Supreme Court Limits Bar Council’s Review Power in Misconduct Case: Advanta India Ltd. vs. B.N. Shivanna (2018)

Introduction

Date of the Judgment: 21 February 2018
Citation: (2018) INSC 145
Judges: A.K. Sikri, J., Ashok Bhushan, J.
Can a disciplinary body revisit its own findings of fact under the guise of review powers? The Supreme Court of India addressed this critical question in a case concerning professional misconduct by an advocate. The Court examined the extent to which the Bar Council of India (BCI) can exercise its review jurisdiction, particularly when it involves overturning its own previous factual findings. This judgment clarifies that while the BCI’s review powers are broad, they cannot be used to act as an appellate authority over its own decisions.

Case Background

M/s. Advanta India Ltd., the appellant, is a company involved in the research, production, and distribution of seeds and hybrids. The respondent, B.N. Shivanna, was initially employed by the appellant as a Marketing Executive in 1998, later returning as Legal Counsel. The appellant alleged that the respondent devised a scheme to defraud them of lakhs of rupees.

The scheme began when a police constable repeatedly visited the appellant’s office, claiming to execute warrants against the company’s top executives. The respondent, acting as legal counsel, advised the appellant to file 631 criminal petitions to quash these alleged complaints. He falsely stated that each petition required a court fee of Rs. 10,000, and introduced a vendor, Ms. Gowri, for purchasing court fee stamps. The appellant paid Rs. 62,51,259 towards these fees.

The respondent also recommended three other counsels, C.C. Narayana, D. Ramesh, and Raghavendra Rao, to handle the petitions, for which the appellant paid Rs. 6,46,500 over 15 months. In addition, the respondent charged Rs. 2,12,500 as his fees. By December 2001, the appellant had spent Rs. 72,00,000 on litigation. The respondent then produced a forged High Court order stating that 318 petitions had been allowed in the appellant’s favor.

The appellant grew suspicious and consulted another advocate, Mr. B.K. Sampath Kumar, who revealed that no criminal petitions had been filed, no court fees were required, and Ms. Gowri was not a registered vendor. The High Court Registrar declared the order produced by the respondent as a forgery.

Following these revelations, the appellant filed a complaint with the State Bar Council of Karnataka, a criminal contempt case, and a civil suit for recovery of the defrauded amount.

Timeline:

Course of Proceedings

The State Bar Council referred the complaint to its Disciplinary Committee, which found the respondent guilty of misconduct and debarred him for life, removing his name from the rolls. The respondent appealed to the BCI, which upheld the findings but reduced the punishment to 18 months of debarment and a fine of Rs. 25,000.

The respondent then filed a review petition before the BCI under Section 48AA of the Advocates Act, 1961. The BCI allowed the review petition, setting aside its previous order and directing a fresh consideration of the matter. The BCI cited that the respondent was not given adequate opportunity to cross-examine PW-1 (the complainant) before the State Disciplinary Committee as the reason for allowing the review petition.

The appellant then filed Civil Appeal No. 2732 of 2012 before the Supreme Court against the order of BCI. While this appeal was pending, the BCI allowed the review petition. Consequently, the Supreme Court dismissed the appeal as infructuous, granting the appellant liberty to challenge the review order.

Legal Framework

The primary legal framework for this case is the Advocates Act, 1961. Key provisions include:

• Section 35 of the Advocates Act, 1961: This section deals with professional misconduct of an advocate. It allows the State Bar Council to take disciplinary action against an advocate found guilty of misconduct.
• Section 36B of the Advocates Act, 1961: This section specifies the time limit for the State Bar Council to dispose of a disciplinary proceeding. It stipulates that the jurisdiction of the Disciplinary Committee of the State Bar Council comes to an end on expiry of the period of one year.
• Section 44 of the Advocates Act, 1961: This section provides the Disciplinary Committee of the Bar Council of India with the powers to review its own order.
• Section 48AA of the Advocates Act, 1961: This section allows the Bar Council of India to review any order passed by it under the Act.

The Supreme Court also considered the principles of natural justice, particularly the right to a fair trial and the right to cross-examine witnesses.

Arguments

Appellant’s Submissions:

• The appellant argued that the respondent had committed gross professional misconduct by defrauding the company of a substantial amount of money.
• It was contended that the respondent fabricated stories of criminal cases and forged documents to extract money from the appellant.
• The appellant argued that the BCI’s review order was beyond the scope of its review powers, as it re-evaluated the facts already decided by the State Bar Council and the BCI itself.
• The appellant contended that the BCI had shown undue indulgence to the respondent by allowing him to take advantage of his own wrong.
• The appellant relied on the maxim *Nullus Commodum Capere Potest De Injuria Sua Propria*, meaning that a party cannot take advantage of its own wrong.

