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A pleader vs TheJudges of the High Court of Madras,

AIR 1930 P.C. 144; referred to.

There is a distinction between the giving of improper legal advice


and the giving of wrong legal advice Mere negligence
unaccompanied by any moral delinquency on the part of an advocate
in the exercise of his profession does not amount to professional
misconduct. There must be proved that the advocate was guilty of
moral turpitude or that there was any moral delinquency on his part.

Pleader vs Judges Of The High Court Of ... on 17 September, 1936

Equivalent citations: 167 Ind Cas 666

Bench: Sulaiman, Bajpai

ORDER
1. This is an application for leave to appeal to His Majesty in Council from an
order of a Bench of this Court striking off the name of the applicant who is a
Pleader from the roll of the Pleaders on the ground of misconduct. Although
the Calcutta and Patna High Courts have taken a different view, it his been
the practice in this Court to treat such orders as falling under Section,
109(e), Civil Procedure Code. The case in Asharfi Lai v. Judges of Allahabad
High Court (1930) A.L.J. 134 : 122 Ind. Cas. 4 : A.I.R. 1930 P.C. 60 : 31 Cr.
L.J. 337 : 31 L.W. 298 : 34 C.W.N. 432 : 32 Bom. L.R. 556 : 7 O.W.n. 264 :
51 C.L.J. 417 : (1930) Cr. Cas. 205 : 58 M.L.J. 483 : Ind. Ral. (1930) P.C. 88
(P.C.) was a case of a Pleader who had been suspended from practice, for
four years. Leave to appeal to His Majesty in Council was allowed and No.
Objection was taken before their Lordships that the order allowing such
leave was illegal. Indeed their Lordships actually accepted the appeal and set
aside the order of (he High Court in that case. Again in T.G.A. Anandalawan
v. Judges of the Madras High Court (1930) A.L.J. 539 : 123 Ind. Cas. 184 :
A.I.R. 1930 P.C. 144 : 31 Cr. L.J. 489 : 7 O.W.n. 517 : 51 C.L.J. 418 : 58
M.L.J. 635 : 34 C.W.N. 534 : (1930) M.W.N. 300 : 32 Bom. L.R. 876 : 31
L.W. 627 : Ind. Rul. (1930) P.C. 168 (P.C.) a Vakil had been struck off the
roll of Vakils. Their Lordships accepted the appeal and set aside the order of
the High Court. The both these cases the: practitioners concerned were
governed by the Legal Practitioners Act and not the Bar Councils Act. As
regards Advocates, there have been two recent decisions of this Court that
an appeal lies: see Bahadur lal v. Judges of Allahabad High Court A.I.R. 1933
All. 18. 143 Ind. Cas. 480 : (1932) A.L.J. 864 : Ind. Rul. (1933) All. 266.
and Shiva Narain v. Judges of Allahabad High Court (1934) A.L.J. 722 : 150
Ind. Cas. 699 : A.I.R. 1934 All. 898 : 56 A 702 : 7 R.A. 11. In the latter case
it was pointed out by this High Court that the Calcutta and the Patna High
Courts had taken a contrary view, which was not followed by this Court.
Their Lordships in their judgment did not make any; adverse comment on
this. But leave under Section 109(c) cannot be granted as a matter of
courts, and the applicant, has to satisfy us that the case is otherwise a fit
one for appeal to His Majesty in Council. In Banarsi Prasad v. Kashi Kri-ihen
Narain 28 I.A. 11 : 23 All. 227. 7 Sar. 825 : 5 C.W.N. 193 : 11 M.L.J. 56 : 7
Sar. 825. (P.C.) their Lordships, after referring to Sections 595 and 600 of
that old Code, providing for, the granting of an appeal where the High Court
