IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 18TH AUGUST 2009 / 27TH SRAVANA 1931 WP(C).No. 29471 of 2008(H) -------------------------- PETITIONER(S): --------------- G.BHAGAVAT SINGH, SAROJA GANGA, NEDUNGOLAM P.O., KOLLAM DISTRICT. BY ADV. SRI.G.BHAGAVAT SINGH(PARTY IN PERSON) RESPONDENT(S): --------------- 1. BAR COUNCIL OF KERALA, REP. BY ITS SECRETARY, BAR COUNCIL BILDING, HIGH COURT OF KERLA, ERNAKULAM. 2. SUSEELA, W/O VIJAYAN,SANJAY BHAVAN, NEDUNGOLAM P.O.,KOLLAM DISTRICT. ADV. MR.C.UNNIKRISHNAN (KOLLAM) FOR R2 MR.GEORGE THOMAS (MEVADA) FOR R1 MR.MANU GEORGE KURUVILLA FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/08/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 29471 of 2008(H) APPENDIX PETITIONER'S EXHIBITS: Ext.P1 - PHOTOCOPY OF THE COMPLAINT DATED 15.02.2005 ALONG WITH THE COVERING LETTERS Ext.P2 - PHOTOCOPY OF REMARKS DATED 23.6.2005 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. Ext.P3 - PHOTOCOPY OF THE NOTICE RECEIVED by the WIFE OF THE PETITIONER FROM THE 1ST RESPONDENT IN D.C. ENQUIRY NO. 3/08 DATED 12.2.2008. Ext.P4 - PHOTOCOPY OF THE STATEMENT OF DEFENSE DATED 07.03.2008 FILED BY THE PETITIONER. Ext.P5 - PHOTOCOPY OF THE COVERING LETTER DATED 31.7.1999 Ext.P5(a) - PHOTOCOPY OF T.P. ACCOUNT OF NARAYANAN VIJAYAN Ext.P5(b) - PHOTOCOPY OF T.P. ACCOUNT OF THE 2ND RESPONDENT. Ext.P5(c) - PHOTOCOPY OF APPLICATION FOR EFFECTING MUTATION DATED 22.7.1996 FILED BY THE HUSBAND OF THE 2ND RESPONDENT. Ext.P5(d) - PHOTOCOPY OF THE STATEMENT GIVEN BY THE HUSBAND OF THE 2ND RESPONDENT DATED 22.7.1996. Ext.P5(e) - PHOTOCOPY OF THE FORM A PREPARED BY THE VILLAGE OFFICER. Ext.P5(f) - PHOTOCOPY OF THE SETTLEMENT DEED NO. 1079 OF 1989 DATED 18.3.1980 IN FAVOUR OF THE 2ND RESPONDENT. Ext.P6 - PHOTOCOPY OF THE REPLICATION DATED 09.05.2008 FILED BY THE 2ND RESPONDENT AND OTHER COMPLAINANTS. Ext.P7 - PHOTOCOPY OF THE ORDER PASSED BY THE DC NO.V OF THE 1ST RESPONDENT IN D.C. CASE NO.3 OF 2008 DATED 09.08.2008. Ext.P8 - PHOTOCOPY OF THE MEMO OF CHARGES FRAMED BY THE DISCIPLINARY COMMITTEE IN D.C. CASE NO. 3 OF 2008 DATED 09.08.2008. Ext.P9 - COPY OF THE LOAN APPLICATION ALONG WITH THE DOCUMENTS FILED BY THE 2ND RESPONDENT BEFORE THE SNVRC BANK PARAVOOR. Ext.P10 - COPY OF THE FIRST INFORMATION REPORT FILED BY THE PARAVOOR POLICE BEFORE THE SUB DIVISIONAL MAGISTRATE COURT, KOLLAM. Ext.P11 - COPY OF THE AFFIDAVIT FILED BY THE C.I.OF POLICE PARAVOOR IN C.C.C. NO. 212 OF 1997 BEFORE THIS COURT DATED 03.07.1997. Ext.P12 - COPY OF THE COMPLAINT DATED 30.7.2008 FILED BY THE 2ND RESPONDENT BEFORE THE SI OF POLICE, PARAVUR. Ext.P13 - COPY OF THE COMPLAINT NUMBERED AS CRL. MP NO. 6882 OF 2008 FILED BY THE 2ND RESPONDENT BEFORE THE MUNSIFF MAGISTRATE COURT, PARAVUR. WP(C).No. 29471 of 2008(H) Ext.P14 - COPY OF THE PETITION DATED 04.10.2008 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. Ext.P15 - COPY OF THE COMMUNICATION DATED 14.01.09 ISSUED BY THE ST RESPONDENT. Ext.P16 - COPY OF THE DECREE IN O.S. NO.109 OF 2005 PASSED BY THE MUNSIFF'S COURT, PARAVUR DATED 31.01.2009. Ext.P17 - COPY OF THE REPRESENTATION DATED 04.11.2008 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. Ext.P18 - COPY OF THE REPLY TO EXHIBIT.P17 DATED 11.11.08 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. Ext.P19 - COPY OF THE REPRESENTATION DATED 04.12.2008 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. RESPONDENTS' EXHIBITS: Ext.R2(a) - TRUE COPY OF THE PROOF AFFIDAVIT FILED BY THE 2ND RESPONDENT IN THE W.P. BEFORE THE BAR COUNCIL. Ext.R2(b) TRUE COPY OF THE JUDGMENT IN CRIMINAL M.C. NO. 4021 OF 2008 OF THIS COURT. // TRUE COPY // PA TO JUDGE rhs S. SIRI JAGAN, J ............................................... W.P(C) No. 29471 of 2008 ................................................. Dated this the 18th day of August, 2009 J U D G M E N T The petitioner is an advocate practicing in this court. He is aggrieved by the action of the 1st respondent Bar Council of Kerala in taking cognizance of a complaint filed by the 2nd respondent against him and initiating further proceedings under Section 35 