Kings Bench had defined the term, professional misconduct as follows; If it is shown that an advocate in pursuit of his profession has done something with
1.5

_______________________ 2. AIR 1959 AP.593. 3. AIR 1941 Bombay 228. 4. AIR 1957 SC 250. 5. (1912) 1 KB 302.

regard to it, which would be reasonably regarded as disgraceful or dishonourable by his professional brethern of good repute and competency, then it is open to say that he is guilty of professional misconduct. Since the conduct of appellants is disgraceful and dishonourable which has brought disrepute to their legal profession therefore they are guilty of the offence of professional misconduct.Moreover they are not competent to misuse their powers provided to them by their profession. 1.6 In Chandra Shekhar Soni v. Bar Council of Rajasthan,6 the S.C has held that offering of bribe or giving bribe or taking money from the client for the purpose of giving bribe to the judge, amounts to professional misconduct of a lawyer. In our case Rajan as a client offered a bribe of Rs.5000 to Subhash for getting issued arrest warrant against the Chief Secretary of Delhi. On the other hand, Subhash who was a practicing lawyer took a sum of Rs.5000 as bribe from Raman for getting issued the above mentioned arrest warrant misusing his profession. The above stated case clearly supports our argument and clearly states that Subhash has anyhow misused his privileged status and has managed to get the arrest warrant issued. 1.7 It is further submitted to the Honble Court that in the matter of P,7 the S.C has held that an advocate may be punished not only when he is guilty of professional misconduct but also if he is guilty of another misconduct which may not be directly concerned with the professional activity as such, may nevertheless be of such dishonourable or infamous character as to invite the punishment due to professional misconduct. Explanation to the above argument is that, even if Subhash tries to take the plea that he did not receive any kind of gratification from Rajan to forward it to any of the judicial officers to get the arrest warrant issued but he cannot deny the fact that he took an amount of Rs.5000 from Rajan for the purpose of getting the arrest warrant issued. Further if he did not give bribe to any of the judicial officers then how did he manage to get the arrest warrant issued
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which was even being blank in coloumns duly stamped and signed by four different judicial officers of District Court. This means that both the appellants were either directly or indirectly involved in the offence of bribery and as such they are liable to be held guilty of professional misconduct. From the above discussed case it can be concluded that they have abused the professional ethics of a lawyer and disciplinary action against both of them is sustainable __________________________ 6. AIR 1983 SC 1012. 7. AIR 1963 SC 1313. 1.8 In King Emperor v. Guru Prasad,8 Patna H.C has observed that it is the duty of the court not only to protect the members of the public against disreputable members of the profession, but it is also ones duty to protect the profession itself against the loss of reputation brought upon it by the conduct of such members. Proper professional conduct is not a mere matter of compliance with technical rules. It is one of which everyone who aspires to be called a gentleman should have an instinctive appreciation.9 Taking disciplinary operation against a pleader is based upon the principle that the court deems him unworthy of its confidence and unfit for his place. It is not by way of punishment.10 In our case the appellants Raman and Subhash have done such an act which has bring disrepute to their legal profession and therefore they are absolutely liable to be held guilty of professional misconduct.

1.9 According to one of the rules of The State Bar Council Rules Misconduct itself is a sufficiently wide expression; it is not necessary or instance that it should involve moral turpitude. The court has a right to expect a higher standard of loyalty to the court under cooperation from those who practice profession of law. Any conduct which in any way renders a man unfit for the exercise of his profession or is or any of the courts subordinate thereto may be considered to be misconduct calling for disciplinary action.11 The above argument leaves no doubt regarding the necessity of moral turpitude for constituting the offence of professional misconduct. It makes it clear that involvement of moral turpitude is not necessary to constitute the offence of professional misconduct. It is also clear that the court expects a higher standard of loyalty to the court under co-operation from those who practice the profession of law. The appellants did not show loyalty towards the court as well as their profession and therefore they cannot escape liability on the ground of absence of moral turpitude.