certified that the case, was fit for appeal otherwise, observed that it is
clearly intended to meet special cases such, for example, as those in which,
the point in dispute is not measurable by money, though it may be of great
public or private, importance. To certify that a case is of that kind, though it
is left entirely in the discretion of the Court, is a judicial process which could
not be performed without special exercise of that discretion, evinced by the
fitting certificate.
The same point was again emphasized in Radha krisan v. Rai Krishn Chand
28 I.A. 182 : 23 A 415 : 5 C.W.N. 689 : 3 Bom. L.R. 469 : 8 Sar. 114 (P.C.)
at p. 181 and it was pointed out that the prevailing impression in the Indian
High Courts that the mere existence of a substantial question of law was
sufficient to give the Court jurisdiction to give leave to appeal was a mistake,
if the amount of Rs. 10,000 or more is not in dispute, either directly or
indirectly. The point was again explained by their Lordships in Radha Krishna
Ayyar v. Swamirtatha Ayyav 48 I.A. 31 : 60 Ind. Cas. 85 : A.I.R. 1921 P.C.
25 : 19 A.L.j. 161 : 10 M.L.J. 229 : 13 L.W. 321 : (1921) M.W.N. 119 : 33
C.L.J. 277 : 25 C.W.N. 630 : 44 M. 293 : 23 Bom. L.R. 718 : 29 M.L.T 418
(p.C.) at p. 33. The requirement of Section 110 does not cover the whole
grounds of appeal, because it is plain that there may be certain cases in
which it is impossible to define in money value the exact character of the
dispute; there are questions, as for example, those relating to religious rites
and ceremonies, to caste and family rights, or such matters as the reduction
of the capital of companies as well as questions of wide public importance in
which the subject matter in dispute cannot be reduced into actual terms of
money.
2. The same principle appears to have been applied by their Lordships in
Delhi Cloth and General Mills Co. Ltd. v. Income tax Commissioner, Delhi 54
I.A. 421 : 10 Ind. Cas. 156 : A.I.R. 1927 P.C. 242 : 4 O.W.N. 1053 : 8 P.L.T.
791 : 25 A.L.J. 964 : 53 M.L.J. 819 : 47 C.L.J. 1 : 30 Bom. L.R. 60 : I.L.T. 40
Lah. 1 : 32 C.W.N. 237 : 29 P.L.R. 37 : (1928) M.W.N. 95 : 27 L.W. 179
(P.C.), where the wrods in Sub-section 2, Section 66(A), of the Indian
Income Tax Act, 1922, were textually the same as the concluding words of
Section 109(c) Civil Procedure Code. It would, therefore, seem to follow that
the certificate is not to be granted as a matter of course, but can be granted
where the case is otherwise a fit one for appeal to His Majesty in Council. We
think, that the conditions laid down by their Lordships in the first case in
Banarsi Prasad v. Kashi Kishen Narain 28 I.A. 11 : 23 All. 227, 7 Sar. 825 : 5
C.W.N. 193 : 11 M.L.J. 56 : 7 Sar. 825. (P.C.), are fulfilled in this case. This
is an appeal from; an order striking off the name of a Pleader from the roll of
Pleader, and the point in dispute is not measurable by money and it, is of
great private importance to the applicant. There are some points of law also
raised in this case. We, therefore, think that this can be treated as one of
the special class mentioned by their Lordships in their judgment We
accordingly certify under Section 109(c) that this, case is a fit one for appeal
to His Majesty in Council. We allow the applicant to furnish security by
hypothecating sufficient immovable property.