Respondent’s Submissions:

• The respondent argued that he was not given an adequate opportunity to cross-examine the complainant (PW-1) before the State Bar Council.
• He contended that the closure of the complainant’s evidence without allowing him to cross-examine violated the principles of natural justice and fair trial.
• The respondent argued that the review jurisdiction of the Disciplinary Committee of the Bar Council under the Act is wider than the review jurisdiction of a court under Section 114 of the Code of Civil Procedure read with Rule 1, Order 47 of the CPC.

Issues Framed by the Supreme Court

The Supreme Court framed the following key issue for consideration:

1. Whether the Bar Council of India was justified in exercising its review jurisdiction to revisit the findings of fact and set aside its earlier order.
2. Whether the BCI exceeded its review powers by re-evaluating the same material and arguments which were advanced earlier.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

Judgment

The Supreme Court set aside the BCI’s order dated July 11, 2015, which had allowed the review petition. The Court held that the BCI had exceeded its review jurisdiction by re-evaluating facts already decided in its earlier order. The Court emphasized that while the BCI’s review power is not confined to the narrow parameters of the Code of Civil Procedure, it cannot be extended to the extent that the reviewing authority becomes an appellate authority over its own order.

How each authority was viewed by the Court?

• O.N. Mohindroo v. District Judge, Delhi & Anr. [(1971) 3 SCC 510]*: The Court acknowledged the principle laid down in this case that the review powers of the BCI are not confined to the narrow parameters of the Code of Civil Procedure. However, the Court also clarified that this does not mean that the review power is unlimited.
• Eureka Forbes Limited v. Allahabad Bank and Ors. [(2010) 6 SCC 193]*: The Court applied the maxim *Nullus Commodum Capere Potest De Injuria Sua Propria*, holding that the BCI had shown undue indulgence to the respondent by allowing him to take advantage of his own wrong.

What weighed in the mind of the Court?

The Supreme Court’s decision was heavily influenced by the principle that a party cannot benefit from its own wrong. The Court found that the respondent had intentionally delayed the proceedings and then used this delay as a ground for review. The Court also emphasized the need to maintain the integrity of the legal profession and prevent abuse of the review process.

Logical Reasoning:

The Court considered the argument that the respondent was denied the opportunity to cross-examine PW-1, but rejected it because it was found that the respondent was intentionally delaying the proceedings. The Court also considered the wider scope of review powers of BCI but clarified that it cannot be used to act as an appellate authority over its own order.

The Court quoted the following from the judgment:

“The powers of review are not circumscribed by the Act. The analogy of the Civil Procedure Code must not be carried too far. Such powers may be exercised in a suitable case for or against an advocate even after the matter has gone through the hands of the Disciplinary Committee at some stage or even through this Court.”

“The maxim nullus commodum capere potest de injuria sua propria has a clear mandate of law that, a person who by manipulation of a process frustrates the legal rights of others, should not be permitted to take advantage of his wrong or manipulations.”

“After going through the proceedings, we are satisfied that ample opportunities were given to appellant for cross-examination of the complainant as well as tendering evidence in his favour. From the proceedings and conduct of the appellant it is revealed that he was found delaying the proceedings on one pretext or other, therefore, the learned Lower Disciplinary Committee has rightly closed the right of cross-examination and further found that inspite of providing sufficient opportunities to tender his evidence in defense – the appellant to do so.”

Key Takeaways

• The review powers of the Bar Council of India are not unlimited and cannot be used to act as an appellate authority over its own decisions.
• Disciplinary bodies cannot revisit their own findings of fact on the same material and arguments under the guise of review.
• Parties cannot take advantage of their own wrongdoings to seek a favorable outcome in disciplinary proceedings.
• The principles of natural justice must be balanced with the need to ensure that disciplinary proceedings are not unduly delayed.

Directions

The Supreme Court directed that the BCI’s order dated September 10, 2011, be revived. The Court also permitted the appellant to seek recall of the order dated September 01, 2016, passed in Civil Appeal No. 273 of 2012 and seek restoration of the said appeal for its decision on merits.

Specific Amendments Analysis

There are no specific amendments discussed in this judgment.

Development of Law

The ratio decidendi of this case is that while the Bar Council of India has broad review powers under the Advocates Act, 1961, these powers are not unlimited. The BCI cannot act as an appellate authority over its own decisions under the guise of review. This judgment clarifies the limits of the BCI’s review powers and ensures that disciplinary proceedings are conducted fairly and efficiently. There is no change in the previous position of law but the Court has clarified the scope of review powers of BCI.

Conclusion

In the case of *M/S. Advanta India Ltd. vs. B.N. Shivanna*, the Supreme Court set aside the Bar Council of India’s review order, clarifying that the BCI cannot act as an appellate authority over its own decisions under the guise of review. The Court reinstated the BCI’s original order, emphasizing that disciplinary bodies must not revisit their own findings of fact on the same material and arguments. This judgment reinforces the importance of maintaining the integrity of the legal profession and ensuring that disciplinary proceedings are conducted fairly and efficiently.