__________________________
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8. AIR 1934 Patna 142. 9. S.P.A. Pleader, AIR 1934 Patna 352. 10. Re G. Pleader, AIR 1933 Sind 65. 11. In re, Tulsidas Amarlal Karnanmi, AIR 1941 Bom 228: ILR 1941 Bom 548: 1951 C 359: 43 Bom LR 250: 42 Cr Lj 723. 1.10 It has been mentioned in the S.B.C.R. that professional misconduct authorizing suspension or disbarment is not confined to misconduct in the attorneys relation to his client, but includes as well misconduct towards the court or a judge in or out of court.12 so is the deliberate disobedience of a mandate or order of court.13 All the above arguments supports the fact that both the appellants namely Rajan and Subhash are guilty of the offence of professional misconduct.

2. Whether Mens Rea is required to constitute the offence of professional misconduct or not?

2.1 It is most respectfully submitted to the Honble Court that mens rea as an essential element or ingredient of crime, though an universally accepted principle, is not without limitations. In the last few decades, an entire range of social or public welfare legislation have been conceived in such a manner that the law makes the mere omission or commission of acts punishable. In other words, no mens rea or legal fault is required for imposing criminal liability.14

2.2 The necessity of mens rea has been dispensed with in respect of social or public welfare legislations. All these laws have been enacted for the larger good of the society. Insisting upon the existence of mens rea to punish persons for violation of these enactments, may frustrate the purpose of the Acts and the objects for which they have been enacted. 15 Therefore a person cannot always escape his liability merely by saying that he did not have a guilty mind when he committed the act. The offence of Bribery has been clearly defined in many statutes and there is no other motive behind taking bribe other than personal gain or benefit.

____________________________ 12. U.s.-In re, Ades, (D.C Md.) 6 F. Supp. 467. Ala.-In re, Mitchell, 71 So. 467, 196 ala. 430: 6 CJ, p.594, note 89.

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13. In re, Gluck, 243 NYS 334: 229 App div 490: re, Reinhardi, 162 NYS 524: 175 App 843. 14. KL Vibhute, Criminal Law,2008 Edition, p.69. 15. Ibid, p. 71, para 1.

div

2.3 Moreover I.P.C deals with traditional common law offences that deal with offences against the person, property, state and public morals. All these offences consist of specific acts of aggression that have been recognized as crimes per se or mala in se. But these public welfare offences are creations of the statutes. The purpose of these acts is regulatory. Imposing liability is merely a mode of enforcing the regulations.16

2.4 Courts have also justified the non-requirement of mens rea on the grounds that many of these Acts impose only payment of fines as punishment or even if imprisonment is provided, very rarely do courts award it. Moreover, the conviction for committing those public welfare offences does not attach to itself the same kind of social stigma and damage to reputation that for example, a conviction under I.P.C. would attract.17

2.5 It is further submitted that it has always been the prerogative of the legislature to make laws, which includes obviously the power to define what constitutes a crime. It can decide what are the elements of a particular offence. In doing so, the legislature is well within its power to legislate that in respect of a particular offence, the existence of mens rea is not an essential requirement.18

2.6 In most of the public welfare statutes, nowhere is it stated that mens rea is an essential element of the offence concerned. Nor is it stated that mens rea is an essential ingredient of crime. This silence has left the field wide open for judicial interpretations. So, the creation of judge made law has not been without its share of confusion and contradictions.19

2.7 It is further submitted that courts have held that mens rea, as an essential element of crime, is so much an integral part of the definition of crime itself that it needs no specific mention. A court has to presume its requirement for imposing criminal liability, unless a statute,

_____________________________ 16. KL Vibhute, Criminal Law,2008 Edition, p. 71.

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17. Ibid, para 3. 18. Ibid, para 5. 19. Ibid, para 6

expressly or by necessary implication, excludes mens rea. Its exclusion cannot be inferred simply because a statute intends to combat a grave social evil or to attain socio-economic welfare.20

2.8 In Nathulal v. State of Madhya Pradesh,21 S.C held that: Mens Rea is an essential element of a criminal offence. .. [U]nless the statute expressly or by necessary implication excluded mens rea. The mere fact that the object of the statute is to promote welfare activities or to eradicate a grave social evil is by itself not decisive of the question whether the element of guilty mind is excluded from the ingredients of an offence. Mens rea by necessary implication may be excluded from a statute only where it is absolutely clear that the implementation of the object of the statute would otherwise be defeated.