Pandurang Dattatraya Khandekar vs Bar Council Of


Maharashtra, ... on 20 October, 1983
Equivalent citations: AIR 1984 SC 110, 1984 (16) UJ 88 SC
Bench: A Sen, E Venkataramiah, R Misra

There is a world of difference between the giving of improper legal advice


and the giving of wrong legal advice. Mere negligence unaccompanied by
any moral delinquency on the part of a legal practitioner in the exercise of
his profession does not amount to professional misconduct. In re a Vakil ILR
(1925) 49 Mad. 523 Courts Trotter, C.J. followed the decision in re G. Mayor
Cooke (1889) 33 Sol. Jour. 397 and said that :

Negligence by itself is not professional misconduct; into that offence


there must enter the element of moral delinquency. Of that there is
no suggestion here, and we are therefore able to say that there is no
case to investigate, and that no reflection adverse to his professional
honour rests upon Mr. M.

From this conception of the office of an advocate it follows that the


public are entitled to receive disinterested, sincere and honest
treatment and advice from the advocates to whom they repair for
counsel and succour in their time of need; and it is for this reason
that Lord Mansfield laid down, and the Court has always insisted,
that members of the legal profession "should stand free from all
suspicion".

10. Nothing should be done by any member of the legal fraternity which
might tend to lessen in any degree the confidence of the public in the
fidelity, honesty and integrity of the profession. For an advocate to act
towards his client otherwise than with utmost good faith is unprofessional. It
is against professional etiquette for a lawyer to give that an advocate should
accept employment with such motive, or so long as his client has such
understanding of his purpose. It is professionally improper for a member of
the bar to prepare false documents or to draw pleadings knowingly that the
allegations made are untrue to his knowledge. Thus the giving of improper
legal advice may amount to professional misconduct. That however may not
be so by the giving of wrong legal advice.

11. It appears to us that there was abundant evidence upon which the
Disciplinary Committee could find the appellant and Agavane guilty of giving
wrong legal advice, but there is considerable doubt whether upon such
evidence the charge of professional misconduct can be supported. In the
instant case, it is not at all certain that it can be said with strict accuracy
that the appellant was guilty of moral turpitude or that there was any moral
delinquency on his part.
12. As to the first charge, the Disciplinary Committee has found the
appellant and Agavane to be guilty of drawing up a false affidavit to the
effect that Potdar and Smt. Dhavale had been married at Poona on January
7, 1974 according to Hindu rites although no such marriage was ever
performed. Upon the evidence on record, it is difficult to believe that Potdar
and Smt. Dhavale could be prevailed upon to swear an affidavit of the kind
unless it was prepared on their instructions or that they were induced to part
with Rs. 100/- towards the professional fee of the appellant and Agavane on
the faith of a false assurance that the affidavit would be sufficient evidence
in proof of their marriage. Potdar was an Overseer and had put in an
advertisement inviting suitable proposals for his marriage. Smt. Dhavale
held a Diploma in Education and had been working as a Teacher in a Primary
School under the Zila Parishad, Satara. She had also advertised in the
papers seeking suitable proposals for her marriage Both of them
corresponded with each other and decided to get married and for this
purpose they came to Poona on January 7, 1974 for legal advice with
respect to their marriage. Incidentally, Smt. Dhavale who is a tribal woman
claims to have got a divorce by custom prevalent among her tribe, whereas
Potdar who was married earlier according to Hindu rites presumably got his
divorce by initiating proceedings under the Hindu Marriage Act, 1955. They
both approached the appellant and Agavane and wanted their legal advice
and stated that they would like to get married and leave Poona on the same
day or, in other words, they were in a hurry to get married. Ex. C-13 which
inter alia states :

Rajasthan High Court - Jodhpur


Madhu Gupta vs State & Anr on 23 March, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR


S.B.Criminal Misc(Pet.) No. 2997/ 2016 Madhu Gupta d/o
Dr.B.L.Gupta, by caste Gupta, r/o G-155, Shastri Nagar, Jodhpur.

----Petitioner Versus

1. State of Rajasthan.

2. Ram Lal Yadav, Chief Manager,

24. In Jacob Mathew v. State of Punjab and Anr.: (2005) 6 SCC 1 this
Court laid down the standard to be applied for judging. To determine
whether the person charged has been negligent or not, he has to be judged
like an ordinary competent person exercising ordinary skill in that
profession. It is not necessary for every professional to possess the highest
level of expertise in that branch which he practices.

25. In Pandurang Dattatraya Khandekar v. Bar Council of


Maharashtra and Ors.: (1984) 2 SCC 556, this Court held that "...there is
a world of difference between the giving of improper legal advice and the
giving of wrong legal advice. Mere negligence unaccompanied by any moral
delinquency on the part of a legal practitioner in the exercise of his
profession does not amount to professional misconduct.

13. The advice rendered by the petitioner has apparently gone wrong, but
such a wrong would not entitle the respondent to prosecute a lawyer, as it
does not amount to any criminal culpability. The petitioner at the most may
be liable for gross (11 of 12) [ CRLMP-2997/2016] negligence or professional
misconduct, if it is established by the evidence, but she cannot be charged
for the offences, as alleged, alongwith the other conspirators.

15. The Hon'ble Supreme Court in Central Bureau of Investigation,


Hyderabad (supra) also observed that rendition of legal opinion cannot be
construed as an offence.