of the Advocates Act, 1961 for punishing him for misconduct. According to him, Ext.P1 complaint filed by the 2nd respondent, based on which Exts.P7 and P8 proceedings have now been initiated against the petitioner, does not disclose any misconduct whatsoever against the petitioner which authorises the 1st respondent to take further action in the matter. He therefore seeks the following reliefs: “a) Call the entire records leading upto Exhibit P7 & P8 from the 1st respondent and quash the entire proceedings pursuant to Exhibit P1 complaint and also quash Exhibit P1; b) Declare that the entire proceedings on Exhibit P1 are duet to personal bias, ill-motivated and are unsustainable; c) Stay all further proceedings in Exhibit P1 and DC Enquiry No.3 of 2008; W.P(C) No. 29471 of 2008 -2- 2. Both the respondents have filed a counter affidavit. According to them, the writ petition is premature. The disciplinary committee of the Bar Council of Kerala has only decided to proceed further in the matter based on Ext.P1 complaint. According to them, it would be open to the petitioner to file objections and prove his case. 3. I have considered the rival contention in detail. 4. A complaint against an advocate alleging misconduct on his part itself would cause very serious damage to his reputation. It is all the more so when the Bar Council takes cognizance of the complaint. Therefore according to me, before the Bar Council decides to take action, they must be completely satisfied that the complaint discloses an act of misconduct on the part of the advocate. When this court can entertain writ petitions and criminal M.Cs under section 482 of the Code of Criminal Procedure for quashing a criminal complaint on the ground that the complaint does not disclose an offence, I do not find any reason why this court cannot examine whether in a petition under the Advocates Act, the complaint received by the Bar Council discloses a misconduct, on the basis of which the Bar Council can initiate action under Section 35 of the Advocates W.P(C) No. 29471 of 2008 -3- Act. 5. Ext.P1 is the complaint filed by the 2nd respondent. In that the 2nd respondent has no case that the petitioner and the 2nd respondent had an advocate-client clear relationship at any time. The allegation in Ext.P1 is that the petitioner, misusing his position as an advocate has filed numerous complaints against the 2nd respondent and her family which amounts to misconduct. Certainly as the learned counsel for the Bar Council pointed out, under Section 35 it is not only provisional misconducts but other misconducts which are unbecoming of an advocate causing damage to the reputation of the profession is also misconducts against which the Bar Council can take action. But for that also the complaint should disclose a specific cause of action. I have gone through Ext.P1 complaint which reads thus: “1) The first petitioner is the mother of petitioners 2 to 5. 2) The first petitioner's husband Vijayan is a Chronic Heart patient ans petitioners 2 to 5 are students. 3) The first petitioner's husband Vijayan is having 13 cents of land in Paravoor Village in Re-Sy.Block No. 32. Re-Sy. No. 387/28. The said property was belong to the Devarajan who is the brother of Narayanan. The said Narayanan is the father of the said Vijayan. 4) The respondent is a practising lawyer of High Court of Kerala. He purchased 53 cents of land in Re-Sy. No. 387/28 in Paravur village which is lying on the W.P(C) No. 29471 of 2008 -4- northern side of the said 13 cents of land, which is not separated with boundary. After purchasing the said 53 cents of land the respondent is running a Nursery school in the name and style Gurujyothi Model School. After purchasing the said 53 cents of land, the respondent and his wife Lethika is continuously making trouble to the petitioners. The respondent is belongs to Ezhava community and his wife belongs to Pulaya community. In the label of an ADVOCATE the member of Bar council of Kerala he is misusing the profession and professional ethics to perish and punish the