2.9 In the case of Sweet v. Parsley,22 it was observed that where an offence is created by some statute, the language of the statute should be read with this rebuttable presumption that the common law doctrine that there can be no crime without mens rea, has not been dispensed with by the statute concerned.

2.10 In the case of State of Gujarat v. D. Parade,23 it has been held that where an offence is created by statute, however comprehensive and unqualified the language of the statute, it is usually understood as silently requiring that the element of mens rea should be imported into the definition of crime unless a contrary intention is expressed or implied. Therefore all the above arguments show that the appellants Rajan and Subhash connot defend themselves against the charge of professional misconduct by showing the absence of mens rea in offence committed by them.

___________________________ 20. Ibid, para 7. 21. AIR 1966 SC 43, para 4.

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22. (1969) 2 W.L.R. 470 (H.L.). 23. 1971 Cri. L.J. 760 at p. 762

3. Whether any newspaper report can be relied upon for filing a petition or not?

3.1 It is most humbly submitted to the Honble Court that in Ebrahim M.C. Md,24 it has been held by the Honble S.C that the report of a speech even though not fully reported appearing in a newspaper can be relied upon especially when the maker of the speech has admitted that the reporters version does, more or less, tally with the views expressed by him in the meeting. In our case the appellants Rajan and Subhash themselves admitted in the newspaper report that they have managed to get the arrest warrants issued by bribing the judicial officers which amounts to their admission and therefore newspaper reports can be relied upon as evidence for filing petition against them.

3.2 Section 81 of Evidence Act, 1872 says that the court shall presume the genuineness of any document purporting to be the London Gazette or25[any Official Gazette, or the Government Gazette] of any colony, dependency or possession of the British Crown, or to be a newspaper or journal, or to be copy of private Act of Parliament26[ of the United Kingdom] printed by the Queens Printer, and of every document purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced by proper custody. In Jeremiah v. Vas,27 it was held that if a news was printed and published by the person by whom it purports to be cannot come under the presumption of Sec. 81 of Evidence Act, 1872. In the present case the appellants themselves approached the press for publishing a newspaper report for highlighting all the events along with the arrest warrants. Therefore it is a sufficient evidence and as such the reports published in the newspaper can be relied upon. Accordingly, the petition filed by Krishan against the appellants in the Delhi State Bar Council is maintainable. 3.3 In Ram Ch v. R,28 it has been held that whether or not any newspaper report can be relied upon as on evidence depends upon the genuine-ness of the specimen of newspaper. In our case there is no question as to the genuine-ness of the specimen of newspaper because the newspaper reports on which Krishan has relied were published by the appellants __________________________ 24. A 1980 SC 354.
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25. Substituted by AO 1937. 26. Inserted in India by AO 1950 and in Pakistan by Ord 1 of 1961. 27. 36 M 457 : 12 IC 961 : 2 MWN 576. 28. A 1930 L 371. themselves.

3.4 In the cases of Harbhajan v. S,29 Sangappa v. Shivamurthiswami,30 Narayan v. Radhagobinda,31 Nageshwarrao v. S,32 it has been held that the statement of a fact in a newspaper is merely hearsay and is inadmissible in the absence of the maker of the statement deposing to have perceived the fact reported. But if the maker of the statement is present and personally admits to it then the above presumption is rebutted. In the case before the court the makers of the statement namely Rajan and Subhash are present and are giving assent to the publication made by them in the newspaper. All the above arguments are supported by a number of cases which proves that the newspaper report published by the appellants in The Hindustan Times and The times of India can be relied upon and therefore the petition against the appellants filed by Krishan in Delhi State Bar Council is absolutely maintainable.

4. Whether the judgement awarded by The Delhi State Bar Council and confirmed by The Bar Council of India is sustainable or not?