16. This Court also takes note of the fact that it is not possible for the panel
advocate to investigate the genuineness of the documents and he can only
peruse the contents and conclude whether the title was conveyed through a
document or not, which has been done in this case. It shall not be possible
for a lawyer to render professional advice, in case a wrong advice results
into a case for criminal prosecution against him, and in such circumstances,
the system of justice delivery shall suffer, as lawyer being an important
component of the justice delivery system would not be able to give his
professional advice without fear and favour.

2005 Y L R 1305
[Karachi]
Before Sarmad Jalal Osmany and Muhammad Mujeebullah Siddiqui, JJ
RAMESH M. UDESHI---Appellant
versus
THE State---Respondent
Criminal Accountability Appeal No.6 of 2000, decided on 30th December, 2004.

(a) National Accountability Ordinance (XVIII of 1999)---


----Ss. 9(a)(vi)/10---Appreciation of evidence---No mense rea was shown on the part of
accused as he had made abundantly clear in his summary that although under the rules the
land in question had to be disposed of through public auction or private negotiation, Chief
Minister could relax the rules under the law and as per past precedent could allow the
conversion at the rate of Rs.50,000 per acre, based on the legal opinion issued by the
Ministry of law---None of the prosecution witnesses had stated that the accused had
benefited personally from the conversion of the land in question in favour of co-accused,
which admittedly had since been cancelled by the Government---Accused in the
circumstances at best could be said to have not exercised his discretion in advising the Chief
Minister against the transaction---Lack of discretion or giving of wrong advice per se could
not amount to an offence under S.9(a)(vi) of the National Accountability Ordinance, 1999---
Stating incorrect provisions of law in the summary also did not constitute an offence which
might give rise to administrative action against the accused---No reasonable case having
been made out by the prosecution, accused was not bound to prove his innocence---Accused
was acquitted in circumstances.

Criminal Accountability Appeals Nos.1 and 2 of 2000, Saifuddin v. Muhammad


Ashfaque Piracha 1986 CLC 1819; Anwar Saifullah Khan v. The State PLD 2002 Lah. 458;
Tariq Javed Afridi v. The State PLD 2002 Lah. 233; Murad Ali Shah v. Government of Sindh
PLD 2002 Kar. 24; Mir Munawar Ali Talpur v. The State PLD 2003 SC 46; Ramesh Udeshi
v. The State PLD 2004 Kar. 224; Aftab Ahmed Khan Sherpao v. The State PLD 2001 Pesh.
80; Ramesh Udeshi v. The State PLD 2003 Kar. 423; Gahno v. The State PLD 1964 (W.P.)
Kar. 437; State v. Rabnawaz PLD 1974 SC 87; Crl. Misc. Application No.274 of 1998;
Abdul Haq v. Province of Sindh PLD 2000 Kar. 224; Messrs Qasimabad Enterprises v.
Province of Sindh 1997 CLC 1246; The State v. Syed Abdullah Shah and others 1998 MLD
216 and Secretary, Jaipur Development Authority v. Daulat Maljain (1997) 1 Supreme Court
Cases 35 ref.

(b) National Accountability Ordinance (XVIII of 1999)---


----S. 9(a)(vi)---Corrupt and corrupt practices---Lack of discretion or giving of wrong
advice per se cannot constitute an offence under S.9(a)(vi) of the National
Accountability Ordinance, 1999.

(c) National Accountability Ordinance (XVIII of 1999)---


---S.14(d)---Presumption against accused---Once an accused is charged under S.9(a)(vi)
of the National Accountability Ordinance, 1999, then before he is saddled with the
onerous liability of disproving the charge, which is a departure from the ordinary
rules of criminal jurisprudence, the prosecution has first to make out a reasonable case
against him as per the proviso to said subsection.
Sarat Chandra Acharya vs State Of Orissa on 3 December, 1992
Equivalent citations: 1994 CriLJ 296, 1993 I OLR 56
Author: B Hansaria
Bench: B Hansaria, B Dash

JUDGMENT B.L. Hansaria, C.J.

1. Being seized with a case in which an advocate is facing prosecution Under


Section 419/109, IPC, the quashing of which has been prayed for in this
petition, the learned single Judge desired that some issues of importance
relating to the administration of justice may be decided by a larger Bench,
and it is because of this that the matter is before us.

2. The issues involved are :

(i) Whether an advocate, while identifying a surety required for releasing an


accused on bail, acts as a lawyer ?