petitioners. His mode of operation is so cruel and even inhumane. The respondent using his professional qualification as a background to punish the petitioners. The respondent as well as his wife are filing petitions back to back without any bonafides before the Paravoor Police station and the Paravoor Police are registering cases against the petitioners Till this date there are 63 cases against the petitioners. Out of 63 case 7 cases are filed u/s 3(1) (x) of SC ST Act. Out of 63 cases 4 cases are pending for trial and in other 59 cases the petitioner were acquirred or the police submitted refer charge to the court. Moreover the respondent is filing cases against Panchayat and Indian Railways. As is also an accused in an assault case inside the Paravoor Railway Station. Due to mischievous Act of Respondent which with backing of his profession once the respondents were even decided to end their life. The entire said cases were filed by misusing his professional ethics and professional dignity. He is using his enrolment in Kerala Bar Council as a powerful weapon against the petitioners and public at large. The respondent's act is purely professional misconduct and misuse of profession and against professional ethics. Even human rights were curtained and petitioners were put behind the bar and lock up in Paravoor police station due to false and frivolous complaint of the respondent. 5) The second counter petitioner, using the previlage of being a Dalit and the 1st counter petitioner as an Advocate, that too the position of “High Court Advocate” are very hectically engaged in loding vexatious and frivolous complaints against the petitioner and her family. All these are aimed at making them to surrender and to withdraw from the civil disputes. W.P(C) No. 29471 of 2008 -5- 6) The poor family has no means to withstand the conslaught of the High Court Advocate and his Dailit wife. We have no means to meet the expenses of these litigation. 7) Due to the illegal acts and false petitions the petitioners peaceful life and the education of petitioners 2 to 5 completely out of order and petitioners are put in to irreparable injury, loss and indebtedness. 8) So the petitioners humbly pray for necessary action against the counter petitioners since he is misusing his profession and professional ethics against the petitioners and 2nd counter petitioner is also making frivolous petition against petitioners. A detailed case filed against the petitioner is annexed herewith.” 6. Apart from general and vague allegation that the petitioner had misused his position as an advocate for filing complaints against the 2nd respondent and her family not even a single specific incident has been narrated therein, to explain how the 2nd respondent and her family has been harassed by the petitioner misusing his position as an advocate. The details of the complaints filed by the petitioner are also not disclosed. There is no law that an advocate cannot file a criminal complaint. 7. I have no hesitation to hold that the above complaint does not even remotely suggest any misconduct on the part of the petitioner. Not only the Bar Council but no body else also could have taken cognizance for an action for misconduct on the basis of Ext.P1 complaint. It would totally be a travesty of justice W.P(C) No. 29471 of 2008 -6- if the petitioner is asked to stand trial by the Bar Council of Kerala on the basis of Ext.P1 complaint. By the time the complaint is enquired into and dismissed, by that time the damage to the reputation would already have been done. I am not satisfied that this court should allow the 1st respondent Bar Council to proceed with further action based on Exts.P7 and P8 pursuant to Ext.P1 complaint which discloses no cause of action whatsoever against the petitioner. Accordingly Exts.P1, P7 and P8 are quashed. It is declared that the petitioner is not liable to be proceeded against under Section 35 of the Advocates Act for any misconduct on the basis of Ext.P1 complaint. The writ petition is allowed as above. S. SIRI JAGAN, JUDGE rhs