4.1 It is most humbly submitted to the Honble Court that according to Section 35 of The Advocate Act,1961: (1) Where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee.[(1A) The State Bar Council may, either of own motion or on application made to it by any person interested, withdraw a proceeding pending before its disciplinary committee and direct the inquiry to be made by any other disciplinary committee of that State Bar Council]

__________________________

29. A 1961 Pu 215.

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30. A 1961 My 106. 31. A 1971 C 53. 32. A 1959 SC 1376. (2) The disciplinary committee of a State Bar Council [***]33 shall fix a date for the hearing of the case and shall cause a notice thereof to be given to the advocate concerned and to the Advocate-General of the state. (3) The disciplinary committee of a state Bar Council after giving the advocate concerned and the Advocate-General an opportunity of being heard, may make any of the following orders, namely:(a) Dismiss the complaint or,where the proccedings were initiated at the instance at the State Bar Council, direct that the proceedings be filed (b) Reprimand the advocate (c) Suspend the advocate from practice for such period as it may deem fit; (d) Remove the name of the advocate from the State roll of advocates. (4) Where an advocate is suspended from practice under clause (c) of sub-section (3), he shall, during the period of suspension, be debarred from practicing in any court or before any authority or person in India. (5) Where any notice is issued to the Advocate-General under sub-section(2), the AdvocateGeneral may appear before the disciplinary committee of the State Bar Council either in person or through any advocate appearing on his behalf. In our case, firstly complaint was received by Delhi Bar State Council which was made by Krishnan. Secondly D.B.S.C had a reason to believe that the appellants were guilty of professional misconduct because the newspaper report whose publication was made by the appellants read that warrants were issued by bribing the judicial officers. Accordingly, the Disciplinary Committee is empowered to suspend the appellants under sec [35(3)(c)] of Advocates Act, 1961.

4.2 According to sub-section (1-A) of section 35 of the Advocate Act, 1961, the State Bar Council may, either of its own accord or on the application of a third person, initiate proceedings in the matter of misconduct of the advocates on its roll,33. In this way, it is clear that Bar Council may initiate cases of misconduct of an advocate suo motu,34. The third person mentioned in the above statement is not specifically defined. Therefore, it may be any person and as such Krishan falls under this category. Accordingly, the petition filed by him in the D.S.B.C against the appellants is maintainable. _____________________________
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33. The words , if it does not summarily reject the complaint, omitted by Act 60 of 1973, Sec. 24, (w.e.f. 31-1-1974). 34. P.Pushpa Leela v. Bar Council of Andra Pradesh, AIR 1999 A.P.88. 4.3 It is further submitted that it has always been the prerogative of the legislature to make laws, which includes obviously the power to define what constitutes a crime. It can decide what are the elements of a particular offence. In doing so, the legislature is well within its power to legislate that in respect of a particular offence, the existence of mens rea is not an essential requirement,35 Therefore, the appellants cannot escape liability by taking the plea that they did not have a guilty mind which is the requirement of mens rea.

4.4 Misconduct itself is a sufficiently wide expression; it is not necessary or instance that it should involve moral turpitude. The court has a right to expect a higher standard of loyalty to the court under co-operation from those who practice profession of law. Any conduct which in any way renders a man unfit for the exercise of his profession or is or any of the courts subordinate thereto may be considered to be misconduct calling for disciplinary action,36 Therefore, even if the appellants take the defence of absence of moral turpitude in their act they cannot escape liability.

4.5 Further it is submitted that if Subhash defends himself by stating that he has taken an amount of Rs.5000/- from Rajan as his fee then this statement is not justifiable because if he had not taken the said amount as a bribe and had not forwarded it to the judicial officers with an intent to get the arrest warrants issued then why would the four different judicial officers of the District Court who signed the arrest warrants do that? The above argument clearly proves that both Rajan and Subhash are guilty of the offence of bribery on the account of which they are held liable of professional misconduct. Further it is concluded that the judgment awarded by the D.S.B.C against the appellants and confirmed by the B.C.I is sustainable.

____________________________ 35. KL Vibhute, Criminal Law,2008 Edition, p. 71.

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36. In re, Tulsidas Amarlal Karnanmi, AIR 1941 Bom 228: ILR 1941 Bom 548: 1951 C 359: 43 Bom LR 250: 42 Cr Lj 723.

PRAYER

In the light of the issues raised and the arguments advanced, the Appellant prays the Honble Court:

1. To dismiss the appeal of Rajan and Subhash with cost. 2. To affirm the punishment awarded by D.S.B.C. and confirmed by B.C.I.

Date:

(Counsel on behalf of the Respondent)

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