(ii) Whether identification by a lawyer should at all be insisted, as is required


by Form No. (M) 83-A of General Rules and Circular Orders (Criminal) ?

(iii) When can an advocate be prosecuted if it is subsequently found that a


wrong person had been identified by him ?

3. As the matter involved the entire legal profession, a notice was issued on
the Bar Council of the State which has appeared through , Shri Mukherjee
who is being assisted by Shri Haraprasad Naik of Sambalpur Bar. Shri B. H.
Mohanty states that Cuttack Bar Association has also intervened in the
matter. We have perused the affidavit filed by the Secretary of the Bar
Council and heard learned counsel appearing for the Bar Council as well as
Shri Patnaik for the petitioner and Shri Das, learned Government Advocate
for the State. The Bar Council Resolution, which is quoted at paragraph 4 of
the affidavit reads as below :

"After perusal of all tfce suggestions of various Bar Associations as


well as advocates and after thorough discussion the Bar Council is of
the view that deliberate wrong identification by an advocate may
amount to professional misconduct and also given rise to criminal
liability depending upon the facts on each case and mere wrong
identification by an advocate without anything more may not give
rise to criminal liability as per principle laid down by the Hon'ble
Supreme Court reported in AIR 1972 SC 2598."

4. The aforesaid shows that the Bar Council is not of the view that
identification by an advocate is not permissible or desirable. Indeed, the
resolution accepts that an advocate may identify, but states that it is only
"deliberate wrong identification" which may give rise to professional
misconduct or criminal liability depending upon the facts of each case.

5. It is known that a counsel performs three functions. He acts,


appears and pleads. The Bar Council of India has framed some rules
governing advocates as finding place in Part VI of the Rules, Chapter
of which deals with restrictions on senior advocates, stating, inter
alia, that a senior advocate shall not file a vakalatnama or act. The
Explanation defines the expression "To Act" to mean "to file an
appearance or any pleading or application in any Court ...... or to do
any act other than pleading required or authorised by law to be
done......". So, an advocate, who is not a senior advocate, can 'act',
which word would mean doing any act authorised by law. The
question is whether identification can be said to be an act authorised
by law. That this is so has been held in Hiralal v. Delhi
Administration, AIR 1972 SC 2598, which case dealt with the
question of committing an offence Under Section 102-B read with
Sections 419, 420, 511, IPC, and Section 467 read with Section 471,
IPC by an advocate who falsely identifies a person in the Court of
law. In the present reference we are not addressing ourselves on the
question as to whether ingredients of the aforesaid offences are
present to merit quashing, which is the prayer of the petitioner, as
that is a question which will be taken up by the learned single Judge.
As to the act of identification, it was stated in paragraph 9 of
Hiralal's case that by doing so, the advocate "did nothing beyond
what a lawyer is authorised to do in a Court of law". So, we would
hold that identification is authorised by law, and if a lawyer
identifies, he acts, which is authorised by law. This is our answer to
the first question.

6. The second question is whether identification by an advocate should be


insisted upon. Shri Mukherjee contends that none of the relevant sections of
the Code of Criminal Procedure-these being 81, 436, 437 and 438, require
identification. Our attention is also invited to Section 441 which deals with
bond of accused and sureties. We are then referred to Form No. 45 of the
Code, in which there is no mention about identification, which is enjoined by
this Court's form noted above. If this Court's form is read with Rule 72
finding place in General Rules and Circular Orders (Criminal), Vol. I, the
necessity of identification by an advocate becomes clear. Sub-rule (1) of that
rule is relevant for our purpose which reads :

"The responsibility for accepting the surety as solvent for the required
amount is primarily that of the Presiding Officer of the Court and in ordinary
cases he should discharge it himself by making such summary enquiry as in
the circumstances of the case he might think fit. This enquiry should in no
event be left to be done by the Bench Clerk or any other official of the
Court."

It is apparent that before releasing an accused on bail, who is called upon to


provide surety also, the Court has to be satisfied that the person who is
standing as a surety is acceptable. This is for good reasons, as without being
satisfied about the acceptability of the surety, if the accused persons would
be released on bail, there would be no way out to procure their presence ii
bail bond was to be not honoured, which would bring chaos in the system of
administration of justice. So the surety has to be one who is acceptable to
the Court.

7. Now, how does a Court feel satisfied about the acceptability of a surety ?
The Court, except in rare cases where a surety may be personally known to
it, has to rely on somebody to regard the surety as acceptable. Who else
then an advocate can discharge this function in our system of administration
of justice ? If the Courts were not to insist on identification by advocates, the
consequence would be, as submitted by Shri Naik, the accused persons
would not be released on bail for a long time or not released at all, which
consequence cannot be allowed to happen. It is the identification of the
surety by an advocate which assures the mind of the Court, resulting in
acceptance of the surety.

8. One of the submissions made before the learned single Judge was that to
make the surety acceptable it may be insisted by the Court that he should
file an application along with the recent photograph attested by the nearest
public official with his seal, namely, the Tahasildar, B. D. 0., Officer-in-charge
of the police station, Sarpanch, Chairman of the Municipal Council or other
responsible officers of the Government, M. L. A. etc. We do not find this
submission workable because, in such a case, the Court shall have to be
satisfied that attestation has been properly done, or it has been attested by
the correct person. In the present state of affairs prevailing in the country, it
would be too much of risk for a Court to accept the surety the moment a
photograph attested by one of the aforesaid functionaries is filed. We would
not like the Courts to lake such a risk. As presently advised, therefore, we
are of the opinion that there is no viable alternative to the identification by
an advocate, and so, there is no necessity of suggesting any modification to
Form No. (M) 83-A.

9. A further question of general importance for the legal profession may be


that under wliat circumstances an advocate identifying a surety should be
thought of for prosecution in case it is found that the identification was
wrong. As to this, we would first observe that when an advocate identifies a
surety, the Court does not question the advocate to find out, nor is it
possible to find out, whether the identification by him is correct or not. It is
for the advocate concerned to get himself satisfied as best as he can under
the circumstances whether he is identifying a correct person. It is his
responsibility and not that of the Court. As to how an advocate shall feel
satisfied in this regard is a matter on which we do not propose to say
anything as that would vary from case to case and circumstance to
circumstance. As, however, an advocate shall ultimately be convicted for
false identification only on being proved that the identification was made
attracting the required mens tea contemplated by Sections 419, 420, 511,
467 or 205 of the Penal Code, it would be desirable for the Court before
deciding to prosecute the advocate to satisfy itself, as far as possible, that
the identification by the advocate was false. This would avoid those
prosecutions which may flounder even at the threshold because of the High
Court exercising the power of quashing, which in a case of the present
nature would be permissible, if taking the allegations made on their face
value and accepting them in their entirety, would not constitute the offence
alleged, which is one of the grounds of quashing, as stated in R. P. Kapoor v.
State of Punjab, AIR 1960 SC 866, which is also the purport of Hiralal's
decision, in which case commitment of an advocate to the Sessions Court in
a case of the present nature came to be quashed, because of the absence of
the required mens tea. This would take care of unfounded prosecution of
advocates on the ground of false identification. This would help advocates to
engage themselves in such an act without inhibition which would also ensure
smooth functioning of the system. This should satisfy the mind of the Bar
Council which wants protection of its members from unwanted prosecutions
for acts done by them in due discharge of their professional work.

10. The third question posed above is not amenable to a general answer. It
would depend on the offence alleged against the advocate which would
determine whether mens tea is required, and if so, of what nature. It would
vary from case to case. We do not, therefore, propose to say anything in this
regard.

11. Let a copy of this order be forwarded to the State Bar Council and let the
purport of what has been stated above about the desirability of a preliminary
enquiry, before deciding to prosecute an advocate for false identification be
brought to the notice of all the District and Sessions Judges for information
of all Judicial Officers under them.

12. The case may now be placed before the learned single Judge for deciding
it on merits B.N. Dash, J.

Cbi, Hyderabad vs K. Narayana Rao on 21 September, 2012


Author: P.Sathasivam
Bench: P. Sathasivam, Ranjan Gogoi
REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

1 CRIMINAL APPEAL NO. 1460 OF 2012

(Arising out of S.L.P. (Crl.) No. 6975 of 2011)

Central Bureau of Investigation, Hyderabad .... Appellant(s)

Versus

K. Narayana Rao .... Respondent(s)

A lawyer does not tell his client that he shall win the case in all
circumstances. Likewise a physician would not assure the patient of full
recovery in every case. A surgeon cannot and does not guarantee that the
result of surgery would invariably be beneficial, much less to the extent of
100% for the person operated on. The only assurance which such a
professional can give or can be given by implication is that he is possessed
of the requisite skill in that branch of profession which he is practising and
while undertaking the performance of the task entrusted to him, he would be
exercising his skill with reasonable competence. This is what the person
approaching the professional can expect. Judged by this standard, a
professional may be held liable for negligence on one of the two findings,
viz., either he was not possessed of the requisite skill which he professed to
have possessed, or, he did not exercise, with reasonable competence in the
given case, the skill which he did possess.

24) In Jacob Mathew vs. State of Punjab & Anr. (2005) 6 SCC 1 this court
laid down the standard to be applied for judging. To determine whether the
person charged has been negligent or not, he has to be judged like an
ordinary competent person exercising ordinary skill in that profession. It is
not necessary for every professional to possess the highest level of expertise
in that branch which he practices.

25) In Pandurang Dattatraya Khandekar vs. Bar Council of Maharashtra &


Ors. (1984) 2 SCC 556, this Court held that there is a world of difference
between the giving of improper legal advice and the giving of wrong legal
advice. Mere negligence unaccompanied by any moral delinquency on the
part of a legal practitioner in the exercise of his profession does not amount
to professional misconduct.

26) Therefore, the liability against an opining advocate arises only when the
lawyer was an active participant in a plan to defraud the Bank. In the given
case, there is no evidence to prove that A-6 was abetting or aiding the
original conspirators.

27) However, it is beyond doubt that a lawyer owes an unremitting loyalty


to the interests of the client and it is the lawyers responsibility to act in a
manner that would best advance the interest of the client. Merely because
his opinion may not be acceptable, he cannot be mulcted with the criminal
prosecution, particularly, in the absence of tangible evidence that he
associated with other conspirators. At the most, he may be liable for gross
negligence or professional misconduct if it is established by acceptable
evidence and cannot be charged for the offence under Sections 420 and 109
of IPC along with other conspirators without proper and acceptable link
between them. It is further made clear that if there is a link or evidence to
connect him with the other conspirators for causing loss to the institution,
undoubtedly, the prosecuting authorities are entitled to proceed under
criminal prosecution. Such tangible materials are lacking in the case of the
respondent herein.

28) In the light of the above discussion and after analysing all the materials,
we are satisfied that there is no prima facie case for proceeding in respect of
the charges alleged insofar as respondent herein is concerned. We agree
with the conclusion of the High Court in quashing the criminal proceedings
and reject the stand taken by the CBI.

29) In the light of what is stated above, the appeal fails and the same is
dismissed.

Rondel v Worsely [1967] 3 WLR 1666 House of Lords

The Claimant was charged and convicted of GBH. The defendant was the
barrister who represented him at trial. The Claimant brought a negligence
action against him claiming that he had not asked all the questions he
had asked him to when cross examining witnesses and had not put all the
evidence before the court. The High Court struck out the claim as
disclosing no cause of action because barristers can not be sued by their
client for negligence or lack of skill in presenting their case in court. The
Claimant appealed and the Court of Appeal dismissed the appeal. The
Appellant appealed to the House of Lords.

Held:

Barristers are immune from negligence suits for their conduct of a case in
court.

Lord Reid gave the following reasons:

"Every counsel has a duty to his client fearlessly to raise every


issue, advance every argument, and ask every question, however
distasteful, which he thinks will help his client's case. But, as an
officer of the Court concerned in the administration of justice, he
has an overriding duty to the Court, to the standards of his
profession, and to the public, which may and often does lead to a
conflict with his client's wishes or with what the client thinks are his
personal interests. Counsel must not mislead the Court, he must
not lend himself to casting aspersions on the other party or
witnesses for which there is no sufficient basis in the information in
his possession, he must not with-hold authorities or documents
which may tell against his clients but which the law or the
standards of his profession require him to produce. And by so
acting he may well incur the displeasure or worse of his client so
that if the case is lost, his client would or might seek legal redress if
that were open to him."

NB this position of the law has since been overruled.